Wilson v London Borough of Harrow

A unilateral notice to quit served by one joint tenant validly determines a periodic joint tenancy unless the tenancy terms provide otherwise. The remaining occupier’s contractual and proprietary right to possession ends, and the landlord becomes entitled to possession. In the social-housing context, that rule was compatible with Article 8. A county court need not conduct a separate proportionality assessment where domestic law gives the landlord an unqualified right to possession. A first-instance judge must follow binding authority unless displaced by a higher court. A notice to quit cannot be recharacterised as an assignment or release.

The applicant, a secure tenant of a two-bedroom council flat, became the sole occupier after her husband left and served a notice to quit. The notice ended the joint tenancy. The London Borough of Harrow refused her application for a sole tenancy and obtained a possession order in the Willesden County Court.

The applicant sought permission to appeal. The principal issue was whether the rule in LB of Hammersmith and Fulham v Monk [1992] 1 AC 478 was compatible with Article 8 of the ECHR. A subsidiary issue concerned whether the authority had acted unfairly or abused its power by failing to advise the departing joint tenant about assignment.

1. Outcome. Permission to appeal was granted on the principal issue, but the appeal was dismissed. Permission to amend the grounds on the subsidiary issue was refused.
2. The rule in LB of Hammersmith and Fulham v Monk [1992] 1 AC 478 applies to a periodic joint tenancy unless the tenancy terms provide otherwise. A notice to quit given by one joint tenant determines the tenancy, ends the other joint tenant’s right to occupy as tenant, and gives the landlord an unqualified right to possession.
3. The rule is compatible with Article 8. Although the flat was the applicant’s home and possession interfered with her occupation, Harrow LBC v Qazi [2004] 1 AC 983 established that contractual and proprietary rights to possession could not be defeated by an Article 8 defence where domestic law gave the landlord an immediate right to possession. The reasoning in Kay v Lambeth BC and Leeds City Council v Price & Others [2006] 2 AC 465, and in Doherty v Birmingham CC [2009] 1 AC 367, had not displaced that position.
4. A first-instance court must follow binding precedent even where a Convention argument may disclose a possible inconsistency with Strasbourg authority. It may express its views and give permission to appeal.
5. A notice to quit cannot be treated as an assignment or release. Such a recharacterisation would alter established legal concepts and could conflict with the assignment restrictions in section 91 of the Housing Act 1985. The statutory questions concerning assignment were not finally determined.
6. The authority had not acted unfairly or oppressively. Its officer had warned the departing tenant to obtain legal advice and had made sustained efforts to assist the applicant. The proposed subsidiary ground had no realistic prospect of success.

Willesden County Court: His Honour Judge Million made an order for possession on 7 July 2009 and gave judgment for rent arrears.

High Court (Queen’s Bench Division): Permission to appeal was granted on the principal issue, the appeal was dismissed, and permission to amend the grounds on the subsidiary issue was refused.