Mathew McDermott discusses the recent Court of Appeal decision in Rahimi v Westminster: When is a “surrender” not a “surrender”?

In Rahimi v City of Westminster [2024] EWCA Civ 73, the Court of Appeal has heard an interesting second appeal, about a thorny but not uncommon issue that often arises because of the way internal local authority documents record a so-called ‘departing joint tenant’.

Here, a family member (Mr R) claimed he had the right to succeed to a secure tenancy upon his grandmother’s death in circumstances where the landlord, Westminster, was asserting that the material tenancy had been joint (so no right of succession due to right of survivorship).

Mr R, in contrast, claimed that his grandmother’s tenancy had been sole because of an earlier surrender of the joint tenancy and a regranting of a sole tenancy in her favour, meaning he had a right to succeed. 

What is the case about?

In 2005 Westminster had granted a Mrs H and Mr K a joint tenancy over a flat. By 2011, Mr K had moved out & had approached Westminster as homeless saying that he had been asked (by Mrs H) to leave their flat.  Mr K was rehoused in Westminster by a housing trust, but as highlighted by both Lewison LJ and Newey LJ this rehousing did not take place until the following year (2012). 

There was certain internal Westminster documentation relating to Mr K departing and Mrs H remaining. One such document, signed by two officers at Westminster, had a box ticked saying ‘joint to sole’, along with a comment that Mr K be removed from the rent account. Westminster’s evidence confirmed that Mr K had been removed from the rent account in about July 2011. Thereafter, its software recorded Mrs H as the sole tenant – but internally the tenancy start date remained 2005. 

There was no evidence that either Mrs H or Mr K was aware of the contents of Westminster’s internal records. 

From around July 2011 it was agreed that Mrs H solely paid the rent and no demand for the same was made of Mr K. 

The Appellant, Mr R, was the grandson of Mrs H and lived at the flat when he arrived in the UK in 2017 and continued to do so until Mrs H’s death in 2020. Westminster’s view was that upon the death of Mrs H the tenancy vested in Mr K by right of survivorship. He was not occupying the flat as his only or principal home and, therefore, there existed merely a contractual tenancy that was liable to determination by a notice to quit on Mr K – which they gave. 

Mr R disagreed. His position was that the joint tenancy held by Mrs H and Mr K had been surrendered by conduct and the circumstances were such that there could be inferred the grant of a new sole secure tenancy to his grandmother, Mrs H, who remained in the flat paying the rent.

The trial judge had found that there had been an implied surrender (of the joint tenancy) and a regrant (of a new sole tenancy) in favour of Mrs H. 

Upon appeal to the High Court, Lane J overturned that decision. 

Mr R brought this second appeal to the Court of Appeal. 

What did the Court decide?

All three members of the Court of Appeal agreed that the key issue was whether or not Westminster had granted a new sole tenancy to Mrs H, with the consent of the ‘outgoing tenant’ (Mr K).

Putting it slightly differently: looking at all the circumstances, was there a proper basis upon which it could be said that Westminster had granted a new sole tenancy to Mrs H with Mr K’s consent?

Whilst much came down to the facts, by majority Mr R’s appeal was dismissed: the tenancy had remained joint, meaning upon the death of Mrs H the tenancy vested in Mr K by right of survivorship (and was then determined by notice to quit). Lewison and Newey LJJ did not believe that it could be inferred from the circumstances that Westminster had granted a new sole tenancy to Mrs H. 

Mrs H had remained when Mr K departed, and she had continued to pay the rent – with no demands to pay the rent being made of Mr K once he had departed – but Mrs H was liable to pay the rent by virtue of the joint tenancy so that was not inconsistent with its existence. Indeed, where joint tenants are severally liable to pay the rent, the landlord may choose whether to demand rent from one of them or from both of them. 

Nor did their Lordships support the trial judge’s finding that Mr K had relinquished legal possession (occupation being different to possession). Mr K may have been asked to leave, and he may have complied with that request, but that did not mean he had given up his legal right to possession.

As for the internal documentation, this would not have come to the attention of either Mrs H or Mr K. Newey LJ noted that the tick box change from ‘joint to sole’ was apt to refer to a perceived change in parties without any agreement to that effect having been concluded.

Macur LJ agreed with the exposition of the law and the reasoning that the principal issue was whether Westminster had granted a sole tenancy to Mrs H with the agreement of Mr K, but her Ladyship would have allowed the appeal – remitting the matter to the County Court for a rehearing.

She disagreed that there was no proper basis upon which a trial judge could have inferred that Westminster did grant a new sole tenancy to Mrs H. Whilst it was not inevitable for a trial judge to have found such a tenancy to have been granted, it was possible – but the reasoning at first instance was not clear enough, therefore her Ladyship would have remitted the matter for a rehearing. 

Although the internal documentation could not estop Westminster from denying the grant of a tenancy, in circumstances where Mrs H and Mr K were not aware of it, her Ladyship considered it could be strong inferential evidence of the grant of a new tenancy when seen in context of the cumulative circumstances of the case.

Comment

Unsurprisingly, the particular and varied facts of the case were crucial to the outcome of the appeal, but in short the majority (Lewison LJ and Newey LJ) dismissed the appeal as they did not believe that the circumstances were such as to infer a new, fresh tenancy had been granted to Mrs H as the ‘remaining tenant’ (ultimately meaning that there could be no succession).

Stepping back, a ’remaining tenant’ staying and paying the rent when the other departs is not uncommon, nor is this sort of internal documentary trail that permits, at the same time, one party to claim that a new tenancy has been granted and the other to deny it. This is particularly so with tenancies that have subsisted for many years.

It may be going too far to say that, in this case, clearer internal documentation would have prevented the matter getting to a second appeal before the Court of Appeal. The factor that appears to have been most important was (a perceived) absence of communication or interaction between Westminster and Mrs H, that was inconsistent with the continuation of the joint tenancy.

Nevertheless, although the internal documents may not have been the sole cause of confusion, they certainly missed the opportunity to provide clarity. 

7th Feb 2024

Mathew McDermott

Call 2008