Notting Hill Housing Trust v Brackley & Anor

A notice to quit served by one joint tenant of a periodic tenancy expresses that tenant’s unwillingness to consent to the tenancy continuing beyond the current period. It is effective because continuation requires the consent of every joint tenant.

Serving such a notice is the exercise of the tenant’s personal contractual right. It is not the exercise of a trustee’s function relating to trust land. The duty to consult beneficiaries under section 11 of the Trusts of Land and Appointment of Trustees Act 1996 therefore does not arise. The 1996 Act did not alter the established analysis of periodic joint tenancies.

A housing trust granted a husband and wife a joint weekly tenancy. After leaving the property, the wife served a notice to quit without consulting her husband. The landlord relied on that notice in possession proceedings.

The West London County Court determined preliminary issues in the landlord’s favour and ordered possession. The husband appealed. He argued that service of the notice was a trustee function engaging section 11 of the Trusts of Land and Appointment of Trustees Act 1996, that the failure to consult was a breach of trust, and that the landlord could not rely on a notice which it had procured in breach of trust.

The central issue was whether serving the notice constituted the exercise of a trustee function to which the statutory consultation duty applied.

1. Appeal dismissed unanimously. Peter Gibson LJ delivered the leading judgment. Buxton LJ and Jonathan Parker LJ agreed. A notice to quit served by one joint tenant of a periodic tenancy was effective to determine the tenancy, and section 11 of the Trusts of Land and Appointment of Trustees Act 1996 did not require consultation before its service.

2. The continuation of a periodic joint tenancy from one period to the next requires the consent of all joint tenants. Although giving notice is positive in form, its substance is an indication that the tenant serving it withholds the assent required for continuation. The trust interest extends no further than the end of the period for which it remains possible to give notice.

3. The word “function” in section 11 is wide and can encompass a trustee’s powers and duties. Nevertheless, the service of this notice was not the exercise of a power or duty by the joint tenant as trustee. It was the exercise of the tenant’s personal right to withhold consent to the continuation of the tenancy. Consequently, it was not a function relating to land subject to the trust and no duty to consult arose.

4. The replacement of trusts for sale by trusts of land under the 1996 Act did not alter the contractual analysis of periodic tenancies established in Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478. Nor did it undermine the reasoning in Crawley Borough Council v Ure [1996] QB 13 that service of a notice by one joint tenant was not the exercise of a trustee power requiring consultation.

5. Because the appeal failed on the first question, the court did not determine whether the absence of consultation would otherwise have constituted a breach of trust or whether a landlord could obtain possession by relying on a notice it had procured in breach of trust.

6. The stay was discharged. Permission to appeal to the House of Lords was refused. Possession was not to be enforced before 22 May 2001.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The stay was discharged, and permission to appeal to the House of Lords was refused.
2. West London County Court: His Honour Judge Cowell determined the preliminary legal issues in the landlord’s favour and ordered possession against the husband.