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Long live the Conventional Monk

The Supreme Court has handed down an eagerly-awaited judgment in the appeal of Sims v Dacorum Borough Council (Respondent) and Secretary of State for Communities and Local Government (Intervener) [2014] UKSC 63.
In a unanimous judgment, the Court has held today that the common law rule in Hammersmith & Fulham London Borough Council v Monk [1992] AC 478 ('Monk') - which allows one or more of joint tenants to terminate their tenancy unilaterally, without reference to the others, by serving a notice to quit on the landlord – is not incompatible with Article 8 of- or Article 1 of the First Protocol to the European Convention on Human Rights (hereafter 'Article 8', 'Article 1P' and 'ECHR' respectively).
Ranjit Bhose QC represented Dacorum Borough Council, leading Cornerstone Barristers' Andrew Lane and Dean Underwood.

The Issue

Mr Sims' appeal concerned the long-standing, common law rule – affirmed in Monk – that, absent any tenancy terms to the contrary, the service of a valid notice to quit by one or more of joint tenants will end a joint tenancy on behalf of all such tenants, whether or not the others agreed to- or indeed knew about service of the notice.
Mr Sims argued that the Supreme Court should 'revisit' Monk in light of his rights under Article 8 ECHR, which provided him with a qualified right to respect for his home and family life, and/or Article 1P ECHR, which provided him with a similarly qualified right to the peaceful enjoyment of his possessions.

Summary of Facts

On 15 March 2002, Dacorum Borough Council ('Dacorum') granted Mr Sims and his now ex-wife an introductory tenancy of a 3-bedroom house in Kings Langley. After 12 months their tenancy became a secure tenancy, within the meaning of the Housing Act 1985, and the couple raised their 4 children there.
At about the end of 2009 their marriage broke down and, in March 2010, Mrs Sims left the property with their two youngest children. She sought accommodation from a neighbouring local authority. The authority would only grant her a tenancy, however, if she ended her tenancy in Kings Langley. So, in June 2010, having been advised by Dacorum of the options available to her, she served Dacorum with a valid notice to quit.
At common law, the notice brought the tenancy to an end the following month. In accordance with the terms of the tenancy agreement, Dacorum duly considered but declined Mr Sims' request to remain at the property. Accordingly, on 28 October 2010, it claimed for possession of the property in Watford County Court.
During the course of the proceedings, Dacorum twice reconsidered its decision to seek possession of the property, once in December 2010 and again on 22 June 2011, when Mr Sims provided it with further information about his circumstances. On both such occasions, however, it upheld its original decision.
Mr Sims defended the claim on numerous grounds but, in a judgment dated 16 December 2011, Deputy District Judge Wood made an outright possession order, having concluded that it was both lawful and proportionate so to do.
Using the 'leapfrog' procedure, Mr Sims then appealed to the Court of Appeal. His appeal was heard on 9 October 2012 and, in a judgment dated 24 January 2013, duly dismissed. The parties agreed - and indeed the Court held - that, in light of Monk, there was no alternative. In a trenchant judgment, however, it also refused Mr Sims permission to appeal to the Supreme Court.
After a period of some 12 months, Mr Sims obtained a direction from the Supreme Court that his further application for permission to appeal be listed before a 7-Justice Court on 23 to 25 June 2014, with his appeal to follow in the event that permission was granted.

The Decision

Lord Neuberger, the President of the Supreme Court, handed down the Court's unanimous judgment on 12 November 2014, granting permission for- but rejecting Mr Sims' further appeal. In its brief analysis of both the Article 8 and Article 1P ECHR arguments, the Court noted that:
1.the tenancy agreement, into which Mr and Mrs Sims had freely entered, expressly provided that either of them could end the tenancy by serving a notice to quit.

2.What followed was, therefore, simply a result of the very bargain that Mr Sims had struck.

3.In the absence of any credible argument that the terms concerning service a joint tenant's notice to quit were irrational, or that Dacorum had not fairly operated the terms providing for consideration of Mr Sims' request to remain in the property or to be accommodated elsewhere, the Article 1P argument necessarily failed.

4.Further, the terms of the tenancy agreement merely reflected a long-standing, common law principle concerning the effect of a notice to quit; and, rightly, the Deputy District Judge had found Dacorum's consideration of Mr Sims' position to have been reasonable.

5.As for Article 8, the Court accepted the submission of Ranjit Bhose QC, on behalf of Dacorum, that where the court is considering making an order for possession against a public sector residential tenant, he or she must have the opportunity of raising the argument that, in the light of Article 8, no order for possession should be made. Article 8 required no more. Here, that had been done at county court level and there was no related challenge on appeal.

Comment

The Court's judgment is likely to come as a relief for many social landlords, for whom the ability of one joint tenant to terminate his or her tenancy unilaterally is an important means of ensuring both fairness and flexibility in the allocation of an increasingly scarce commodity.
Ranjit Bhose QC, who represented Dacorum, leading Cornerstone Barristers' Andrew Lane and Dean Underwood, commented:
"It is important to note the emphasis placed by the Judgment of the Supreme Court on the interests of the landlord and departing joint tenant, and not just the remaining tenant, in considering Article 1P rights. Further, the attempt by those representing Mr Sims to seek Article 8 engagement at the point of the service of a notice to quit was also roundly rejected. This is good news for local housing authorities and housing associations in particular as they seek to address the increasing pressures on their housing stock. We are aware of a number of cases being put on hold awaiting this judgment and which can now proceed. "
Mark Brookes, Group Manager in Dacorum Borough Council's Legal Governance Department stated:
"We are especially happy that the Supreme Court confirmed that the Council had acted fairly and properly throughout in dealing with this matter. We do not take decisions to seek possession of property lightly and always seek to deal with an individual's concerns fairly whilst appreciating the wider pressures on a diminishing stock."
It remains to be seen whether tenants will mount further human rights challenges to the rule in Monk. Potentially, the emphasis placed by the Supreme Court on the particular terms of Mr Sims' tenancy agreement leaves that door open, albeit barely. Conceivably, tenants might even strike at the very heart of Monk: the House of Lords' preference of a contractual analysis, enabling termination by one tenant, over a property analysis, requiring all joint tenants to act in concert. For the time being, however, Monk survives as a helpful and Convention-compliant means of housing management; and the whisper of many a social landlord nationwide will surely be audible: "Long live the Conventional Monk!"

Click here to see the full judgement.

For further information please contact the clerks on clerks@cornerstonebarristers.com or call 020 7242 4986.