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No surrender


City of Westminster Council v Kazam & Anor (2023) EWHC 825 (KB)

It is always the joint tenancies that cause problems…

This was an appeal of a first instance decision dismissing a claim for possession by Westminster and declaring that Mr Rahimi had succeeded to a secure tenancy. It all turned on whether there had been a surrender and regrant of the tenancy to Mr Rahimi’s grandmother, Mrs Hussain.

In 2005, Westminster had granted a joint secure tenancy to Mr Kazam and Mrs Hussain, who were married. In 2011, Mr K, via solicitors, informed Westminster that he had left the property and was waiting for Westminster to arrange private sector accommodation for him. Shortly afterwards, Mr K made a homeless application.

A couple of months later, Westminster produced an internal document, headed

Amendments to housing tenancy details”. This is a pro forma document dated 28 July 2011. Under the heading, “Parties and agreements”, the option “joint to sole” is ticked and there is a handwritten note stating, “Please remove Mr AM Kazam from rent account”. It is signed by the appellant’s housing officer and witnessed by the appellant’s estate manager.

Mr K soon after was permitted to join the housing register and a year later, allocated a secure tenancy. Mrs H remained in the property.

In 2017, Mrs H was joined by her grandson, Mr Rahimi, who had been in a refugee camp in Greece. He remained in the property with Mrs H until her death in 2020. He applied for discretionary succession but was refused and Westminster brought a possession claim.

At first instance, the circuit judge found that the joint tenancy had been surrendered by operation of law, and regrant of a sole tenancy to Mrs H made in 2011. Mr R succeeded to that tenancy.

Westminster appealed. The High Court upheld that appeal.

For a surrender by operation of law, there needed to an unequivocal act that was incompatible with the continuation of the tenancy.

For joint tenants, all tenants must join in the surrender, either by unequivocal act, or by clear authority for the surrendering tenant to do so on their behalf.

Following a useful history of case law on surrender by operation of law, or implied surrender, the High Court found that that the conduct of Mrs Hussain could not be sufficient to amount to an unequivocal act incompatible with the joint tenancy continuing. At best, the evidence was that she had agreed to pay the full rent and agreed that Mr K had left. There was also no evidence that Mrs H had given Mr K authority to surrender the tenancy on her behalf, nor that Mrs H had excluded Mr K from the property, as had been found by the first instance Judge, despite not being pleaded.

The cases disclose many instances in which one joint tenant leaves as a result of disharmony or worse with their spouse or other partner. If the joint tenancy can be ended in these circumstances by anything less than the unequivocal conduct of the joint tenant who remains in the property, one can easily envisage how that tenant’s interests could be damaged. There is, accordingly, a high degree of importance in the terminology used in the cases, such as the “high threshold” in Belmont Estates, and the fact that, as in Hammersmith, the behaviour cannot be “equivocal”. The facts of Tajormani show how even the actions of both parties, which might be said to point clearly towards surrender, may not in fact be taken to have that consequence.

Westminster’s internal note did not, in itself, effect a new sole tenancy. Absent a surrender, there could have been no re-grant of a sole tenancy.

Accordingly, Mr K had succeeded to the tenancy by survivorship, but was not resident there. The tenancy was ended by Westminster’s notice to quit. Mr R had not succeeded.

The Judge acknowledged the impact on Mr R, but referenced the words of Lord Sumption JSC in Solihull Metropolitan Council v Hickin (2012) UKSC 39

“Any system of statutory protection which deals with interests as varied as residential tenancies and depends for its practical operation on the accidents of cohabitation, matrimonial break-up and death will inevitably give rise to anomalies at the margins. But the scope of the rights created and the circumstances in which they arise are questions to be resolved on a principled basis. It is not productive, on an issue like this one, to decide it by reference to the competing anomalies and injustices that result from each side of the argument”.


While the decision on the law of surrender is very likely right, there is a certain irony in the court defending it on the basis of the potential impact on a remaining joint tenant, while the rule in Monk still operates to allow notice to quit by a joint tenant, whatever the wishes of the remaining tenants.

The case also shows the problems of housing departments taking an ad hoc approach to ‘regularising’ the position after the departure of one joint tenant through relationship breakdown. Westminster may have been prepared to treat Mrs H as if she was a sole tenant, but that is simply not enough.

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.


  1. Daniel N

    Another housing issue for the “why we should do things the way the Welsh do it” pile I guess.

  2. Andy Humphrey

    This makes no sense to me. Surely Mr K could not have been allocated a new secure tenancy if he still held the tenancy of the property from which he had moved out? Local authorities check this as a matter of routine and my experience is that they would normally require the leaving partner to terminate the existing joint tenancy before they can be allocated a secure tenancy of their own. Failure to do this would mean that Mr K effectively had two secure tenancies (one of his new home and one of the property where Mrs H continued to live, presumably occupying the property on behalf of the joint tenants) – which of course is a legal nonsense. Either Mr K’s new tenancy could not have been a secure tenancy, or he must have formally terminated the previous joint tenancy; the “middle way” found by the Court in this case does not appear to be available in law. Or am I missing something glaringly obvious?

    • Daniel N

      There’s no law that automatically prevents a person having two secure tenancies. In the absence of a joint tenancy it won’t normally be sustainable because one of the dwellings will cease to be the tenant’s only or principal home and thus lose secure status, (s.81 Housing Act 1985) but where a joint tenant remains in the old property it won’t lose secure status.

      Now obviously, councils don’t typically *want* an applicant to have two secure tenancies and will often make an offer of a new secure tenancy conditional upon serving NTQ on the old tenancy, but if the council don’t do that then both secure tenancies will continue uninterrupted.

      • Giles Peaker

        Well, to be fair, there can’t be two *secure* tenancies – the ‘only or principal home’ rule prevents that. But there is nothing in law to stop someone being allocated a secure tenancy, when they are already a tenant (even a secure tenant) of another property. Just that one of the tenancies will be, or will become, just a contractual tenancy, terminable by notice to quit. And that is what happened here, in the court’s view.

        Obviously Westminster thought Mr K was no longer the tenant of the original flat, because they had amended their own records. But Westminster were wrong.

        • Daniel N

          You’re right. Sorry, I was referring to the situation while Mrs H was still alive and occupying the property, as the post I was replying to was talking about the situation when Mr K’s new secure tenancy was first created. At that point in time Mr K would have two secure tenancies, as Mrs H’s occupation of the original dwelling as a joint tenant would mean the original joint tenancy retained secure status. Once Mrs K passed away and no one tenant was occupying the dwelling it would have lost secure status as you say.

          I didn’t phrase my post particularly clearly though. Sorry about that.

        • Giles Peaker

          Yes, indeed – completely agree, the joint tenancy preserved as secure by Mrs H.

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