Joint weekly tenants of council flat executing deed purporting to release interest of departing tenant in favour of tenant wishing to remain – Council refusing to accept remaining tenant as sole tenant – Whether disposition void as an attempted assignment of a secure tenancy – Judgment for remaining tenant
In February 1994 the plaintiff (B) and her friend (H), who had a young son, took a weekly tenancy of a three-bedroomed flat in London NW5, at a rent of £52.21 per week which they bore in equal shares, whereafter B received housing benefit equal to her half-share. In July 1996 the council, informed by B that H intended to leave the flat towards the end of the month, refused to confirm that B would thereafter be treated as sole tenant and entitled to a corresponding increase in benefit. Using a document drawn by the Camden Community Law Centre, B and H executed a deed of release whereby H purported to release her legal and beneficial interest under the joint tenancy to B who purported to accept the same to hold as sole secure tenant of the flat with effect from the date of the deed. The council claimed that the deed did not transform the joint tenancy into a sole tenancy and that H continued to be jointly liable for the entire rent. That view was subsequently upheld by the Central London County Court which refused to declare that B was the sole tenant. B appealed.
Held The appeal was allowed.
1. Because the common law rule enabling a joint tenant to release his interest to the other(s) was specifically preserved by section 36(2) of the Law of Property Act 1925 the council could not claim that the deed operated as an attempted assignment. The difference between a release and an assignment being more than a matter of words, it was immaterial that a secure tenancy was declared by section 91 of the Housing Act 1985 to be incapable of assignment save in certain circumstances inapplicable to the present case.
2. The council had correctly pointed out that a release by H in favour of B during the course of a fixed term would not have relieved H from her obligations to the council. However, in the context of a periodic tenancy if the effect of the release was to vest the tenancy in one of the joint tenants for an interval however short, the joint tenant in whom the tenancy vests would be the sole tenant when the tenancy was renewed and the other joint tenant would no longer be liable.
Sylvester Carrott (instructed by Camden Community Law Centre) appeared for the appellant; Bryan McGuire (instructed by the solicitor to Camden London Borough Council) appeared for the respondents.
