Surrendering a joint tenancy

Elizabeth Dwomoh examines a recent judgment to discover the requirements necessary to surrender a joint tenancy by operation of law. Key point The conduct of the parties must unequivocally amount to an acceptance the tenancy has ended Surrender by operation of law is founded on the principle of estoppel. It requires that parties to a tenancy must have acted towards each other in a way that is inconsistent with the continuation of the tenancy. In Bellcourt Estates Ltd v Adesina [2005] EWCA Civ 208; [2005] 2 EGLR 33, the Court of Appeal determined that “a high threshold” must be crossed if a tenant was to be held to have surrendered their tenancy and the landlord was to be held to have accepted the same.  In City of Westminster Council v Kazam and another [2023] EWHC 825 (KB), the High Court found the threshold had not been crossed on the facts of the case. The facts In February 2005, City of Westminster Council granted Abdul Kazam and his wife, Shukriya Hussain, a secure joint tenancy of a property in Westminster.  In May 2011, Kazam made a homelessness application to the council under Part VII of the Housing Act 1996. He informed the council that he was residing with his daughter on a temporary basis after being asked to leave the property by his wife, who remained in occupation. In July 2011, the council amended Kazam and Hussain’s secure joint tenancy. In an internal pro-forma document headed “Amendments to housing tenancy details”, an officer of the council ticked the option “joint to sole” and included a manuscript note stating: “Please remove Mr AM Kazam from rent account”. In June 2012, Kazam was granted a social housing tenancy in Westminster. In May 2017, Hussain gave a witness statement in support of her grandson, Armin Rahimi, who had applied for a visa to enter the UK while living in a refugee camp in Greece. In her witness statement, she exhibited the joint secure tenancy agreement she held with Kazam, but clarified that he no longer resided at the property. On Rahimi’s arrival in the UK in September 2020, he moved in with Hussain. Rahimi resided with Hussain at her property until her death in July 2020. In November 2020, Rahimi applied to the council for a discretionary succession. The application was refused. The council served a notice to quit on Kazam to determine his interest in the property because he no longer resided there. The possession claim The council issued a claim for possession. Rahimi defended the claim, contending that Kazam and Hussain’s joint secure tenancy was surrendered by operation of law. He argued that the council had subsequently removed Kazam from the rent account and regranted Hussain a sole secure tenancy, to which he, as Hussain’s grandson, was successor. The trial judge found that Kazam had surrendered the tenancy by unequivocally relinquishing possession by moving out of the property and requesting to be rehoused by the council. Hussain had unequivocally agreed with Kazam’s act of surrender by excluding him from the property. The council appealed. It argued that the court below had erred in law in finding that Hussain had unequivocally concurred with Kazam’s act of surrender of the joint secure tenancy by excluding him from the property. Further, the judge had also erred in finding that Kazam had surrendered the joint tenancy by unequivocally relinquishing possession, moving and requesting that the council rehouse him, whereas Hussain remained in possession of the property. The propositions In allowing the council’s appeal, the High Court provided a useful summary of the propositions applicable to surrender by operation of law summarised in the case law and Woodfall: Landlord and Tenant.  The propositions included the following: A joint tenancy cannot be surrendered by the action of only one joint tenant; There is no legal distinction between a surrender by operation of law and an implied surrender; Surrender by operation of law applies to cases where a landlord or tenant has been a party to some act, the validity of which they are afterwards estopped from disputing, and which would not be valid if the tenancy had continued to exist; and 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. Not unequivocal The High Court highlighted that the position of joint tenants was likely to be adversely affected if the established principles were relaxed. As the Supreme Court highlighted in Solihull Metropolitan Borough Council v Hickin [2012] UKSC 39; [2012] PLSCS 174, the desire to achieve a solution in a particular case should not lead the courts away from deciding cases on a principled basis. In the present case, there was simply no evidence that Hussain had unequivocally agreed to the surrender, nor that she had excluded Kazam from the property. The pro forma document did not grant Hussain a sole tenancy. Without a surrender there could not have been a regrant of a sole tenancy to Hussain. Kazam had succeeded to the tenancy on Hussain’s death and the council had lawfully terminated the same by serving the notice to quit. Elizabeth Dwomoh is a barrister at Lamb Chambers Photo © Jason Alden/Shutterstock