Sims v Dacorum Borough Council [2014] UKSC 63

Mrs Sims served a notice to quit on the joint secure tenancy she held with her estranged husband. The Supreme Court upheld the common law rule in Monk that one joint tenant can determine a periodic tenancy, rejecting Mr Sims's Convention rights challenge.

Facts

In March 2002, Dacorum Borough Council granted Mr and Mrs Sims a joint weekly tenancy of a three-bedroom house in Hertfordshire, which became a joint secure tenancy under the Housing Act 1985. The tenancy agreement contained clause 100, providing that where one joint tenant wished to terminate their interest they must terminate the full tenancy, and clause 101, providing that Dacorum would then decide whether any remaining joint tenant could stay or be offered alternative accommodation.

The marriage broke down in 2009, and following alleged domestic violence, Mrs Sims left the house in March 2010 with two of the four children. In order to obtain alternative housing from another authority, she served a notice to quit on Dacorum on 25 June 2010. Mr Sims, who remained in the property, asked to have the tenancy transferred into his sole name. Dacorum refused after internal reviews, and issued possession proceedings.

The Deputy District Judge made an order for possession, finding that Mr Sims had committed domestic violence, that Mrs Sims served the notice voluntarily and understood its consequences, that Dacorum’s decision-making process was compliant with article 8, and that the possession order was lawful and proportionate. The Court of Appeal dismissed his appeal.

Issues

The appellant invited the Supreme Court to revisit Hammersmith and Fulham LBC v Monk [1992] AC 478, which held that at common law one of two joint periodic tenants may determine the tenancy by notice to quit without the consent of the other. The specific issues were:

• Whether the effect of the rule in Monk, as it operated in this case, infringed Mr Sims’s rights under Article 1 of the First Protocol (A1P1) to the ECHR to peaceful enjoyment of possessions.
• Whether it infringed his rights under Article 8 to respect for his home.

Arguments

Appellant (Mr Sims)

Mr Arden QC argued that the decision in Monk should be reconsidered in light of the Human Rights Act 1998. He submitted that Mrs Sims’s service of the notice to quit was itself an infringement of Mr Sims’s article 8 rights because it put in jeopardy his right to remain in his home, and that his A1P1 rights had been infringed by loss of his interest in the tenancy.

Respondent (Dacorum) and Interested Party (Secretary of State)

Dacorum submitted that the possession order was lawful and proportionate, and that Buckland v United Kingdom merely required an opportunity to raise proportionality. The Secretary of State submitted that the loss of Mr Sims’s property right was the result of a bargain he had himself made.

Judgment

A1P1

Lord Neuberger (with whom the other Justices agreed) held that Mr Sims had acquired the tenancy on terms which expressly provided (clause 100) that it would be lost if a notice to quit was served by the other joint tenant, and (clause 101) that Dacorum would then decide whether he could remain. The property was lost in circumstances specifically provided for in the agreement that created it, making the A1P1 claim very hard to sustain. Reference was made to Di Palma v United Kingdom (1988) 10 EHRR CD149.

Clause 100 was not irrational or unreasonable: where one of two joint periodic tenants serves a notice to quit, some party’s interest must suffer, and the outcome in Monk avoids either forcing a tenant to remain against her will or landing the landlord with a single tenant occupying family accommodation. The Deputy District Judge’s assessment of Dacorum’s operation of clause 101 took into account all relevant factors, including Mr Sims’s ten years of residence, Mrs Sims’s voluntary service of the notice, Mr Sims’s responsibility for her departure through violence, the absence of relevant medical vulnerability, Dacorum’s right to reallocate scarce social housing, and the procedural fairness of the review. Her conclusion was the only appropriate one available.

Article 8

Mr Sims was entitled, following Manchester City Council v Pinnock [2010] UKSC 45 and Hounslow LBC v Powell [2011] UKSC 8, to raise the proportionality of Dacorum’s possession claim. However, the Deputy District Judge had properly considered this and correctly concluded that the possession order was lawful and proportionate.

The argument that the service of the notice itself infringed article 8 was rejected: the mere fact that the notice put Mr Sims’s occupation at risk did not amount to infringement of respect for his home. Mrs Sims had the right to serve the notice, and its consequences were specifically covered by the terms of the tenancy agreement he had accepted. Full respect for Mr Sims’s article 8 rights was accorded by: (i) determination in accordance with the contractual terms he had agreed; (ii) the benefit of clause 101; (iii) protection from eviction without a court order under the Protection from Eviction Act 1977; (iv) the requirement that the court be satisfied of the domestic law entitlement to evict; and (v) his right to raise a proportionality defence per Pinnock and Powell. Buckland v United Kingdom (2013) 56 EHRR 16 did not assist him; it merely required an opportunity to raise the article 8 argument, which he had.

Implications

The decision confirms the continued authority of Hammersmith and Fulham LBC v Monk after the Human Rights Act 1998. One of two joint periodic tenants may still validly determine the tenancy by unilateral notice to quit, and this rule does not, in itself, offend either A1P1 or article 8 of the Convention, at least where the tenancy agreement expressly provides for such termination and its consequences.

The judgment emphasises that where a tenant acquires property rights on terms which expressly contemplate their loss in specified circumstances, an A1P1 challenge to the operation of those very terms will be very difficult. It also reinforces that article 8 protection for a public sector residential occupier is delivered principally through the availability of the proportionality defence at the possession stage, as established in Pinnock and Powell, rather than by reshaping the underlying property law rules on determination of tenancies.

The decision is significant for local housing authorities, social landlords, and joint tenants of secure tenancies, particularly in the context of relationship breakdown and domestic violence, where one party may seek to terminate a joint tenancy to secure rehousing. It confirms that competing hardships between joint tenants and landlords are properly balanced through the discretionary proportionality review, not through modification of the common law rule.

Verdict: Appeal dismissed.

Source: Sims v Dacorum Borough Council [2014] UKSC 63