London Borough of Haringey v Ahmed & Anor (2017) EWCA Civ 1861
This was Haringey’s appeal of a High Court decision dismissing Haringey’s claim for possession against Ms Ahmed (our report here). A factual precis is that in 1988 two tenancy agreements were signed. The first by Ms A’s former husband, Mr A, (though with Ms A 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 Ms A and HA jointly. But in 2006 a further tenancy agreement was signed by HA alone. HA left in 2010, initially requesting that the tenancy be transferred to Ms A, then saying that she did not want to assign it. After Ms A 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.
At first instance, the High Court found that Mr A had acted as Ms A’s agent in signing the first tenancy, such that it was a joint tenancy, but he did not have her authority in the apparent surrender and grant of tenancy to Mr A and HA some days later. As the first tenancy had not been surrendered or terminated, Ms A remained the tenant. The second and third tenancy agreements only took effect as concurrent tenancies and had been terminated.
Haringey appealed primarily on the basis that it was not open on the evidence for the judge to make these findings on agency
(1) The judge erred in law in finding that Mr and Ms Ahmed entered into possession of the Property in October 1988 as secure tenants pursuant to the first agreement;
(2) The judge erred in law (or in law and in fact) in holding on the basis of the primary facts found by him that Mr Ahmed had authority to execute the first agreement as agent for his wife;
(3) Alternatively, if ground 2 is rejected, the judge erred in law (or in law and fact) in holding that Mr Ahmed did not also act as agent for his wife in surrendering the first tenancy;
(4) The judge erred in law in failing to consider that the burden of establishing that Mr Ahmed acted as an agent for his wife, and the extent of his agency, rested with Ms Ahmed.
The Court of Appeal noted that the Judge below had inferred an agency agreement from a ‘course of conduct’ in which Ms A had left it to Mr A to find accommodation from the family, stating
the course of conduct in Mr Ahmed securing a series of rented accommodation for the family beforehand with his wife accepting that he could act for her in doing so and trusting him is sufficient to give rise to an implied agency in the renting of the property.
However, the Court of Appeal noted both the Judge’s findings of fact, that Mr A never informed Ms A of any accommodation decisions, that Mr A was the sole homeless applicant, and the evidence of Ms A on cross-examination, that
(1) She had had no involvement in finding accommodation for the family;
(2) She was unaware that Mr Ahmed had applied to the Council as homeless;
(3) She did not know that the Council had offered them a tenancy of the Property;
(4) She did not know about the appointment to sign the first agreement;
(5) She did not know about the appointment to sign the second agreement.
On this evidence, the Court of Appeal concluded
there was no proper evidential basis for the judge’s conclusion that Mr Ahmed was authorised to act and did act as Ms Ahmed’s agent in entering into the first agreement.
On the issue of whether the first tenancy was surrendered, Mr A had signed the second tenancy agreement and this was an unequivocal act inconsistent with the continuation of the first tenancy. The surrender was unequivocally accepted by the council by grant of the second tenancy.
Appeal allowed. A cross appeal on the first instance Court dismissing Ms A’s argument that eviction would be disproportionate was also dismissed as there was no error of law in the Judge’s weighing of factors.