AS TO THE ADMISSIBILITY OF
Application No. 28027/95
by James URE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 April 1995 by
James URE against the United Kingdom and registered on 25 July 1995
under file No. 28027/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom national born in 1932 and
residing in Crawley, West Sussex. Before the Commission he is
represented by J. B. O. Hinchliffe, a solicitor practising in East
Grinstead, West Sussex, and by M. Berkin, a barrister practising in
London.
The facts of the case as submitted by the applicant may be
summarised as follows.
In 1986 the applicant and his wife became secure joint tenants
of a flat belonging to the Crawley Council. In August 1991 the
applicant and his wife started divorce proceedings. The applicant's
wife with their child left the flat. She applied to the Crawley
Council for assistance or accommodation as a homeless person. Since
her interest in the flat disqualified her from being homeless, the
Council advised her that she could terminate the tenancy by serving on
them a notice of her intention to quit. On 6 April 1992 she did so,
on a form provided by the Council, without informing the applicant.
Following the serving of the notice to quit, the Council applied
to the Horsham County Court and sought the possession of the flat as
under the relevant law the notice had effectively terminated the joint
tenancy. The applicant refused to leave. He resisted the application
asserting inter alia that because the Crawley Council had been aware
that his wife had left and because they had accepted payments in
respect of rent from the applicant only, he had become the sole tenant.
He also submitted that the Council had acted in bad faith as they had
assisted and even encouraged his wife to terminate the joint tenancy.
On 8 February 1993 Judge Hammerton, sitting at the Brighton
County Court, granted Crawley Council's application for possession.
He found, inter alia, that
"there is ... nothing in itself that is either improper,
unlawful or unfair, in a Local Authority assisting a tenant (one
of joint tenants) in terminating a tenancy so that that person
who might be entitled to other accommodation is able to obtain
it".
The Judge further noted that replacement housing accommodation
had been obtained for the applicant and that the Council had acted
responsibly and properly.
On 8 February 1995 the Court of Appeal dismissed the applicant's
ensuing appeal and refused his application for leave to appeal to the
House of Lords. The Court dismissed the applicant's argument that
Crawley Council, having allegedly instigated and assisted his wife to
serve a notice to quit, was not entitled to rely on their own wrong and
seek possession of the flat. In this respect the judgment referred to
a quotation from a judgment in a similar case, where it had been said:
"Some argument was advanced to us on the consequences for
couples living together in local authority housing ... We were
told that when one partner, frequently the wife and often with
young children, chooses or is compelled to leave a house or flat
provided by the local authority, it is the practice of at least
some local authorities to require the partner who has left the
accommodation to give notice terminating the jointly held
tenancy as a prelude to rehousing her. Thus, it was said, the
man sometimes finds himself, without any fault on his
part,losing his home as well as his wife and his children. He
may well not have a priority need for rehousing. Against this
it was argued that, with limited housing facilities available to
local authorities, it is undesirable that the man should
continue indefinitely to occupy accommodation in excess of his
reasonable requirements. Arguments such as these can have no
place in the present case. The point at issue applies to all
periodic tenancies, to joint lessors as well as joint lessees,
and to all types of property: agricultural and business property
as much as residential property. Considerations peculiar to
tenants of local authority housing really cannot carry weight in
the circumstances."
The applicant was subsequently refused legal aid to apply to the
House of Lords for leave to appeal.
On 21 February 1996 the applicant was informed by the bailiff
that he would be evicted from his flat on 14 March 1996. The applicant
has not substantiated any further development.
COMPLAINTS
The applicant submits that the legislation in the United Kingdom
which provides for the termination of a joint tenancy by a unilateral
notice on the part of one of the joint tenants operates in a manner
incompatible with the rights of the other co-tenant. Thus, it has
become the practice of the local housing authorities to require a co-
tenant who seeks rehousing upon breakdown of a marriage or of a
relationship to serve a notice to quit thus terminating the joint
tenancy. The applicant claims that this policy aimed at evading the
guarantees of a secure tenancy, which could be terminated by the
landlord on limited grounds only. In his case the local authority was
responsible for the loss of his home, his eviction being imminent.
