Published: Fri, 12 Oct 2018
Crawley BC v Ure  1 QB 13
Landlord and tenant; one joint tenant giving notice to quit without consulting the other
Mr and Mrs Ure were joint tenants of a council flat. Mrs Ure left and applied to the council for accommodation as a homeless person. They advised her to give notice to quit to terminate the tenancy. She did so without consulting Mr Ure. A possession order was served upon Mr Ure. Mr Ure appealed against the possession order.
Mr Ure argued that in failing to consult him, his wife had committed a breach of trust because a joint tenancy amounted to a trust for sale under s36 Law of Property Act 1925,with each tenant being both trustee and beneficiary. Under s26(3) Law of Property Act 1925 he claimed his wife was under a duty to consult him prior to giving notice. Further, he argued, the council had procured a breach of trust by advising Mrs Ure to give notice. The council argued a periodic tenancy is not a capital asset and cannot, therefore, be held on trust for sale. Even if it was a trust for sale, the trust only persists if both tenants wish it to continue. S26(3) only applies to positive acts, and the giving of notice to quit is not a positive act, but a proclamation that one tenant no longer wishes the tenancy to continue at the end of the term.
Notice to quit given by one joint tenant without the consent of the other was effective to terminate the tenancy. Although the tenancy did amount to a trust for sale, s26(3) did not apply to the giving of notice to quit because this was not, in substance, a positive act but merely an intimation that the tenant did not wish the tenancy to continue.
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