Joint tenancy rule has nothing to do with Convention rights

25 January 2013 by Rosalind English

Michael Sims v Dacorum Borough Council [2013] EWCA Civ 12 – read judgment

This was a property dispute which broke out on the marriage breakdown of two joint tenants of council property.  The wife who sought termination of the periodic secure joint tenancy by unilateral notice. The husband, as the other joint tenant still living in the property, maintained that he was entitled remain there as a sole tenant.

In fact, the point had already been settled in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 which established that at common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord. The Court of Appeal, bound by this House of Lords judgment, was therefore being asked to grant permission to appeal to the Supreme Court and stay the possession order, so that Mr Sims could challenge, under the 1998 Act, the compatibility with the ECHR of the current state of the law on the termination of periodic joint tenancies of residential property.

The arguments

The husband’s case was that, in order to achieve compatibility with Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol under the Human Rights Act 1998, English law was required to recognise that he had a sole tenancy of the property as his home, following his wife’s . It was argued on his behalf that the effect of Monk was to destroy the legal rights of Mr Sims in the secure tenancy of his home without giving him any opportunity to participate in, or to influence the outcome of, the relevant legal process of service of the notice and its termination of the joint tenancy. The Strasbourg authorities show that a “home” can exist without legal rights of occupation, so that a property can still be a “home” within Article 8 after the termination of a tenancy. As far as Article 1 Protocol 1 was concerned, it was contended that a notice to quit given by one joint tenant to the landlord was incompatible with the other tenant’s peaceable enjoyment of possessions, since he was consequently disturbed in occupation and threatened with eviction.

The Council submitted that neither Article 8 nor Article 1 Protocol 1 was engaged and that there had been no interference with those rights. The termination of the joint tenancy by Mrs Sims was allowed by the nature of the bargain that the parties had made on the letting of the property. As such, said the Council, the points taken on behalf of Mr Sims were not arguable points of law of general public importance which would justify consideration by the Supreme Court.

The judgment

Mummery LJ’s rejection of these arguments is brief and robust, summed up in five bare paragraphs. The proposed appeal to the Supreme Court was “unarguable”.:

I cannot think of a sensible purpose that would be served by the expenditure of yet more public funds (on both sides) on a repeat of this debate before five (or even more) Justices of the Supreme Court of the United Kingdom.

There was simply no incompatibility between the rules of English property and contract law relating to the termination of a joint tenancy by one joint tenant and the ECHR. In essence, Mr Sims was seeking by this challenge to “enhance property rights conferred by contract by securing for him a sole tenancy of the Council’s property without the concurrence of the Council as owner of the property.”  If the court were to uphold this appeal, Mr Sims would acquire contract rights that would be binding on the Council, rights exceeding those that  he and his wife had originally acquired from the Council by agreement.

Stating the matter quite baldly, he is aiming, by use of the ECHR, to obtain a tenancy of a three bedroom family house for himself in place of the joint tenancy of a family home which the Council had originally granted. That seems to me to be more a case of interference with the Council’s enjoyment of its possessions than of an interference by the Council with the possessions of Mr Sims.

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