Surrender by operation of law of joint tenancies

Nicholas Grundy KC and Daniel Crehan consider a Court of Appeal ruling on whether a council tenant was entitled to succeed to a secure tenancy on the death of his grandmother.

The issue in Rahimi v City of Westminster Council [2024] EWCA 73 is what is the test for the surrender by operation of law of a joint-tenancy? The appeal was from a first appeal decision of Lane J. reported at [2023] EWHC 825 (KB).

City of Westminster Council (CWC) had granted the Appellant’s grandparents, Mr Kazam and Mrs Hussain a joint tenancy of a flat in 2005. In 2011 Mr Kazam left the flat and wrote to CWC making a homeless application. Mrs Hussain remained in the flat. On receipt of Mr Kazam’s homeless application CWC amended its internal record of the particulars of the joint-tenancy to state that the tenancy had been changed from joint to sole. There was no evidence that Mrs Hussain or Mr Kazam were aware of that change. In 2017 Mrs Hussain supported Mr Rahimi’s asylum application stating that she had a tenancy of the flat. Mr Rahimi came to live with Mrs Hussain and stayed there until her death in 2020. At that time Mr Hussain was still alive.

Mr Rahimi defended CWC’s possession claim on the basis that he had succeeded to Mrs Hussain’s sole tenancy of the flat. His defence required that the joint tenancy granted in 2005 had been surrendered by operation of law.

At trial HHJ Hellman held that the joint tenancy had been surrendered by operation of law. He found that Mr Kazam had unequivocally indicated his agreement to a surrender by (i) leaving the flat; (ii) making a homeless application and (iii) accepting a new social housing tenancy from a housing association. CWC had accepted the surrender by (i) removing Mr Kazam from the rent account for the flat and (ii) being instrumental in rehousing Mr Kazam. Mrs Hussain had unequivocally agreed to the surrender by excluding Mr Kazam from the flat and asking him to leave. HHJ Hellman did not rely on the change in CWC’s internal record of the tenancy.

Dan successfully represented CWC in its appeal to the High Court. Lane J. allowed the appeal on all four grounds, holding that neither Mr Kazam, nor Mrs Hussain, could be said to have surrendered the tenancy, or agreed to surrender the tenancy, by their conduct.

Mr Rahimi’s principal argument on his appeal to the Court of Appeal was that the change of CWC’s internal record amounted to the grant of a new tenancy to Mrs Hussain in her sole name and, with the assent of Mr Kazam, that that was sufficient to amount a surrender by re-grant.

Insofar as surrender of a joint tenancy is concerned, the CA held that where one of joint tenants assents to the grant of a new tenancy to the other joint tenant, in circumstances where there is a change of possession, that would be sufficient to satisfy the requirement of unequivocal conduct necessary to establish surrender by operation of law [53].

The CA considered whether there was evidence that either Mr Kazam or Mrs Hussain had assented to the grant of a new sole tenancy to Mrs Hussain. Lewison and Newey LLJ found that:

(1) The principles which apply when the Court is asked to infer the grant of a new tenancy from conduct are derived from Marcroft Wagons Ltd v Smith [1951] 2 KB 496. The question is what was the real intention of the parties? If the acceptance of rent can be explained on some other footing than the existence of a new tenancy, a new tenancy should not be inferred.

(2) There was no evidence that Mr Kazam had assented to the grant of a sole tenancy to Mrs Hussian [62] and [63]. In addition, there was no evidence that Mr Kazam had ever relinquished legal possession, which is a different question to whether he was in physical occupation [63].

(3) That Mrs Hussain’s conduct (e.g. her payment of the rent) after Mr Kazam left the flat was not inconsistent with the continuation of the joint tenancy [62] to [67].

Accordingly, there was no proper basis on which it could be inferred that CWC granted a new sole tenancy to Mrs Hussain and therefore she remained a joint tenant until her death [68]. Mr Hussain succeeded to the tenancy on her death and the Notice to Quit served by CWC determined the joint tenancy.

Macur LJ (dissenting) agreed with Lewison LJ’s exposition of the law, but held that the case should be remitted to the County Court because there was evidence on which it was possible to infer the grant of a new tenancy to Mrs Hussain [72] to [74]. However, she accepted that the evidence that supported the proposition that a new sole tenancy had been granted was ‘equivocal’ [75].

Nicholas Grundy KC and Daniel Crehan are barristers at Five Paper. They were instructed by Noelle Fitzgerald of Westminster City Council.