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Landlord and Tenant: Is the rule in Monk compatible with the ECHR?

Hypothetical husband and wife, Jack and Jill, are joint tenants under a secure periodic tenancy granted by the local authority, Crown Borough Council.

Jack and Jill’s relationship ends. Jill unilaterally serves notice on Crown terminating the tenancy. Crown refuses to transfer the tenancy into Jack’s sole name and issue possession proceedings. The rule in Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478 states that a joint residential tenancy is terminated automatically if one joint tenant unilaterally serves a notice to quit on the landlord. Jack asserts that the rule is incompatible with Article 8 of the European Convention on Human Rights 1950 (ECHR) and Article 1 of the First Protocol to the ECHR. Is there any merit in Jack’s appeal? 

The Court of Appeal has answered in the negative in the case of Sims v Dacorum Borough Council [2013] EWCA Civ 12. The Court held: 

  1. The ECHR challenge is centred on the compatibility of the rule in Monk with Article 8 and Article 1 of the First Protocol. It is not about the engagement of those articles by the possession proceedings. 
  2. The aim of such an appeal is to enhance property rights conferred by contract by securing the incumbent tenant a sole tenancy of the council’s property without its consent. 
  3. Article 8 is not engaged because the rule in Monk lays down a substantive rule in property and contract law under which one joint tenant has the right to serve notice unilaterally terminating a periodic tenancy. Such a right is enjoyed severally by each tenant. There is nothing in the legal rule per se or its exercise that interferes with that Article 8 right. 
  4. Article 1 of the First Protocol is not engaged. The rule in Monk is a proprietary and contractual legal right inherent in the joint tenancy of the property granted. Service of a notice is merely the exercise of that right by one tenant. There is no interference with the possession of the remaining tenant. Further, that relevant possession is an interest in a joint tenancy that is, by its very nature, terminable unilaterally. The council has no involvement in the termination of that tenancy and its possession proceedings cannot be described as a breach of Article 1 of the First Protocol.

Elizabeth Dwomoh / 1st Feb 2013


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