Newlon Housing Trust v Alsulaimen
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,MR. JUSTICE CAZALET |
| Judgment Date | 16 January 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0116-5 |
| Date | 16 January 1997 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 96/1210/H |
[1997] EWCA Civ J0116-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EDMONTON COUNTY COURT
(His Honour Judge Tibber)
Royal Courts of Justice
Strand, London WC2
Lord Justice Nourse
Mr. Justice Cazalet
CCRTF 96/1210/H
and
MR. S. BUCKHAVEN (instructed by Messrs. Martin Shepherd & Co., Enfield) appeared on behalf of the Appellant First Defendant.
MR. O. CAMPBELL (instructed by Messrs. Devonshires, London EC2) appeared on behalf of the Respondent Plaintiff.
Thursday, 16th January 1997
In Hammersmith and Fulham London Borough Council v. Monk [1992] 1 AC 478 the House of Lords decided that a contractual periodic tenancy held by two or more joint tenants continued only so long as they all agreed to its continuation, so that, in the absence of any contrary term in the agreement, the tenancy was determinable by a notice to quit given by one joint tenant without the concurrence of the other or others. At p.491F, Lord Browne-Wilkinson, having prefaced his speech by observing that there were two instinctive reactions to that case which led to diametrically opposite conclusions, said:
"The first is that the flat in question was the joint home of [Mr Monk] and Mrs Powell: it therefore cannot be right that one of them unilaterally can join the landlords to put an end to the other's rights in the home. The second is that [Mr Monk] and Mrs Powell undertook joint liabilities as tenants for the purpose of providing themselves with a joint home and that, once the desire to live together has ended, it is impossible to require that the one who quits the home should continue indefinitely to be liable for the discharge of the obligations to the landlord under the tenancy agreement.
… The revulsion against Mrs Powell being able unilaterally to terminate [Mr Monk's] rights in his home is property based: [Mr Monk's] property rights in the home cannot be destroyed without his consent. The other reaction is contract based: Mrs Powell cannot be held to a tenancy contract which is dependant for its continuance on the will of the tenant."
In that case, Mr Monk and Mrs Powell being unmarried, there was no power in the court to impose a solution which would have both preserved Mr Monk's home and relieved Mrs Powell of her contractual liability in respect of it. Here we have a case where joint tenants under a contractual periodic tenancy were, when they ceased to live together, a married couple. In such a case the tenancy is a joint asset which the court can order to be transferred into the sole name of one or other party to the marriage under section 24(1)(a) of the Matrimonial Causes Act 1973, thereby relieving the other party of further contractual liability to the landlord; see Thompson v. Thompson [1976] Fam. 25. There must be many cases where such a tenancy is the most valuable asset, perhaps the only asset, available to the parties. It is natural that the court, while looking always to protect the landlord's interests, should be disposed to use every power available to it in order to prevent the unilateral destruction of such an asset by one party to the marriage.
By a written tenancy agreement dated 26th April 1994 the plaintiff, Newlon Housing Trust (a registered housing association), granted to the defendants, Mr Rateb Alsulaimen and his wife Mrs Tonie Alsulaimen, an assured weekly tenancy of a two-bedroomed flat on the second floor of 86 Hertford Road, London N9, the tenancy to begin on Monday, 2nd May 1994. By clause 3(12) of the agreement the defendants agreed:
"Not to assign the Tenancy except in furtherance of a court order made under Section 24 of the Matrimonial Causes Act 1973 or with the written consent of the Trust when exercising the right to exchange set out in 5(6) below."
The defendants, to whom for ease of reference I will refer as the husband and the wife, were married in November 1991. The husband is a Syrian by birth, who has no relatives in this country. The wife was born in Cyprus. They have two children, a daughter born on 6th September 1992 and a son born on 6th December 1995. In April 1995 the parties separated. The wife left the flat and went to live with her parents, taking the daughter with her. On 19th September 1995 a decree nisi of divorce was pronounced. On 1st November 1995 the wife gave a notice to the plaintiff in the following terms:
"I Mrs T. Sulaimen hereby give you NOTICE TO QUIT that I shall deliver up possession of [the flat] on 4 December 1995 or the day on which a complete period of the tenancy expires next after the end of four weeks from the service of this Notice."
