It is permissible to consider combined individual equivocal acts when deciding whether there has been unequivocal conduct sufficient to demonstrate an implied surrender of a joint tenancy. A grant of a new tenancy to one of two joint tenants (with the consent of the other) would be sufficient to satisfy the requirement of unequivocal conduct.
On 9 February 2005, Westminster Council granted a joint secure tenancy of Flat 5, Brackley Court, Pollitt Drive, Westminster, to Mr Kazam and Ms Hussain. In March 2011, Kazam moved out of the flat and was subsequently rehoused in Westminster. After July 2011, Hussain alone paid the rent for the flat which was not demanded from Kazam. Hussain died in July 2020 and Westminster served a notice to quit on Kazam and brought possession proceedings. In Rahimi v City of Westminster Council [2024] EWCA Civ 73; [2024] PLSCS 29, the Court of Appeal had to consider whether Hussain occupied the flat under the joint tenancy (which was determined by the notice to quit) or whether she occupied the property under a sole tenancy which would then allow a statutory succession to her grandson Mr Rahimi to take place.
In the county court, the trial judge held that there had been an implied surrender of the joint tenancy and that Rahimi was entitled to succeed. This decision was overturned on appeal by Lane J (City of Westminster Council v Kazam and another [2023] EWHC 825 (KB)) who (having reviewed the authorities) was not satisfied that there had been acts sufficient to demonstrate a surrender of the joint tenancy. The implied surrender would have to bind both of the joint tenants and the landlord.
The Court of Appeal observed that Lane J had been wrong to say that individual equivocal acts cannot be combined to surmount the evidential threshold necessary to establish an implied surrender. Further, if a new sole tenancy (with, at least, the consent of Kazam) had been granted, that in itself would constitute unequivocal conduct inconsistent with the continued existence of the joint tenancy.
However, there was no direct evidence of a fresh tenancy having been granted. Although Lady Justice Macur considered that there was evidence from which the trial judge could have inferred a new tenancy (and would have remitted the matter to the county court for a rehearing), neither Lord Justice Lewison nor Lord Justice Newey were satisfied that a new tenancy could be inferred. A number of the matters relied upon to show a sole tenancy were equally consistent with the continuation of the joint tenancy and such matters would not suffice (Marcroft Wagons v Smith [1951] 2 KB 496). The appeal was dismissed.
Elizabeth Haggerty is a barrister
