Notices to Quit do determine tenancies says High Court

Article

22 October, 2010

A Notice to Quit is one of ways of determining a tenancy available to both landlords and tenants. Essentially, the notice is a document which can be served by either party and informs the other that they no longer consent to the tenancy continuing in the future. Subject to any statutory protection or any security of tenure, the tenancy will end upon the expiry of the Notice. It is also the case that a Notice to Quit cannot be withdrawn or cancelled once it has been served upon the other party.

In light of the effect that they can have upon tenancies, Notices to Quit have been the subject of judicial examination. One recent example of this was in the case of R (on the application of Husband) v Solihull Metropolitan Borough Council [2009] EWHC 3673 where a tenant sought to apply for judicial review of the Council's decision to recover the tenanted property.

The Facts

The tenant (H) and his wife were joint tenants of a property from February 2006. Due to the marriage problems which existed, Birmingham County Court had granted a non-molestation order and an exclusion order against H in June 2008 which prevented him from being at the property until 19 February 2009.

On 9 February 2009, H's wife suggested to the Council that she wanted to terminate the tenancy. The Council stated that it informed H's wife of the effect that terminating the tenancy would have upon H. Nevertheless, H's wife provided the Notice to Quit (which was to expire on 16 March 2009) and the keys to the property on or about 12 February 2009.

H stated that he returned to the property on 19 February (by which time his wife had already left the property). Various letters were sent to H by the Council after this date, including a letter on 17 March 2009 which notified H that the tenancy had ended. No reply was received by the Council. On 26 March 2009, a Council housing officer attended at the property and found it to be empty, except for a bedstead. It was also said that the locks had been changed. Possession proceedings were then started and H then sought permission to seek judicial review of the Council's decision to treat the property as abandoned and to refuse to readmit him to the premises.

In doing so, H argued that the unqualified right held by a landlord to possession of a property when a joint tenant has determined the tenancy (as established in Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478) was incompatible with the European Convention on Human Rights.

The High Court's Decision

The High Court dismissed the application and it was held that in H's case, it would not be appropriate for permission to be granted. Mr Justice Beatson ruled that the arguments in relation to Monk had previously been heard and dealt with by previous case law: Doherty v Birmingham City Council [2008] UKHL 57; Wandsworth London Borough Council v Dixon [2009] EWHC 27. Mr Justice Beatson continued to say:

"In my judgment, it is not, in the state of English law now, arguable that the unqualified right to possession by a landlord is incompatible with Article 8; or indeed, in the light of Sheffield [City Council] v Smart [2002] HLR 34, with Article 1 Protocol 1 of the Convention."

In relation to H's case, it was held that its facts meant it was unsuitable for judicial review. The Council's housing officer had attended the property and found it apparently abandoned save for a bedstead and mattress. H had also not been there and he had not replied to any of the Council's correspondence. In such circumstances, the court held that it could not be argued that the Council had behaved unreasonably in acting upon the Notice to Quit.

Summary

This case has shown that the courts are reluctant to interfere with the consequences of a Notice to Quit, provided that all relevant legislation has been complied with. It has also highlighted the English courts stance that it cannot be argued that an individual's rights under the European Convention on Human Rights are breached because of the existence of a landlord's unqualified right to possession.

It is advised that all social landlords are aware of the law surrounding the use of Notices to Quit, their effect and the human rights arguments surrounding them.

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

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