Family Law

Martin Iller, Solicitor and Deputy District Judge. On marriage or relationship breakdown joint tenants of rented accommodation might assume that they continue to enjoy security of tenure. However, this security is fragile once a spouse or partner leaves and seeks re-housing. If that individual gives notice to quit, even though this is without the knowledge or consent of the other, the tenancy will come to an end and that tenant will have no defence to a possession claim. Not only that, the notice will frequently have been encouraged by the landlord, who, faced with a tenant who seeks re-housing (often in circumstances where domestic violence is alleged) lacks the resources or the inclination to provide separate homes for each portion of the broken family. Although this would appear to go against everything that has been said about fair allocation of assets in White v White [1998] 2 FLR 310 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 the House of Lords, in following nineteenth Century decisions on property law, has left the 'ambushed joint tenant' without security of tenure or, it would seem, any means of redress.

Arguments that the ambushed joint tenant had a defence under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention) fell on deaf ears in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983 (Qazi). However, the House of Lords has recently been called upon to reconsider Qazi in Kay and others v Lambeth London Borough Council; Leeds City Council v Price and others [2006] UKHL 10 (Price). Although Price did not involve an ambushed joint tenant, the decision may have an impact on such cases in the future. The purpose of this article is to re-examine Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478, [1992] 1 All ER 1 and the cases that have followed it, and consider whether Price has created the opportunity to challenge these decisions by reference to domestic or European Convention principles. See October [2006] Fam Law 877 for the full article.