The tenant had been joint tenant with his wife of a house. On the breakdown of the marriage, she left and gave notice to quit to the council. The council sought and obtained an order for possession, against which the husband now sought leave to appeal against a refusal of an adjournment so that he could pursue an application for a transfer of the tenancy into his name under the 1973 Act.
Held: The judge had made too much of the husband’s delay, and failure to make the proposed application: ‘ the summons had only been served on the husband on 9th April, it was the first hearing and the plaintiff’s position in regard to rent was assured. As to the second, the mere fact that a section 37 application had not been issued was of minimal significance. The husband had already been granted legal aid for that application. The correct way of dealing with the point would have been to make it a condition of the adjournment that the application should be issued within a short period.’
‘The notice to quit was a disposition. Section 37(6) provides that, with the exception of any provision contained in a will or codicil, that expression ‘includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise’. Since the notice to quit operated to assign to the plaintiff the interest not only of the wife but also of the husband under the tenancy, it was clearly an assurance of property within that provision. Its effect was no different from that of a surrender of the tenancy by both husband and wife.’
Judges:
Nourse LJ, Cazalet J
Citations:
Times 24-Jan-1997, [1997] EWCA Civ 793
Links:
Statutes:
Matrimonial Causes Act 1973 37, Matrimonial Homes Act 1983 1 2
Jurisdiction:
England and Wales
Citing:
Cited – Kemmis v Kemmis (Welland and Others Intervening) CA 1988
H had mortgaged the matrimonial home to release funds to support his lifestyle. The bank knew about the family circumstances and the mortgage was set aside at first instance. W applied to have the charge set aside.
Held: The application . .
Cited by:
Appeal from – Newlon Housing Trust v Alsulaimen and Another HL 29-Jul-1998
A tenancy which had been terminated by a notice given by one of the joint tenants had expired. It did not come to an end by any deed, and so was not capable of being set aside by a family court in the course of divorce proceedings. The possession . .
Cited – London Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
Lists of cited by and citing cases may be incomplete.
Housing, Family
Updated: 04 November 2022; Ref: scu.141189