Court of Appeal clarifies law on surrender and regrant of tenancies

Martin Westgate KC and Sarah Steinhardt appeared for the Appellant in Rahimi v City of Westminster Council [2024] EWCA 73, an important case affecting the fundamental rights and status of landlords and tenants where one joint tenant leaves. Reviewing the caselaw over the last 200 years, this second appeal was the first to consider in detail the requirements for a surrender of joint tenancies by operation of law in the modern era.

Mr Rahimi was the grandson of Mrs Hussain, the tenant of a property under a secure tenancy. When Mrs Hussain died, Mr Rahimi defended the claim for possession on the basis that on her death he had succeeded to the tenancy, something that would only have been possible in law if she was a sole tenant. If she was a joint tenant, the doctrine of survivorship would have taken precedence and precluded a succession. At issue then was whether when Mrs Hussain’s estranged-husband (Mr Kazam) had left the property in 2011, ultimately being re-housed by Westminster in social housing, the joint tenancy had been surrendered and a sole tenancy granted in its place.

At first instance HHJ Hellman had found that the joint-tenancy had been surrendered by Mr Kazam leaving the property, requesting help from Westminster and then accepting a new social housing tenancy. This had, he held, been accepted by Westminster who had taken his name off the rent account and assisted in securing re-housing for him, and by Mrs Hussain excluding him from the property. He went on to hold that Mr Rahimi had succeeded to the tenancy which necessarily implied that he also found that Westminster had granted a fresh sole tenancy to Mrs Hussain. Otherwise there could have been no succession. The claim for possession was dismissed. However on first appeal Mr Justice Lane reversed that decision, determining that there was no evidence of unequivocal concurrence by Mrs Hussain in any surrender by Mr Kazam [§61] and that as a matter of law it was necessary for there to be such unequivocal conduct by each joint tenant [§56]. In any event any act of excluding Mr Kazam from the Property could not constitute agreement with his acts of surrender because it preceded them [§64]. Lane J held that Mr Kazam had not surrendered the Property because his actions were equivocal [§67]; while, so far as reliance was placed on the grant of a fresh tenancy to Mrs Hussain, the judge had not found that there was any such grant and there was, in any event, no evidence before him to support such a finding [§67].

Giving the lead judgment for the Court of Appeal, Lord Justice Lewison clarified and overturned much of the legal analysis in the High Court decision and, crucially, confirmed that the law was as stated by the Appellants, namely, that if a new tenancy is granted to a sole tenant who remains in possession either at the outgoing joint tenant’s request or with his or her consent, that would give effect to a surrender and regrant. There was no authority for Westminster’s submission that the consent or agreement of the outgoing tenant must itself be independently unequivocal [§53]. That agreement could, the Court held, be inferred [§29]. Equally, the Court held that Lane J was wrong to hold that individually equivocal acts could not be combined to surmount the evidential threshold [§36].

However, on the facts of the case, the Court held by a majority (Lady Justice Macur dissenting) that there was insufficient evidence to find that a fresh tenancy had been granted to Mrs Hussain. Although Westminster had removed Mr Kazam from the rent account, there was no evidence that this had been communicated to Mrs Hussain [§66]. Although rent was thereafter only demanded from Mrs Hussain, this was not inconsistent with the continuation of a joint tenancy, given that the tenants were severally liable [§66]. It was important, on the majority’s reasoning, that Mrs Hussain had relied upon her 2005 joint tenancy agreement when supporting Mr Rahimi’s visa application in 2017 [§83]. The invitation to remit the case for a re-hearing in the County Court was declined and the appeal dismissed.

Martin and Sarah were instructed by Sally Morshead at Shelter Legal Services.