Protected tenancy – Surrender and regrant – Joint tenancy of two-bedroom flat – Respondent remaining after other tenants moving out – Respondent agreeing with then landlord to take over larger bedroom at reduced rent with new tenant to be found for smaller room – Respondent later occupying entire flat – Whether trespassing in smaller room – Whether surrender of tenancy of entire flat and regrant of part excluding smaller room – Whether appellant entitled to possession of smaller room – Appeal dismissed
The appellant owned the freehold of a house that contained two flats, one of which was occupied by the respondent. The respondent had originally shared the flat with a couple under a joint tenancy that was protected under the Rent Act 1977 and that the appellant’s mother had granted in 1988 as the then owner of the property. The couple had occupied the larger of the two bedrooms while the respondent slept in the smaller. When the couple moved out in 1996, the respondent wanted to move into the larger room but was unable to afford the same rent that the couple had paid. She reached an agreement with the appellant’s mother, whereby she would occupy the larger room at a reduced rate of £250 per month and the smaller room would be let to someone else. The room was let to two successive occupants, who paid rent directly to the appellant’s mother. After the second of these moved out in 1997, the respondent took over occupation of the entire flat, which she later shared with her partner and with her children.
Years later, the appellant brought a claim for possession of the smaller room on the ground that the respondent was trespassing there. He contended that the 1996 agreement between his mother and the respondent had consisted of a surrender of the existing tenancy of the entire flat with a regrant of a new tenancy that excluded the smaller room. He submitted that his mother had let the smaller room separately, together with the right to use common parts, including the living room, kitchen and bathroom. He relied upon the reduced rent paid by the respondent as showing that some smaller demise than previously must have been intended and upon the fact that rent for the lettings of the smaller room had been the subject of separate agreements between the occupant and the appellant’s mother, with rent paid directly to her.
In the court below, the judge rejected that interpretation of the 1996 agreement and found that the respondent had continued to have a tenancy of the entire flat and that the arrangement by which lodgers paid rent directly to the appellant’s mother was no more than a good faith agreement. The appellant appealed.
Held: The appeal was dismissed.
The judge’s findings of fact established no arrangement that amounted in law to a surrender of the tenancy of the entire flat with a regrant of part. That would require an unambiguous act or series of acts, by conduct or in writing, whereby the respondent relinquished the entire flat and the appellant’s mother relet part to her and let the smaller room separately to someone else. The introduction of two successive occupants in the smaller room was consistent not only with a separate letting but also with the respondent taking in lodgers who paid their contribution to the rent direct to the appellant’s mother as a matter of convenience. The nature of the agreement could not be determined by reference to the rent levels, since parties might vary these for a variety of reasons. Further, the appellant had failed to present an intelligible case regarding the terms of the alleged regrant to the respondent and whether, if the smaller room were let separately, there had been shared occupancy of the living room, kitchen and bathroom or simply an easement of use granted over them by the appellant’s mother to the occupant of the smaller room; there was no evidence that such rights had been in her power to grant. The judge’s interpretation of the agreement was correct.
Jonathan Manning and Victoria Osler (instructed by Community Law Clinic) appeared for the appellant; Thomas Grant and Alexander Winter (instructed by Bolt Burden Kemp) appeared for the respondent.
Sally Dobson, barrister
