Michael Sims v Dacorum Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Etherton,Sir Scott Baker |
| Judgment Date | 24 January 2013 |
| Neutral Citation | [2013] EWCA Civ 12 |
| Docket Number | Case No: B5/2012/0843 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2013 |
[2013] EWCA Civ 12
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WATFORD COUNTY COURT
DEPUTY DISTRICT JUDGE WOOD
Claim No: OWD03363
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Etherton
and
Sir Scott Baker
Case No: B5/2012/0843
MR ANDREW ARDEN QC and MR TOBY VANHEGAN (instructed by Arkrights Solicitors) for the Appellant
MR ANDREW LANE and MR DEAN M UNDERWOOD (instructed by Dacorum BC Legal, Democratic & Regulatory Department) for the Respondent
Hearing date: 9 th October 2012
Introductory
This property dispute broke out on the marriage breakdown of two joint tenants, who were entitled to a secure periodic tenancy of residential property let by a public authority. What is the legal position when only one of two joint tenants, in this case the wife, gives notice to the authority quitting the joint tenancy? Does the other joint tenant, in this case the husband still living in the property, have a right to remain there as a sole tenant?
The husband's case on this appeal is that, in order to achieve compatibility with Article 8 of the European Convention on Human Rights (ECHR) and Article 1 of the First Protocol and the Human Rights Act 1998 (the 1998 Act), English law is required to recognise that he has a sole tenancy of the property as his home, following his wife's termination of the periodic secure joint tenancy by unilateral notice. The ECHR points are taken by the husband in the possession proceedings that the authority has taken against him.
In his only remaining defence to a possession order the husband's reliance on the following matters is emphasised. He did not himself give any notice to quit the joint tenancy. He did not concur in the notice given by his wife. He did not receive any prior notice from either his wife or the authority. As the property is still his home, he is entitled to respect for it under Article 8. As the property was one of his possessions, he was entitled to protection from interference with his enjoyment of it under Article 1 of the First Protocol to the ECHR. The recognition of his sole tenancy of the property would give legal and practical effect to his ECHR entitlements.
The ECHR points arise in the appeal brought by the husband, Mr Michael Sims, against the order for possession of the former matrimonial home obtained on 16 December 2011 by Dacorum BC (the Council). The property had been let by the Council to Mr Sims and his wife, Sharon, as joint tenants. The possession order was made by Deputy District Judge Wood in the Watford County Court on the basis that Mrs Sims had validly terminated the joint tenancy by notice to the Council. In accordance with well established principles of contract and property law there was no longer in legal existence any tenancy under which Mr Sims could claim the right to occupy the property as a secure tenant, jointly, solely, or in any other recognised legal capacity.
The most striking feature of this appeal is that Mr Andrew Arden QC, who now appears for Mr Sims, agrees that this court must dismiss it. The real contest is whether this court should grant permission to appeal to the Supreme Court and stay the possession order, so that Mr Sims can 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 court has spent a day receiving submissions from both sides.
The legal position was settled by the House of Lords in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 at 483E and 491A per Lord Bridge ( Monk) before the 1998 Act came into force and it has been followed in cases decided after the 1998 Act came into force. In Monk the House of Lords held 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 case advanced for Mr Sims is that, according to Monk, the notice to quit served by Mrs Sims on the Council has unilaterally deprived him of his legal interest in the property and of his statutory protection against the Council recovering possession of the property lived in by him as his home for the last 10 years or so.
Mr Andrew Arden QC says that the law laid down in Monk, which he accepts is binding on this court, fails to accord the required respect for the home of Mr Sims and/or is inherently an interference with the enjoyment of his possessions and a deprivation of his property rights. The required compatibility with the ECHR could be achieved, if the notice to quit in such circumstances were treated by the court as a release to Mr Sims of the interest of Mrs Sims in the property. Mr Sims would then be entitled to remain in occupation of his home and to protection as the sole tenant. In that way the law would, as it should, respect his home and protect the enjoyment of his possessions in accordance with the guarantees of the ECHR.
How should this court deal with this contested application for permission to appeal to the Supreme Court?
It would not, in my view, be right for this court simply to refuse the permission application on the basis that both sides have agreed that the appeal to this court should be dismissed. Nor would it be a judicially responsible procedure for this court simply to grant permission, unless it was first satisfied that the ECHR points are reasonably arguable, which the Council insists they are not.
The appeal comes to this court with permission granted on 12 April 2012 by Aikens LJ. He also stayed the possession order. The appeal from the Deputy District Judge to the county court judge was granted permission, but the appeal was then transferred to this court without any intervening substantive judgment on that appeal. In those circumstances the Supreme Court and the parties are entitled to expect this court to deliver a more fully reasoned judgment than it normally would when refusing or granting an application for permission to appeal to the Supreme Court.
This judgment is intended to assist the appellate process by setting out the basic facts, identifying the issues and summarising the legal submissions that are bound to be repeated to the Supreme Court either (a) on an application to it for permission to appeal, if we refuse permission, or (b) on the substantive appeal, if we grant permission.
Basic facts
By a written tenancy agreement dated 15 March 2002 the Council granted to Mr & Mrs Sims jointly an introductory tenancy of a 3 bedroom house at 5 Dunny Lane, Chipperfield, Kings Langley, Herts (the property). The tenancy became a joint secure weekly tenancy as from 15 March 2003.
The Tenancy Agreement provided that, as regards "Ending joint tenancies",-
"100. Where either joint tenant wishes to terminate their interest in a tenancy they must terminate the full tenancy as in (92) above.
101. We will then decide whether any of the other joint tenants can remain in the property or be offered more suitable accommodation."
On the break up of their marriage after, it is alleged, bouts of domestic violence by Mr Sims, his wife left the property in March 2010 with their two youngest children and moved into a women's refuge. She wrote to the Council to say that she wanted to give up her tenancy. The Council replied suggesting that she serve a notice to quit. On 25 June 2010 she gave notice to the Council purporting to terminate the tenancy to expire on 26 July 2010.
By letter dated 19 July 2010 the Council had refused the request by Mr Sims to allow him to remain in the property and to transfer the tenancy into his sole name. He was informed that he had no legal right to stay in the property. The Council upheld its decision on subsequent internal reviews in December 2010 and June 2011. It had already issued possession proceedings against him on 28 October 2010.
In the defence it was pleaded, inter alia, that Monk was incompatible with the Article 8 rights of Mr Sims and that the court should construe the common law to make it compatible. The plea failed and a possession order was made. Mr Sims appealed on a number of grounds. The only ground now pursued is that the deputy district judge was wrong in law to decide that the service of the notice to quit by one joint tenant was effective to terminate the joint secure tenancy when that state of the law breached the rights of Mr Sims under Article 8 and Article 1 of the First Protocol of the ECHR. The latter ground was added by amendment.
Judgment below
In a 32 page handed down judgment the Deputy District Judge concluded that it was lawful and proportionate to make an order for possession. She said:-
"79. Having reviewed the Council's decisions to refuse Mr Sims a new tenancy and to bring...
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