One for all and all for one

Sims v Dacorum Borough Council (1) and Secretary of State for Communities and Local Government (2) - [2014] UKSC 63

Summary

Following several high profile break clause cases in recent years, the Supreme Court has now considered the application of human rights legislation to notices to quit. 

The Court has ruled that a notice to quit served by one joint tenant alone is sufficient to determine a tenancy and that this decision is not in breach of Article 8 or Article 1 of the First Protocol to the European Convention on Human Rights.

Although important for joint tenants, the decision will also be important for landlords, who will need to be careful to avoid inadvertently granting rights to any tenants who remain in occupation after a joint tenancy has been terminated.

The facts

Where a tenancy is held by more than one person, they are joint tenants. It has long been established by the Courts, most famously in the 1992 case of Hammersmith and Fulham LBC –v- Monk [1992] AC 478, that in the absence of a specific requirement in the lease for all parties to sign, a notice to quit served by one joint tenant will be sufficient to terminate the lease.

In 2002, Mr and Mrs Sims became the joint tenants of a residential house in Chipperfield which they rented from the Council.  The property was let to the tenants on a secure weekly tenancy under the Housing Act 1985 ("the 1985 Act"). The implication of the 1985 Act was that the Council could not terminate the tenancy unless it served notice on a fixed statutory ground and then obtained a Court order. However, after the first year, it was possible for the tenants to serve four weeks' notice to quit.

Unfortunately by 2009, the tenants' marriage had broken down, and Mrs Sims moved out of the Property in March 2010.  She was advised that she was unable to apply for new housing whilst she remained a joint tenant under her tenancy agreement with Mr Sims, and so she served notice to quit. The notice terminated the tenancy agreement on 26 July 2010. Under the terms of the tenancy agreement, the Council was then able to decide whether to allow Mr Sims to remain in the property, or whether to offer him more suitable accommodation.

Mr Sims continued to live in the Property following the expiry of Mrs Sims' notice, and requested a tenancy in his sole name. The Council carried out various internal reviews, but ultimately refused Mr Sims' request. Possession proceedings were issued in October 2010 and the matter came to trial, following further reviews by the Council, in December 2011.

The Court found that Mrs Sims' notice had been sufficient to terminate the lease. In particular, the judge was satisfied that the Council had considered the decision carefully, so as to comply with Mr Sims' human rights, and that she was bound by the Monk precedent to find that a notice to quit by one joint tenant was sufficient. Consequently it was right to make a possession order.

Mr Sims appealed on the grounds that the binding decision in Monk was incompatible with Article 8 and that the Court of Appeal should change the law. The Court of Appeal dismissed the appeal, and Mr Sims applied to the Supreme Court to resist the decision in Monk on the basis that it infringed his human rights.

The issues

Mr Sims' appeal to the Supreme Court was based on his contention that he had been wrongly deprived of his home, as he had been given no say over the termination of the tenancy. To support his position, he relied on two Articles in the European Convention on Human Rights:

  • Article 1 of the First Protocol, concerning the right to peaceful enjoyment of property; and  
  • Article 8 of the Convention, which grants the right to respect for private family life and an individual's home.

The decision

The Court rejected Mr Sims' arguments and held that the Council was entitled to possession of the Property. 

On Article 1, the Court found that there was a specific clause in the tenancy agreement which dealt with its termination. As Mr Sims had been a party to the tenancy agreement and he had agreed to the termination provisions, it was not sustainable for him to argue that he had been unfairly deprived of his property.

In the circumstances, Mr Sims could only argue that the clause was irrational or so unreasonable as to offend his right to enjoy the property. Alternatively, he could argue that the Council had acted unfairly or irrationally when making its decision as to whether to allow him to remain in occupation. The Court held that the termination clause was consistent with the binding precedent of Monk and that Mr Sims was protected by the requirement for the Council to consider whether to allow him to remain or to relocate him.

In particular, the Court found that it was not an unreasonable provision, since there would always be one party who had to suffer if one joint tenant served a notice to quit. In this case, it would not have been fair for Mrs Monk to remain a joint tenant, and therefore unable to secure alternative housing. Similarly, it would not be fair for the landlord, who would have been left with one tenant instead of two, and thus half the security.

On the Article 8 points, the Court agreed that Mr Sims was entitled to raise the question of the proportionality of the Council's claim for possession. However, in this case, taking into account the relevant facts and the Council's careful decision-making process, the order for possession was correct.

Mr Sims' rights were accorded full respect by the fact that his tenancy was determined in accordance with contractual terms to which he had agreed. Under the Protection from Eviction Act 1977 he could not be evicted without a court order, and when deciding whether to make that order, the Court had to be satisfied that the Council was entitled to possession as a matter of law. It followed from this that the Court could not make a possession without permitting Mr Sims to dispute it on the basis that it would be disproportionate to evict him.

Consequently the Court held that Mr Sims' rights had been duly considered, both by the Council and by the Court at first instance.  He could not have been evicted without due process and he had clearly been afforded this.

Our advice

Although private landlords will be less concerned than local housing authorities, the case is nevertheless useful to confirm the position on human rights and notices to quit for joint periodic tenants.

As the Court explained in its judgment, whilst the decision may seem harsh for a tenant such as Mr Sims who did not wish to vacate, the alternative could have led to a tenant being forced to remain a tenant against her will, or a landlord being forced to allow a property to remain under-occupied.

Unless the case is appealed to the European Court of Human Rights in Strasbourg, it looks like the decision in Monk will remain binding law.  In the circumstances, a notice to quit served by one joint tenant under a periodic tenancy will continue to bind the other, unless there is anything specific in the contract. Consequently the case is an excellent reminder for joint tenants when it comes to the service of notices to quit.

The case will also have significant consequences for landlords.  Where one tenant has served notice and departed, the lease will be at an end. Therefore, if any joint tenants remain in occupation, they will likely do so under a new tenancy, which could mean that they obtain statutory security.  It will therefore be important to take advice to ensure that rights are not granted inadvertently in this type of scenario.