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'Darling, I'm leaving, you’d best pack your bags'

14/03/2013

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United Kingdom

What is the position when only one of two joint tenants gives notice to the landlord quitting a periodic joint tenancy?

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First appeared in Informer: Real Estate Newsletter - Spring 2013

Does the other joint tenant still living in the property have a right to remain there as sole tenant? The recent case of Sims v Dacorum Borough Council gives us the answer.

Mr and Mrs Sims's marriage broke down. They had lived together since 2002 as joint tenants of a 3 bedroom rented house in Hertfordshire. Their landlord was Dacorum Borough Council. After allegations of domestic abuse, Mrs Sims left the marital home to live in a women's refuge with their children. Mrs Sims also served a notice on the Council seeking to end the joint tenancy.  The Council accepted her notice, and sought possession of the house. Mr Sims, however, was still living there, and was having none of it.

The Council's position, following the leading case on the subject, was that the notice served by Mrs Sims (being a joint tenant) terminated the tenancy completely. She did not need her husband's consent, she was perfectly entitled to end the tenancy, and both parties had ceased to be tenants as a result of her alone having served notice.

Mr Sims argued that the law was incompatible with his human rights, namely that of respect for his home and possessions. He said that the law had the effect of evicting him from his home without his consent.  He had not wanted to move out, he was (presumably) paying the rent, he had not known that his estranged wife was going to serve the notice and he hadn't even received a copy of it.  He asserted that his wife's notice, instead of evicting him, had the effect of releasing her from the tenancy but leaving him with a sole tenancy in its place.  The County Court followed the previous authority and rejected Mr Sims’s protests. Mr Sims appealed.

The Court of Appeal rejected Mr Sims's arguments as well.  It was clear to the Court that there was nothing in the law, which disrespected Mr Sims's home or possessions. Mr Sims was not trying to protect his home by invoking his Convention Rights. What he was really trying to do was increase his rights and create (without the Council's consent) a right which he never had, and which the Council did not grant him (i.e. a sole tenancy). The only right Mr Sims had was the right to a joint interest with his estranged wife. That right could, by its very nature, be terminated unilaterally by either of them and had been terminated by Mrs Sims's notice.

It is clear from the decision that the Court of Appeal gave Mr Sims short shrift because he was actually trying to obtain 'extra' rights, which he did not have (notwithstanding the clever way he chose to express his position). If he had won, he would have got a sole tenancy of a three bedroom property to himself through the back door.  

Although the Court of Appeal refused permission for Mr Sims to appeal to the Supreme Court (stating it would be a waste of public money), he may still seek another roll of the dice and petition the Supreme Court himself. If he does, we'll be watching with interest. 

The case is an important reminder that one party to a joint periodic tenancy (n.b. but not necessarily other types of joint tenancy) may validly terminate that tenancy alone, notwithstanding the other tenant’s wishes.  The instant case involved a residential tenancy, but the rule applies equally to commercial tenancies as well. 

Tom Morton, Associate, Property Litigation Group at Field Fisher Waterhouse LLP

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