All joint tenants must be a party to a surrender and acts constituting such a surrender must be unequivocal.
In City of Westminster Council v Kazam and another [2023] EWHC 825 (KB), Westminster Council appealed the county court’s dismissal of its possession proceedings and in making its decision the High Court reviewed the case law concerning the surrender of joint tenancies.
In 2015, the first defendant (D1) and his wife (Mrs Hussain) had been granted a secure tenancy by the council. In early 2011, D1 moved from the property. An internal council pro forma document dated 28 July 2011 had ticked on it the option “joint to sole” and the manuscript addition “Please remove Mr AM Kazam from rent account”. In or around June 2012, D1 was granted a social housing tenancy in Westminster.
In September 2017, the second defendant, Mr Rahimi (D2) (the grandson of Mrs Hussain), arrived in the UK. His visa application had been supported by Mrs Hussain and he lived with her from his arrival until her death on 10 July 2020. On 12 November 2020 he applied to the council for a discretionary succession. This was refused and a notice seeking possession was served on D1.
On 3 August 2021, the council issued its claim for possession on the basis that the joint tenancy of D1 and Mrs Hussain had continued until Mrs Hussain’s death and that as D1 did not live at the property his interest was properly determined by the notice to quit. The possession proceedings were met with the argument that the joint tenancy had been surrendered by operation of law and the tenancy re-granted to Mrs Hussain on a sole basis with D2 being the successor to that sole tenancy.
The council’s appeal was allowed. In order to be satisfied that there is a surrender by operation of law, there needs to be a quality and depth of evidence because such surrender is an exception to the formal requirements. The surrender must be by the tenant and all joint tenants must join the surrender. Any relaxation of existing principles to allow findings that a joint tenancy has come to an end would likely adversely affect the position of joint tenants and one cannot combine individually equivalent events to surmount the high evidential threshold. The conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended and such evidence was simply not present in this case.
Elizabeth Haggerty is a barrister