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Justin BatesThe Supreme Court has held that the rule in LB Hammersmith and Fulham v Monk [1992] 1 AC 478; (1992) 24 HLR 360 is not incompatible with Art 8 or A1/P1 of the ECHR, such that (absent a term of the tenancy to the contrary) a notice to quit served by one joint tenant determines the tenancy; the rights of the remaining occupiers are adequately protected by the possibility of raising a proportionality defence.

The ECHR, Art 8, provides, inter alia, that everyone has the right to respect for his home (Art 8(1)). There may be no interference with that right by a public authority except in accordance with the law and so far as is necessary in a democratic society (Art 8(2)).

A1/P1 provides, inter alia, that every natural or legal person is entitled to the peaceful enjoyment of his possessions and may not be deprived of them except in the public interests and subject to conditions provided for by law.

In the pre-Human Rights Act 1998 case of LB Hammersmith and Fulham v Monk [1992] 1 AC 478; (1992) 24 HLR 360, the House of Lords held that – unless the tenancy agreement provides otherwise – a notice to quit given by one joint tenant without the concurrence of any other is effective to determine a periodic tenancy, with the result that the landlord obtains an unqualified right to possession. In LB Harrow v Qazi [2003] UKHL 43; [2004] 1 AC 983; [2003] HLR 75 (a joint tenancy/notice to quit case), the House of Lords held that there was no violation of Art 8 where the law affords an unqualified right to possession on proof that the tenancy had been terminated. In later cases, the House of Lords likewise resisted attempts to use Art 8 as a defence to possession proceedings by local authorities: see Lambeth LBC v Kay [2006] UKHL 10; [2006] 2 AC 465; [2006] HLR 22; Birmingham CC v Doherty [2008] UKHL 57, [2009] 1 AC 367, [2008] HLR 45.

In a number of cases in the ECtHR, however, it was held that a person at risk of losing his home should, in principle, be able to have the proportionality of the measure determined by an independent tribunal, notwithstanding that, under domestic law, his right of occupation has come to an end: see, e.g. Blečić v Croatia (2004) 41 EHRR 185; McCann v UK [2008] HLR 40; Cosic v Croatia App. No. 28261/06; Paulic v Croatia App. No. 3572/06; and Kay v UK [2011] H.L.R. 2.

Following these cases, the Supreme Court decided in Manchester CC v Pinnock [2010] UKSC 45; [2011] 2 A.C. 104; [2011] H.L.R. 7, not to follow Qazi, Kay and Doherty but that domestic law should follow the jurisprudence of the ECtHR so that a person at risk of being dispossessed of his home by a public authority should have the right, under Art 8, Sch 1, Human Rights Act 1998, to challenge the proportionality of his eviction and to have it (and any disputed facts necessary to its determination) decided by an independent tribunal notwithstanding that, under domestic law, his right of occupation had come to an end. In Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; [2011] 2 A.C.18; [2011] H.L.R.23, it was held that the decision in Pinnock was of general application whenever a public authority sought possession of a property that constitutes a person’s home.

In Buckland v UK [2013] HLR 2, the ECtHR held that a power (in the Caravan Sites Act 1968, prior to amendment by the Housing and Regeneration Act 2008) whereby an occupier could apply for a 12-month suspension of an order for possession (if needs be, repeatedly) was insufficient to avoid a breach of Art 8, because suspension merely delayed but did not remove the threat of eviction from the home.

In March 2002, Dacorum BC granted Mr Sims and his wife a joint introductory tenancy of a three-bedroom house. The tenancy subsequently became a joint secure weekly tenancy. The tenancy permitted a joint tenant to serve notice to quit and determine it.

After alleged domestic violence, Mrs Sims left the property in 2010 with two of their four children. She sought to be re-housed by Wycombe District Council, who told her that she would not be re-housed whilst she held a tenancy with Dacorum. She told Dacorum that she wanted to give up her tenancy and Dacorum suggested that she serve notice to quit, which she did.

Mr Sims asked Dacorum to let him stay in the property and transfer the tenancy into his sole name. They refused and subsequently issued possession proceedings. These were defended, inter alia, on the basis that the rule in Monk was incompatible with Art 8. The Deputy District Judge made a possession order on December 16, 2011. The appellant appealed to the Circuit Judge who granted permission for a leapfrog appeal to the Court of Appeal, which dismissed the appeal ([2013] EWCA Civ 12; [2013] H.L.R. 14).

Mr Sims appealed to the Supreme Court, contending that the rule in Monk was incompatible with Art 8 and/or A1/P1. If that was correct, then the Supreme Court should either:

(i) reverse Monk, so that a joint tenant’s notice to quit was not effective to determine the tenancy; or,

(ii) leave Monk in place and leave it to Parliament to address the incompatibility, but declare that, pending Parliament doing so, a public authority would act unlawfully by inducing or facilitating the service of a notice to quit by one of a number of joint tenants to whom it has granted a tenancy of its housing.

The appeal was dismissed. The rule in Monk was not incompatible with A1/P1. It had always been the case that the tenancy could be determined by his wife giving notice to quit and Mr Sims had therefore lost his tenancy in circumstances and in a manner which was specifically provided for in the agreement. The terms of the tenancy (and the common law rule in Monk) were not unreasonable; if Monk were reversed then one tenant could be forced to remain a tenant against her will or a landlord left with one tenant where he previously had two. There was also no violation of Art 8. Mr Sims had been entitled to raise a proportionality defence in the county court and had done so. The Deputy District Judge had considered all relevant factors and found it proportionate to grant a possession order. The decision in Buckland v UK did not assist Mr Sims; it was only authority for the proposition that an occupier needed to have the opportunity to argue that no possession order should be made.

Republished with kind permission. This post originally featured on Arden Chamber’s website and can be found here.

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