And the first shall be last

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An accidental chain of tenancies, in which only the very first was left standing.

London Borough of Haringey v 1) Hansa Ahmed & 2) Shaheeda Ahmed [2016] EWHC 1257 (Ch) (Not on Bailii yet, we’ve seen the judgment).

Three tenancy agreements for the same property, apparently at least partly at the same time, and possession proceedings against someone who was not a tenant under either agreement. Just how was this going to work out…

The property is a 4 bed house, owned by LB Haringey. It is currently occupied by Shaheeda Ahmed (SA) and four children, 3 adult and one 14 years old.  She had lived there since 1988.

In 1988 two tenancy agreements were signed. The first by SA’s former husband, Mr A, (though with SA noted as ‘tenant/2nd person) and then the second, nine days later, by Mr A and his mother Hansa Ahmed (HA) as joint tenants.

Mr A left the property in 2002. Both he and HA wrote to the council asking for the tenancy to be transferred to SA and HA jointly. But in 2006 a tenancy agreement was signed by HA alone. HA left in 2010, initially requesting that the tenancy be transferred to SA, then saying that she did not want to assign it. After SA requested for a grant of tenancy in lieu of assignment, and was refused, the council served notice to quit on HA and began possession proceedings.

Now I am going to miss out a lot of the arguments about who said what to whom, who knew what when and what promises were or were not made. Because in the end, the case came down to blackletter law.

Section 40 Law of Property Act 1925 applied at the time of the 1988 tenancies. The first agreement, it was accepted, complied with those requirements. While it might not have met the requirement of s.54(2) being “a lease taking effect in possession for a period not exceeding three years, with possession being defined in the definition section as including the receipt of rent or profits or the right to receive the same”, this was of no matter

because once possession is taken, then the occupier has a periodic legal tenancy on the terms of the agreement, and that equity would in principle treat the first agreement as a specifically enforceable agreement for a tenancy.

The second tenancy agreement, marked as ‘amend tenancy’, was found to probably have arisen because while Mr A had initially intended a joint tenancy with SA, but had been ‘overruled’ by HA who insisted on being joint tenant. However, this second tenancy took effect as an assignment of the landlord’s reversionary interest for the period of the first tenancy, as a ‘concurrent tenancy’.

As the tenants on the first and second tenancies were different, though Mr A was a tenant on both, there was no issue of a concurrent tenancy being granted to the same tenant as the initial tenancy, which might have been a implied surrender.

The upshot was that the first tenancy took effect as the secure tenancy. The second, concurrent, 1988 tenancy took effect as a head tenancy (of Mr A and HA) of the first tenancy, held by Mr A. While the second tenancy had been determined by notice to quit from HA in about 2005, the first tenancy subsisted. The third tenancy likewise took effect and was ended by notice to quit as a concurrent tenancy, leaving the first tenancy of Mr A intact and undetermined.

As SA’s occupation maintained Mr A’s security of tenure under the first tenancy, the possession claim was dismissed.

Comment

There is obviously a lot more to the history than I have included, as the full judgment makes clear. However, the basic land law principles are clear, and the judgment is right in that regard.

Time was when social landlords though that they could do what they liked in terms of ‘amending’ or replacing tenancies. Some still do think that. But they can’t. And where there has been such a fudge in the past, social landlords have to be very clear that all previously granted tenancies have been taken into account when bringing possession proceedings. This, I suspect, will have cost Haringey dearly.

 

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession, secure-tenancy.

9 Comments

  1. And all over the country many students will be leaving their shared houses in the next few weeks, with other joint tenants remaining for a further year, and new occupiers being ‘added’ to existing tenancy agreements, deposits passed directly from arriving occupier to departing occupier, all without valid NTQ ever being served and an original joint tenancy enduring which was probably signed many years ago and is held by people who no longer live in the property….

  2. Any idea why the court did not treat the signing of the 2nd tenancy as an implied surrender by Mr A of tenancy 1?

    • I could have made that clearer. Court found first tenancy was joint by Mr and Mrs A (Mr A having authority to enter tenancy on her behalf). As second tenancy was joint Mr A and his mother, and no clear authority from Mrs A to enter it, no implied surrender.

    • As Giles says, the Court found that Mr A had implied authority to act as agent for Ms A in signing the initial joint tenancy – so the tenancy was treated as executed by both prospective tenants – but that his agency included no implied authority to surrender that tenancy.

      The difficulty with the decision is that there are no material facts found sufficient to establish implied agency. Even were such facts as were relied upon sufficient in law to establish implied agency, they imposed no limitation upon the agency authority.

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