Published: Wed, 07 Mar 2018
Notting Hill Housing Trust v Brackley  EWCA Civ 601
The ending of a tenancy by a joint tenant without the consent of the other tenant under TOLATA.
A married couple held a periodic tenancy on a property as joint tenants, which could be terminated with the provision of four months notice. Subsequently, the wife vacated the property and, without her husband’s knowledge, gave notice of a desire to terminate the tenancy to the property’s landlord. The husband submitted this notice ought be invalidated as he had not consented to it, whilst the landlord sought to rely on the notice to quit so as to regain possession. The husband submitted that the joint tenancy amounted to a trust for land and thus that his wife had breached this trust when she provided the notice (and thus exercised a function) without consulting him as a beneficiary of the trust, in violation of the Trusts of Land Appointment of Trustees Act 1996, s. 11.
Whether the ending of a joint tenancy by one of the tenants without consulting the other tenant amounts to the exercise of a function, prohibited under s. 11 of TOLATA.
The Court of Appeal found that one of two joint tenants may give notice to end the joint tenancy without obtaining the permission of the co-tenant first, as this action did not amount to the exercise of a function under TOLATA, which would require permission. Rather, the notice amounted to an indication of a desire to cease involvement in the tenancy, and to find otherwise would represent an extension of the term ‘function’ in property law. Moreover, the Court viewed that this was the correct application of existing laws and were it unfair, then it fell to Parliament to alter the law.
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