Harrow London Borough Council v Johnstone

One joint tenant may terminate a contractual periodic tenancy by serving an appropriate notice to quit without the concurrence of the other joint tenant. Such notice signifies an unwillingness to assent to renewal; it is not a positive disposition of the joint tenancy.

An injunction restraining a spouse from excluding the other from their home regulates the exercise of existing occupational rights unless its terms and foundation also preserve the tenancy itself. A housing authority does not abuse the court’s process merely by acting on a valid notice where no proprietary proceedings exist and it has no intention of frustrating the administration of justice.

A husband and wife held a council house under a joint secure periodic tenancy. After their separation, the husband obtained an ex parte domestic violence injunction restraining the wife from excluding or attempting to exclude him from the house. The wife subsequently served a notice to quit so that the council could rehouse her.

The county court dismissed the council’s possession claim, holding that the wife had breached the injunction and that the council’s conduct was an abuse of process. A majority of the Court of Appeal upheld that result. The central issues before the House were whether the notice terminated the joint tenancy, whether it breached the injunction, and whether the council’s pursuit of possession interfered with the administration of justice.

1. Appeal allowed unanimously. Lord Mustill delivered the leading speech. Lord Browne-Wilkinson, Lord Jauncey of Tullichettle and Lord Clyde agreed with his reasons. Lord Hoffmann agreed that the appeal should be allowed and added observations on issues which did not arise for decision.

2. Per Lord Mustill, applying Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478, any one joint tenant may terminate a contractual periodic tenancy by appropriate notice. Renewal depends upon the continuing assent of every joint party. Although notice is positive in form, its substance is the tenant’s refusal to assent to another period. Clause 19 and the Housing Act 1985 did not alter that rule. The wife’s notice therefore ended the tenancy and the husband’s security of tenure.

3. Per Lord Mustill, the injunction did not require the wife to preserve the joint tenancy. Its statutory and factual context showed that it was a domestic violence order protecting the husband’s exercise of existing occupational rights. It was not a mandatory proprietary injunction compelling the wife to maintain those rights until future matrimonial proceedings. Serving the notice consequently did not breach the order.

4. Per Lord Mustill, Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 did not govern the case. No proceedings seeking proprietary relief existed when the notice was given. The council could not intend to frustrate proceedings which had not begun. Its implementation of a housing policy against granting two council tenancies to one person did not amount to contempt or an intentional subversion of the judicial process.

5. Lord Hoffmann observed, obiter, that even an injunction expressly restraining notice would not itself invalidate a notice as against an unaware, non-party landlord. He also doubted whether termination of a periodic tenancy by notice constituted a “disposition” capable of being set aside under section 37(2)(b) of the Matrimonial Causes Act 1973. Lord Browne-Wilkinson expressed no view on those points, and Lord Mustill abstained from deciding them.

6. The council had been entitled to possession when the county court heard the claim. The House ordered possession.

1. House of Lords: Allowed the council’s appeal unanimously, held that the joint tenancy had ended, and ordered possession.

2. Court of Appeal: By a majority, upheld the dismissal of the possession claim. Russell LJ and Sir Roger Parker concluded by different routes that the council could not obtain possession; Hobhouse LJ dissented.

3. Willesden County Court: Judge Hunter dismissed the council’s possession claim, treating the notice and the council’s conduct as involving breach of the injunction and abuse of process.