The case of Derwent Housing Association Limited v Taylor (2015) has provided clarification on whether a spouse who remains in the matrimonial home has continued rights of occupation if their partner has left the home and terminated the tenancy.
Derwent Housing Association ('Derwent') was landlord of a residential property in Nottingham. Mrs Taylor became sole tenant of the property in 2012 pursuant to an assured non-shorthold tenancy and occupied together with her husband Mr Taylor as the matrimonial home. For personal reasons, Mrs Taylor left the property in 2013. In February 2014 she served notice purporting to terminate the tenancy. Although the notice was defective, Derwent accepted it as terminating the tenancy on 2 March 2014. Mr Taylor failed to leave the property after the notice expired and Derwent issued possession proceedings.
Mr Taylor defended the proceedings on the grounds that:
- He was a joint tenant and as he did not agree to waive the defects in, nor consent to, Mrs Taylor's notice, the notice was invalid and the tenancy was ongoing;
- Under s.30(4) Family Law Act 1996 (FLA) his continued occupation was to be treated as occupation by Mrs Taylor as tenant;
- The scheme under the FLA gave effect to his rights under Article 1 (protection of property) and 8 (right to respect for privacy of family life and home) of the First Protocol of the European Convention on Human Rights (ECHR). Derwent was under a positive obligation to protect Mr Taylor's enjoyment of these rights and an order for possession would violate them;
- He also counterclaimed that, if he had no rights to occupy then as Mrs Taylor's spouse, he should have an occupation order under s.36 FLA.
At first instance the court said that the question of whether the tenancy was single or joint should go to trial, however it held that the defence under the FLA had no real prospect of success. Mr Taylor appealed.
The Court of Appeal was asked:
- Did s.30 FLA grant Mr Taylor (as non-entitled remaining spouse) his own rights of occupation in the absence of Mrs Taylor (as departed spouse) who was the sole tenant of the matrimonial home?
- If not, were Mr Taylor's rights under the ECHR violated, meaning the termination notice and decision to grant possession were unlawful under s.6 Human Rights Act 1998 (which requires public authorities not to act in a way which is incompatible with a Convention right)?
The Court of Appeal dismissed the appeal, holding that Mrs Taylor's notice was sufficient at common law to terminate the tenancy. S.30 FLA applies only where the non-entitled remaining spouse is entitled to occupy, not was entitled. As Mrs Taylor had terminated the tenancy and vacated, there was neither her tenancy nor her occupation for Mr Taylor to base his rights on. Under the FLA, the right not to be evicted was enforceable against Mrs Taylor, not against Derwent as landlord. There is nothing in the FLA which restricted Mrs Taylor's power to terminate her own tenancy.
This is consistent with the cases of:
- Sanctuary Housing Association v Campbell (1999) which held that under the Matrimonial Homes Act 1983 (MHA) (forerunner to FLA) a second spouse's rights depend on the first spouse retaining the right to occupy. There as nothing in the MHA which restricted the departing spouse's ability to terminate their tenancy;
- Hackney LBC v Snowden (2000) which confirmed there was no difference between the regimes under the MHA and the FLA in regulating the rights of spouses as between themselves, not between them and their landlord. It was open to a landlord and tenant to agree to waive the requirement for a valid notice to quit and that both parties had, in the light of the issues of domestic violence, clearly agreed to terminate the tenancy before the conclusion of the requisite four week notice period. Ultimately, Mr Taylor had no hope once Mrs Taylor had validly terminated the tenancy and vacated; this was not changed by the ECHR.
- Sims v Dacorum BC 2014 - the Supreme Court held that the common law rule that a periodic joint residential tenancy was terminated automatically if one joint tenant (without consent of the other) served a notice to quit on the landlord, was not incompatible with the other joint tenant's rights under ECHR Protocol 1 articles 1 and 8.
The Appeal was therefore dismissed and the matter transferred back to the County Court for determination of the possession order.
This case further narrows the scope for remaining spouses who are not formal tenants to argue they should have an indefinite ability to occupy once the sole tenant spouse has left the home. It provides valuable support for local authorities and housing associations needing to regulate the occupation of their properties where relationships between tenants break down, an absolute necessity given the current housing shortage.