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”.
Comment
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.