Tenant surrendering tenancy – Tenant’s husband remaining in possession – Landlord claiming possession – Husband asserting rights bestowed by section 1(1)(a) of the Matrimonial Homes Act 1983 – Whether tenant could surrender tenancy – Whether landlord entitled to possession – County court finding tenancy surrendered – Appeal dismissed
On 9 April 1990 the respondent landlord granted to the tenant a secure tenancy of a three-bedroom maisonette at 3 Belmont Road, London N15. Thereafter, the tenant, her three children and the appellant occupied the premises. Subsequently, the tenant and the plaintiff were married. On 17 September the tenant and her children left the premises. On 11 November 1996 an advice bureau wrote to the landlord, on the appellant’s behalf, introducing him as the husband to the tenant and offering to pay the rent. The landlord refused the offer saying that it would require vacant possession when the tenant was rehoused. On 16 January 1997 the tenant wrote to the landlord saying that she was rehoused and that she wished to give up her tenancy.
The landlord informed her that she was to empty the premises of her possessions and then return the keys, and until such time she would remain liable for the rent. The tenant replied explaining that the plaintiff had changed the locks and therefore she was unable to remove her belongings from the premises. With the letter she enclosed the keys and asked the landlord to give her the opportunity to clear any of her possessions left behind by the plaintiff when he vacated. On 10 March 1997 the landlord issued a summons for possession. The county court, hearing preliminary issues, held that the tenant could surrender the tenancy notwithstanding that her husband was at all material times in occupation and that she had in fact surrendered her tenancy.
The appellant appealed contending that the tenant’s conduct in purporting to terminate the contractual tenancy, when she well knew that her husband continued in occupation, constituted a constructive eviction contrary to section 1(1)(a) of the Matrimonial Homes Act 1983. It was further contended that, although the appellant had failed to register a class F land charge under section 2(1) and 2(7) of the Land Charges Act 1972, during the subsistence of the tenancy, it was kept alive for the purposes of preserving the charge for so long as it would have continued had the tenancy not been surrendered, since the landlord had not given valuable consideration for the surrender.
Held: The appeal was dismissed.
1. There was nothing within section 1 of the 1983 Act to restrict the tenant’s right to terminate her contractual relationship with the landlord and or to vest in the appellant indefinite rights of occupation of the former matrimonial home, only terminable by an order under section 1(2)(a) or otherwise within the court’s jurisdiction. The section was plainly intended to regulate the rights of spouses inter se: Brent London Borough Council v Sharma (1993) 25 HLR 257; Hoggett v Hoggett (1980) 39 P&CR 121 considered.
2. The landlord had made it plain that it would not release the tenant from her continuing liability for the rent of the maisonette unless and until she returned the maisonette to its possession in the manner stipulated. She had
done so in so far as she was able and to the landlord’s satisfaction. The release that they thereupon granted was effectively the price that they paid to liberate the maisonette from her tenancy and, accordingly, any Class F land charge was not kept alive.
Julia Smart (instructed by Martin Shepherd & Co, of Enfield) appeared for the appellant; Anthony Tanney (instructed by Stafford Young Jones) appeared on behalf of the respondent.
Thomas Elliott, barrister