The applicant also submits that under the Matrimonial Homes Act
1983 he had a right not to be evicted from the matrimonial home without
leave of the court. Also, he was entitled, on divorce, to apply for
a transfer of property order. Against this background the applicant
complains that the Crawley Council in fact intermeddled in the
matrimonial rights between him and his wife.
The applicant invokes Article 8, Article 1 of Protocol No. 1 and
Article 5 of Protocol No. 7 to the Convention.
THE LAW
1. The applicant complains that the legislation and the practice
concerning the termination of joint tenancies, the manner in which
Crawley Council acted in his case, as well as the judicial decisions
which followed, breached his rights to respect for his home and to
peaceful enjoyment of his possessions.
The Commission has examined the applicant's complaints under
Article 8 (Art. 8) of the Convention which, insofar as relevant,
provides as follows.
"1. Everyone has the right to respect for his ... home ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of ... the economic well-being of the country, ... for the
protection of health or morals, or for the protection of the
rights and freedoms of others." The Commission recalls the
Convention organs' case-law according to which an interference
by a public authority with the rights under Article 8 (Art. 8)
of the Convention entails a violation of this provision unless
it was "in accordance with the law", had an aim or aims that is
or are legitimate under Article 8 para. 2 (Art. 8-2) of the
Convention and was "necessary in a democratic society" for the
aforesaid aim or aims. Necessity in a democratic society implies
that the interference shall correspond to a pressing social need
and that it shall be proportionate to the aim pursued. Further,
in determining whether an interference is necessary the
Commission will take into account that a margin of appreciation
is left to the Contracting States, which are in principle in a
better position to make an initial assessment of the necessity
of a given interference. It is not the Commission's task to take
the place of the competent national courts and make a fresh
examination of all the facts and evidence in the case. The
Commission's task is to examine whether the reasons adduced to
justify the interference at issue are "relevant and sufficient"
(Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988,
Series A no. 130, p. 32, paras. 59, 67, 68; cf. also no.
11949/86, Dec. 1.12.86, D.R. 51 p. 195).
In the present case the Commission notes that the applicant and
his wife were joint tenants and that, therefore, the right to use the
apartment was to be exercised by them jointly. The applicant
apparently was not entitled, under the tenancy agreement, to use the
flat as a sole tenant. It was therefore clear at the outset that in
case one of the joint tenants decided to leave, the other could not
claim a right to become the sole tenant. This was the legal situation
as regards joint tenancies on all types of property, and not only on
residential property.
Furthermore, it does not appear that the manner in which the
authorities balanced the various interests involved, such as the
interest of the leaving co-tenant, of those in need of accommodation,
and of the applicant, was arbitrary or unreasonable. Thus, the
applicant's housing need apparently changed as he was not living with
his wife and child any more. Moreover, replacement housing
accommodation had been obtained for the applicant.
Therefore, the Commission finds that the alleged interference
with the applicant's rights under Article 8 (Art. 8) of the Convention
was justified under the second paragraph of this provision.
It follows that this part of the application is manifestly ill-
founded and has to be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
2. Insofar as the applicant invokes Article 1 of Protocol No. 1
(P1-1) to the Convention, even assuming that his contractual right of
a co-tenant may be considered as a "possession" within the meaning of
this provision and that there has been a State interference with the
applicant's right to peaceful enjoyment of his possessions, the
Commission does not find that the facts complained of disclose any
appearance of a violation of Article 1 of Protocol No. 1 (P1-1) to the
Convention. In this respect the Commission refers to its analysis of
the applicant's complaints under Article 8 (Art. 8) of the Convention.
It follows that this complaint is also manifestly ill-founded and
has to be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also raises a complaint under Article 5 of Protocol
No. 7 (P7-5) to the Convention.
The Commission finds that this complaint falls outside its
competence ratione personae, Protocol No. 7 not having been ratified
by the United Kingdom.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy