Newlon Housing Trust v Alsulaimen

A periodic tenancy ends by effluxion of time when the final period for which the tenant has consented to its continuation expires. Giving notice to quit signifies the withdrawal of that consent. The tenancy is not thereby disposed of, because no proprietary interest passes and, upon expiry, no property remains capable of restoration.

Accordingly, the retrospective power under section 37(2)(b) of the Matrimonial Causes Act 1973 to set aside a reviewable disposition cannot revive an expired periodic tenancy. An extant periodic tenancy is nevertheless “property” which may be transferred by a property adjustment order under section 24.

The respondents held a joint assured weekly tenancy of the appellant housing trust's flat. After leaving her husband, the wife gave notice to quit. The notice terminated the joint tenancy, but the husband remained in occupation.

In possession proceedings, the county court refused the husband an adjournment to seek a property adjustment order under section 24 of the Matrimonial Causes Act 1973. The Court of Appeal reversed that decision on the basis that he had a good prospect of obtaining a transfer. It was conceded there that the expired tenancy could be restored under section 37(2)(b).

The House permitted the trust to withdraw that concession. The central issue was whether the termination of a periodic tenancy following notice to quit constituted a disposition of property capable of being set aside.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hope of Craighead and Lord Saville of Newdigate agreed and allowed the appeal for his reasons.

2. Per Lord Hoffmann, a disposition within section 37 of the Matrimonial Causes Act 1973 requires property of which the disponor disposes. The court can set aside such a disposition because doing so restores that property to the disponor's estate. A surrender of an existing proprietary interest may therefore be a disposition, whether or not the interest passes to another person.

3. A periodic tenancy has a temporal dimension. Giving notice to quit signifies that the tenant will not consent to its continuation beyond the date on which it may next expire. At the end of the final agreed period, the tenancy terminates by effluxion of time. No property passes from the tenant to the landlord; the tenant's interest ceases to exist and the landlord's reversion falls into possession. The notice and subsequent expiry therefore did not constitute a disposition capable of being set aside under section 37(2)(b).

4. The difference between section 37(2)(a) and section 37(2)(b) reinforced that conclusion. The prospective power extends to a disposition, a transfer out of the jurisdiction or otherwise dealing with property. The retrospective power is confined to a reviewable disposition. The legislative history did not justify giving “disposition”, defined through traditional property concepts, the wider meaning urged by the husband. Lord Hoffmann expressly left open whether giving notice could be restrained as a “dealing” under section 37(2)(a).

5. An existing periodic tenancy is nevertheless “property” within section 24. Its capacity to be dealt with under separate matrimonial-homes legislation does not remove it from the general language of that section. The decisions in Thompson v Thompson [1976] Fam 25 and Hale v Hale [1975] 1 WLR 931 were rightly decided.

6. Because the tenancy had expired, it could not be revived and there was no property which could be transferred to the husband. He therefore had no answer to the trust's possession claim.

1. House of Lords: Allowed the housing trust's appeal unanimously. It held that the expired tenancy could not be revived under section 37(2)(b) of the Matrimonial Causes Act 1973, leaving the husband without a defence to possession.

2. Court of Appeal: Reversed the county court's refusal of an adjournment. It considered that the husband had a good prospect of obtaining a transfer of the tenancy and should have an opportunity to pursue his application. The citation is not stated in the judgment.

3. Edmonton County Court: Judge Tibber refused an adjournment because the husband's proposed application for a property adjustment order was made too late.