An important Court of Appeal case has reaffirmed the succession criteria for a tenancy when a joint tenant leaves a secure tenancy. Unlike assured shorthold tenancies, secure tenancies often allow for strong succession rights. This may allow family members such as spouses or children to succeed to the tenancy should the original tenant pass away. This case also outlines the rights and status of landlords and tenants in situations where one of the joint tenants in a secure tenancy leaves a property. Furthermore, it addresses the issue of when surrender and regrant applies if a joint tenancy leaves a property.
But what happens when a joint tenant in a secure tenancy decides to leave a property? Well, normally this means that both joint tenants continue to be responsible for the rent. However, the case we shall be discussing today, Rahimi v City of Westminster Council, presents a more complicated situation.
This case focuses on an appeal by the grandson of a former tenant of a flat owned by Westminster Council. The grandson (the appellant in this case) was appealing against a decision which had reversed a previous judgement that held that the appellant’s grandmother was the sole tenant following the departure of her husband from the property.
Background
To summarise the background of this case, the appellant (Mr Rahimi) was the grandson of a tenant (Mrs Hussain) who had originally rented the flat under a joint tenancy with her husband. The flat was owned by the local authority, Westminster Council. The husband left the property and became homeless, leaving the grandmother as the only occupant until her grandson, Mr Rahimi, arrived in the UK and started living with her.
Following Mrs Hussain’s death, Mr Rahimi defended his claim for possession on the basis that he had succeeded to the tenancy on Mrs Hussain’s death. However, this was dependent on the question of whether prior to her death, Mrs Hussain could be deemed a sole tenant. If she was a joint tenant, despite her husband leaving, succession would be prevented by the right of survivorship, which would mean Mrs Hussain’s estranged husband, Mr Kazam, would have been inherited sole tenancy by way of survivorship.
The trial judge had held that Mrs Hussain was the sole tenant granted to her by the local authority following Mr Kazam’s departure as a result of implied surrender and regrant, by way of Mr Kazam voluntarily moving out of the property. As a result, they held that the appellant, Mr Rahimi was entitled to succeed to the secure tenancy. However, on first appeal, the judge found that there had been no surrender of the joint tenancy and therefore no regrant. This was appealed by Mr Rahimi.
Decision
This appeal brings us to the subject case of this article. The main question which arose was whether the local authority had granted a new sole tenancy to Mrs Hussain with Mr Kazam’s permission.
It was found that:
- There was no support for the finding by the trial judge that Mr Kazam had surrendered joint legal possession
- Mrs Hussain remained liable for the rent
- Mr Kazam made no request for the tenancy to be transferred solely to Mrs Hussain, nor was there evidence of the keys being returned
- Leaving the property was not evidence of him relinquishing joint legal possession
- There was also no evidence that Mr Kazam either consented to the grant of a new tenancy to Mrs Hussain, knew about any arrangement between her and the local authority, or that he had been excluded from the property
- No evidence that Mrs Hussain had agreed to be solely responsible for the rent
- There was therefore no evidence that Mrs Hussain had been granted a new sole tenancy by the local authority
- Mrs Hussain had relied on her 2005 joint tenancy agreement when supporting her grandson, Mr Rahimi’s visa application in 2017
As a result of these findings by the Court of Appeal, it was concluded that Mrs Hussain had remained a joint tenant until her death. Mr Rahimi was therefore not entitled to succeed to this tenancy.
The justice who gave the lead judgment for the Court of Appeal, Lord Justice Lewison confirmed that the law is as follows: when a new tenancy is granted to a sole tenant, surrender and regrant would only occur in cases where the new tenancy is at the outgoing joint tenant’s request or with their consent.
Our thoughts
This important case clarifies the law on both succession of tenancies, as well as surrender and regrant in a secure tenant contract. It is not enough for a sole tenancy to be created if one of the joint tenants simply vacates the property. Instead, a new sole tenancy must be created by way of surrender and regrant between the landlord and tenant.
This underlines the importance of clear communication between landlords and tenants when it comes to their rental situation, particularly in joint tenancies where both parties are both jointly and independently liable for rent. If Mrs Hussain had been granted a new sole tenancy through surrender and regrant, this would have strengthened Mr Rahimi’s successions rights. If you require any advice or need help with your rental situation, contact us today and we will be happy to help.
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