Surrender or Succession? Angela Piears discusses the recent High Court decision in City of Westminster Council v Abdul Kazam and Armin Rahimi [2023] EWHC 825 (KB)

The High Court has found in favour of a local authority on an important question of tenancy surrender (and overturned the decision of a Circuit Judge, who had found there had been an earlier surrender of a joint tenancy, and that the Second Defendant could succeed to his deceased grandmother’s tenancy).

What is the case about?

The local authority granted a secure joint tenancy to husband (D1) and wife, Mrs Hussain, in 2005.  D1 moved out in March 2011 to live with his daughter, and in May 2011 made a homeless application.   

The local authority’s internal documentation dated 28 July 2011 recorded an amendment to the tenancy of ‘joint to sole’ and a handwritten note, signed by the housing officer and witnessed by the estate manager, stated ‘Please remove Mr Kazam from rent account’.

The wife paid the rent.

D1  was given a tenancy for another property in Westminster in 2012.

In 2017 the wife’s grandson (D2) was living in a refugee camp in Greece and she supported his visa application.  She attached a copy of the joint tenancy agreement and added that her husband had lived with her but now had his own apartment as he was a lot older and unable to get upstairs.

In September 2017 D2 came to live at the property.

The wife died in July 2020 and D2 applied for a discretionary succession, which the local authority refused.  A claim for possession was issued in 2021. D2 defended on the basis that the joint tenancy had been surrendered by operation of law in 2011 when D1 left, there had been a regrant of a sole secure tenancy to the wife, and the local authority was estopped from claiming D1 was a tenant of the property after 2011.

At trial,  the Circuit Judge found that D1 had surrendered the tenancy by unequivocally relinquishing possession, and the wife had unequivocally agreed by excluding D1 from the property. Therefore D2 was a successor.

What did the High Court decide?

Lane J considered detailed case law analysis, in particular from Morgan J in Sable v QFS Scaffolding, referring to Woodfall:

“the conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended; there must be either a relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy.”

All 4 grounds of appeal succeeded:

Grounds 1 and 2: There was both an error of law and a serious procedural irregularity in the judge’s finding that the wife had unequivocally agreed with D1’s surrender of the joint tenancy by excluding him from the property. A joint tenancy could only be ended by unequivocal conduct by the tenant who remained in the property. That is a high threshold, in order to ensure that a tenant’s interests are not damaged. There was no evidence that the wife had excluded D1 from the property, and exclusion had not been pleaded or argued by the parties.

Ground 3: The judge had exceeded his discretion by finding the wife had agreed the surrender by excluding D1 from the property. The conduct of D1 was equivocal, and the wife remained in possession.  The judge had wrongly distinguished the case from Ealing Family Housing Association Ltd v McKenzie, where a tenant left a flat due to domestic violence, and sought to end her sole tenancy, but the Court of Appeal found that leaving the flat was not an implied surrender.

Ground 4: The judge had erred in law by finding D1 had surrendered the joint tenancy by unequivocally relinquishing possession whilst the wife remained.   There was no positive finding that a new tenancy had arisen, and D1 had not done all he could to unequivocally give up possession: “he has not handed in the keys or sought to have Mrs Hussain’s continued possession brought to an end”.  There was no surrender as a matter of law, based on the principles in  the decided cases.

Comment

• This is a considered judgment on the question of whether there has been a surrender and regrant of a tenancy: it provides an invaluable summary of the case law, and its practical application. 
• The Court placed significant weight upon the requirement of both parties to a joint tenancy to act in an unequivocal way, to cause the joint tenancy to be surrendered: in other words, the conduct of both parties must be such, that the only way to interpret it is as a surrender of the joint tenancy.  That is a high bar.
• The judgment clarifies that it is possible for a joint tenancy to persist, long after one of the tenants has moved out and found accommodation elsewhere.
• The Court also notes the warning of Lord Sumption in Solihull v Hickin, where he stressed “the importance of abiding by legal principles when the sympathies of the court might be with a particular party who stands to lose, if those principles are followed”.

3rd May 2023

Angela Piears

Call 2001