Rahimi v City of Westminster Council

Landlord and tenant – Succession – Surrender and regrant – Respondent local authority granting appellant’s grandparents joint tenancy of flat – Appellant continuing to pay rent after husband left – Appellant coming to UK and living with grandmother until her death – Court refusing appellant’s application to succeed to tenancy – Whether appellant entitled to possession by right of survivorship – Appeal dismissed In 2005, the respondent local authority granted to the appellant’s grandparents (K and H) a joint secure tenancy of Flat 5, Brackley Court, Pollitt Drive, in the City of Westminster. In 2011, K left the flat and applied to the respondent to be rehoused as a homeless person. On receipt of the application, the respondent amended its internal records to state that the tenancy had been changed from “joint to sole”. The appellant was a refugee from Iran. In 2017, H supported his application for a visa to come to the UK stating that she held a tenancy of the flat. The appellant arrived in the UK and lived with H until her death in July 2020. In May 2021, the respondent served a notice to quit addressed to K at the property on the basis that he had succeeded to the tenancy by right of survivorship; but as he was no longer living in the flat the tenancy had ceased to be a secure tenancy. In August 2021, the respondent issued proceedings for possession. The appellant argued that he was entitled to succeed to the tenancy. The county court held that H was the sole tenant under a tenancy granted to her alone by the respondent by way of implied surrender and regrant, following the K’s departure. On appeal, the High Court held that neither K nor H had surrendered, or agreed to surrender, the tenancy by their conduct: [2023] EWHC 825 (KB). The appellant appealed. Held: The appeal was dismissed, by a majority (Macur LJ dissenting). (1) Where it was alleged that a new tenancy had been granted to someone other than the original tenant, there had to be a change of possession. Where one joint tenant assented to the grant of a new tenancy to the other, in circumstances where there was a change of possession, that would be sufficient to satisfy the requirement of unequivocal conduct necessary to establish surrender by operation of law. In the present case, if the respondent granted a new tenancy to H, either at K’s request or with his consent, that would be sufficient to satisfy the requirement of unequivocal conduct. There was no requirement that the consent or agreement of the outgoing tenant had itself to be independently unequivocal: Metcalfe v Boyce [1927] 1 KB 758 and Haringey London Borough Council v Ahmed [2017] EWCA Civ 1861; [2017] PLSCS 208; [2018] HLR 9 considered. (2) The real question on this appeal was whether it was a proper inference that the respondent granted a new sole tenancy to H, with the consent of K. The principles applicable when the court was asked to infer the grant of a tenancy were laid down notably in Marcroft Wagons Ltd v Smith [1951] 2 KB 496. If the acceptance of rent could be explained on some other footing than the existence of a new tenancy, a new tenancy should not be inferred. To sustain the conclusion that the respondent granted a new tenancy to H, there had to be some communication or interaction between the putative landlord and the putative tenant which supported that conclusion. But nothing that passed between the respondent and H was inconsistent with the continuation of the joint tenancy. Despite K’s departure, H remained liable for the rent, as the tenancy agreement made clear. That was a very strong pointer against the creation of a new sole tenancy. (3) Section 81 of the Housing Act 1985 expressly contemplated a secure tenancy granted to more than one individual where only one of them occupied the dwelling-house as their only or principal home. K’s application to the respondent was on the basis that he was homeless. If the respondent had accepted that he was homeless and in priority need, it would have had a duty to secure housing for him unless he was intentionally homeless. That duty would have arisen even if K was a joint tenant of another social housing property if it was unreasonable for him to continue to occupy that property. Moreover, if the respondent had wished the joint tenancy to be terminated, it could (and no doubt would) have required service of a notice to quit by either or both joint tenants on the basis that a new tenancy would then be granted to H. The mere fact that K left the property (even at H’s request) did not support the conclusion that he relinquished joint legal possession. Occupation was not the same as possession. Nor was there any evidence that he consented to the grant of a new tenancy to H alone. There was no evidence to support the conclusion that K was “excluded” from the property. (4) Since there was no evidence that either K or H were aware of the contents of the respondent’s internal records, they could have had little if any bearing on the question whether the respondent granted a new tenancy to H alone. In any event, since both joint tenants were severally liable for the rent, those records were equally consistent with the continuation of the joint tenancy. Moreover, the respondent’s internal records did not amend the start date of the tenancy which remained 2005. Even the amendment of the records from “joint to sole” was more consistent with the continuation of the existing tenancy than the grant of a new one. If there had been the grant of a new tenancy to H alone it would never have been a joint tenancy. Applying the principles in Marcroft, there was no proper basis upon which it could be inferred that the respondent granted a new sole tenancy to H. Accordingly, she remained a joint tenant until her death, and at that point the joint tenancy vested in K by right of survivorship. The respondent validly terminated it, and the appellant was not entitled to succeed to it. (Per Macur LJ dissenting) There was evidence for a judge at first instance to conclude that a sole tenancy had been granted to H. Therefore, the case should be remitted to the county court for a rehearing. Martin Westgate KC and Sarah Steinhardt (instructed by Shelter Legal Services) appeared for the appellant; Nicholas Grundy KC and Daniel Crehan (instructed by Bi-borough Legal Services) appeared for the respondent. Eileen O’Grady is a barrister Click here to view a transcript of Rahimi v City of Westminster Council