4th December 1995 having been a Monday, it seems clear, first, that that notice was, by virtue of the decision in Monk's case, effective at common law to determine the tenancy on that date and, secondly, that it satisfied the requirements of section 5(1) of the Protection from Eviction Act 1977. The contrary has not been suggested. Thereafter the husband was technically a trespasser. Very properly, however, a further notice to quit was given to him in December 1995. By that time a decree absolute had been pronounced, on 22nd November.
On 28th March 1996 the plaintiff issued a summons for possession of the flat in the Edmonton County Court with a return date of 6th June. In addition to a claim for possession based on the notice to quit, the particulars of claim sought arrears of rent calculated to 4th December 1995 in the sum of £1,305.04, together with mesne profits from that date until possession was given. On or about 28th April 1996 all arrears of rent were paid off out of housing benefit available to the husband and since then the rent from time to time due has been paid from the same source.
It appears that the husband had first instructed solicitors to act for him in August 1995. However, on 3rd May 1996 his present solicitors took over, when they received the papers in the case from those who had previously acted. At that time they were also instructed in respect of his matrimonial affairs. They were unable to see the husband in connection with the possession action until 22nd May. On 24th May they wrote to the plaintiff's solicitors, enquiring whether, now that all arrears had been paid off, the plaintiff was intending to proceed with that action. On 28th May their enquiry was answered in the affirmative. On the same day they applied for legal aid to pursue an application under section 37 of the Matrimonial Causes Act 1973, a certificate being granted on 3rd June. On the same day the husband's solicitors wrote to the plaintiff's solicitors informing them of the husband's intention to make an application under section 37 and requesting them to consent to the adjournment of the possession hearing on 6th June until after it had been determined. On 4th June the plaintiff's solicitors wrote refusing consent. On 5th June the husband was granted legal aid in respect of the possession action.
It was in that state of play that the plaintiff's application came before His Honour Judge Tibber on 6th June. I will read counsel's note, as approved by the judge, of his judgment almost in full:
"This is a claim for possession of premises at flat 3, 86 Hertford Road to which there is no answer at all because this was a joint tenancy to Mr and Mrs Alsulaimen. Mrs Alsulaimen moved out and gave notice to quit to the Plaintiff and therefore there is no defence at all and these matters are admitted by the Defendant.
Miss Baum appears and asks me to adjourn the matter because Mr Alsulaimen intends to apply under the Matrimonial Causes Act for transfer of the tenancy to himself and seeks to set aside the notice to quit. I am not at all sure that a section 37 application would be successful but that is not a matter which I have to determine this morning.
I do have to determine whether it is right to grant an adjournment at the last minute. I understand that the reason [for the delay] is a change of solicitors and that there is now legal aid for an ancillary relief application. But the fact is that this summons was served on 9th April 1996 by posting on 2nd April 1996 and this application was made at the last minute. I have to consider fairness between the parties. The housing trust are entitled to an order today and I refuse the application for an adjournment."
The judge made an order for possession in 28 days and ordered the husband to pay the plaintiff mesne profits at the rate of £44.99 per week until possession was given. He refused the husband leave to appeal.
On 17th June the husband was granted legal aid for an application to this court for leave, and on 28th June an application was duly made. On 3rd July the husband went back to Judge Tibber and sought a stay of the possession order pending the determination of the application for leave to appeal. The judge refused to grant a stay, stating, correctly, that that was now a matter for this court. On 21st August 1996, a warrant of possession having been issued but not yet executed, a division of this court consisting of Russell, Saville and Aldous LJJ granted the husband leave to appeal and a stay on the warrant pending the outcome of the appeal, which they ordered to be expedited. The appeal now comes before us.
By his notice of appeal the husband seeks an order setting aside the order for possession and an order that the plaintiff's application for possession be adjourned generally, in other words until after the determination of his application under section 37. In support of the appeal Mr...
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Harrow London Borough Council v Johnstone
...with the first of the points which he makes, and as to the second it is important to note the concession made by counsel in Newlon Housing Trust v. Al- Sulaimen ( The Times, 24 January 1997). The correctness of this concession may, I believe, have to be examined if the point comes before th......
- Newlon Housing Trust v Alsulaimen