A Notice to Quit does not infringe human rights rules High Court

Article

02 July, 2010

When one joint tenant decides that they wish to stop living at the tenanted property, it is often the case that they also wish to end their legal obligations towards the tenancy. If a tenant simply leaves without following the correct procedure, they can still be liable for the payment of rent and other conditions of tenancy. If however they serve a valid Notice to Quit, then it ends the tenancy upon its expiry and they are free from these requirements.

In doing so, the departing joint tenant puts the remaining tenant or tenants in a vulnerable position as there will be no tenancy in existence for them to rely upon and they will have no legal right to remain there. The landlord will then have an unqualified right to possession of the property. This method of unilaterally terminating a tenancy has been the subject of a number of cases brought before the courts, with the most recent example being Wilson (by her Litigation Friend The Official Solicitor) v London Borough of Harrow [2010] EWHC 1574. Arguments have been forwarded that the procedure is not compatible with the European Convention on Human Rights

The decision of the High Court in this case should be noted by all social housing providers who deal with joint tenancies.

The Facts

The tenant (W), who had a 2 year old daughter, became the sole tenant of a two bedroom flat in 1992. In 1994 she married and the tenancy was granted to herself and her husband. W began suffering from post-natal depression after the birth of her second child in 2001 and rent arrears began to accrue from 2005. In 2006, W's husband decided that he could not live with W any longer and began to discuss the options available to him with the housing management officer of the Council. W's husband voiced his intentions and the implications of a Notice to Quit were discussed with him.

Further discussions took place in early 2007 and attempts were made to offer advice to W on how to apply for and obtain benefits. These were not acted upon by W. In February 2007, the Council wrote to W's husband about the level of rent arrears and also enclosed a blank Notice to Quit. The letter stated what would happen if the Notice was served upon the Council and advised W's husband to obtain legal advice before making a decision.

In March 2007, W's husband served the Notice upon the Council. This meant that the joint tenancy terminated at the end of April 2007. Various efforts were then made to get W to apply for a sole tenancy. This was eventually done but was rejected by the Council. Possession proceedings were then started.

When the case was heard in the County Court, an order for possession of the property was granted in addition to an order for the rent arrears. It was said that the Council had hundreds of households in temporary accommodation, on the Housing Register and the Transfer Register who were all seeking two bedroom accommodation and it was therefore not unreasonable to seek possession. The judge said that it was fundamental to the Council's decision that W was 'over housed' and that her needs could have been met in a one bedroom flat.

W then appealed to the High Court on the grounds that the Notice to Quit procedure, which has been termed as 'the rule in Monk' (London Borough of Hammersmith and Fulham v Monk [1992] 1 AC 478), is not compatible with Article 8 of the European Convention on Human Rights which provides a right of respect for the individual's home. It was also submitted that the Council's housing management officer should have advised W's husband on the whole range of options open to him and that he had been 'induced' into serving the Notice to Quit.

The High Court's Decision

The High Court dismissed W's appeal on both grounds. In relation to the first point, it held that there had been previous case law (Wandsworth London Borough Council v Dixon [2009] EWHC 27 and Harrow London Borough Council v Qazi [2004] 1 AC 983) that the rule in Monk was compatible with Article 8. The court noted that the rule in Monk was introduced into English law before the European Convention was and that until the Supreme Court ruled that the decision in Qazi was no longer representative of the law, the argument that there was incompatibility with W's human rights was not arguable. The analysis provided in Dixon was affirmed in that since it had been clear from the outset of the tenancy that it could be terminated in such a manner, there would not be an infringement of the tenant's rights under Article 8.

On the second point, the court held that there was nothing amiss in the conduct of the Council's housing management officer. The court observed that the trial judge had in fact referred in an approving manner to the conduct of the officer and that efforts had been made by her to assist W. The court said that in this situation, the best that could be done (as done by the officer) was to advise on obtaining independent legal advice.

Summary

This case has affirmed the rule in Monk and means that the serving of a valid Notice to Quit by one joint tenant will fully terminate the tenancy. It should be noted however that permission to appeal was granted in this case which means that there may be further judicial consideration of this issue in the future. Therefore, all social housing providers should be aware of this decision and any later developments that may occur.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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