Newlon Housing Trust v Alsulaimen & Anor

Where one spouse’s notice to quit ends a joint periodic tenancy but the other has a realistic matrimonial claim to transfer the tenancy or set aside the notice, the possession judge must consider the intended application’s merits at least preliminarily. The judge must weigh the landlord’s actual prejudice against the injustice of eviction, recognising that later success may not restore the home. Payment of rent and assured future funding may make the landlord’s prejudice slight. Delay, or the absence of an issued application, does not necessarily justify refusal; an adjournment may be conditioned on prompt issue. A notice to quit may be a disposition under the Matrimonial Causes Act 1973, and intention to defeat financial relief need not be the sole or dominant intention.

A housing association granted the husband and wife a joint assured weekly tenancy. After the parties separated and divorced, the wife served a notice to quit, which determined the tenancy. The housing association obtained an order for possession and mesne profits in Edmonton County Court. The husband sought an adjournment so that he could apply under sections 37 and 24(1)(a) of the Matrimonial Causes Act 1973 to set aside the notice and seek transfer of the tenancy. The county court judge refused the adjournment, principally because the application was made late and the section 37 application had not yet been issued. The central issue was whether that refusal was unjust or plainly wrong.

Lord Justice Nourse delivered the leading judgment. Mr Justice Cazalet agreed with the result and added supplementary observations.

1. The appeal was allowed because the county court judge had erred in principle. He should have considered, at least preliminarily, the merits of the proposed application under sections 37 and 24(1)(a) of the Matrimonial Causes Act 1973. He also wrongly treated fairness as requiring an immediate possession order.
2. The notice to quit was effective at common law under Hammersmith and Fulham London Borough Council v. Monk [1992] 1 AC 478 and satisfied section 5(1) of the Protection from Eviction Act 1977. That did not resolve whether possession should be postponed. The court had to balance the landlord’s prejudice against the husband’s likely injustice. Once rent arrears had been paid and future rent was assured, the landlord’s prejudice was limited to uncertainty and delay. Eviction, by contrast, would remove the husband from his home before his claim could be determined.
3. The husband had good prospects under section 37. A notice to quit could constitute a disposition under section 37(6), since it operated as an assurance of the tenancy interests. The wife’s release from contractual liability was automatic and was not valuable consideration under section 37(4). The statutory presumption under section 37(5) was relevant, and under Kemmis v. Kemmis [1988] 1 WLR 1307 an intention to defeat a financial-relief claim need only form a substantial part of the spouse’s intentions.
4. There were also good prospects of an order transferring the tenancy to the husband under section 24(1)(a). The wife did not need the flat, the husband did, and clause 3(12) expressly permitted assignment pursuant to a section 24 order. The housing association could not rely on its policy against a sole male tenant in a two-bedroom property.
5. Lateness and the failure to issue the section 37 application were insufficient reasons for refusal. The adjournment could have been made conditional on issuing the application promptly. On the husband’s undertaking to issue applications under sections 37 and 24 within seven days, the possession order was set aside and the possession application was adjourned generally. The appeal was allowed with costs, subject to legal aid taxation.

Mr Justice Cazalet additionally observed that the broader provisions of the Schedule to the Matrimonial Homes Act 1983 might provide an alternative route where transfer under section 24 was unavailable because of assignment restrictions, statutory duties or uncertainty about whether a tenancy constituted property.

• Court of Appeal (Civil Division): In [1997] EWCA Civ 793, the appeal was allowed. The possession order was set aside and the possession application was adjourned generally on the husband’s undertaking to issue applications under sections 37 and 24 of the Matrimonial Causes Act 1973 within seven days.
• Edmonton County Court: His Honour Judge Tibber refused an adjournment and ordered possession, together with mesne profits.