Tenant accepting tenancy of new accommodation and serving notice to quit in respect of former flat — Whether implied surrender of that tenancy — Whether landlord entitled to possession of flat from tenant’s husband — Appeal dismissed
The appellant’s wife rented a flat from the respondent housing association on a weekly tenancy. The appellant was not a joint tenant, although, as a spouse, he was entitled to occupation and other rights under section 30 of the Family Law Act 1996. The wife subsequently left the appellant amid allegations of domestic violence, and moved out of the flat into temporary accommodation. In July 2000, the association offered her a tenancy of alternative premises, making it clear that, if she accepted, she would have to terminate the tenancy of the former flat. On 11 July, the wife and an employee of the association both signed the tenancy agreement for the new accommodation. The tenancy was to start on 17 July, upon which date the wife moved in and signed a notice to quit in respect of her former flat. The association subsequently requested, and the wife provided, a further notice to quit.
The association later applied for a possession order against the appellant in respect of his wife’s former flat, which he continued to occupy. It was common ground that the appellant had a continuing right of occupation only so long as his wife remained as tenant. The judge granted the order, finding that the wife had no continuing tenancy because she had surrendered it to the association by operation of law. The surrender was implied, not express, because section 52(1) required the execution of a deed in the case of an express surrender. The appellant appealed.
Held: The appeal was dismissed.
The essence of surrender by operation of law was dependent not upon the parties’ intention but upon whether their acts gave rise to an estoppel sufficient to prevent the assertion by either of them that the term of the tenancy had continued: Allen v Rochdale Borough Council (2000) Ch 221 and Oastler v Henderson (1877) 2 QBD 575 applied. A surrender could not be effected by a mere oral agreement. The acts of the wife and the association prior to 17 July were insufficient to effect an implied surrender. However, the conduct of the parties after that date appeared to point unequivocally to the inference that, as from 17 July, the association had accepted that the wife’s tenancy of the flat had been terminated. The wife’s notice to quit was an act performed at the association’s request, manifesting her intention to terminate the tenancy immediately and, on the same day, to assume new obligations to the association in respect of the new accommodation; Ealing’s response manifested unequivocally its acceptance that the tenancy was at an end. The judge had accordingly been entitled to find that an implied surrender had been effected on 17 July. That conclusion was unaffected by the service of the later notice, which was no more than a “belt-and-braces” exercise.
Matthew Hutchings (instructed by Brian McKenna & Co, of Hounslow) appeared for the appellant; Alexandra Stagi (instructed by Prince Evans) appeared for the respondent.
Sally Dobson, barrister
