Sanctuary Housing Association v Campbell

A contractual tenancy may be surrendered by operation of law where landlord and tenant unequivocally treat it as ended. A spouse’s continued occupation does not prevent surrender of a secure tenancy.

Rights of occupation under section 1 of the Matrimonial Homes Act 1983 regulate the spouses’ rights between themselves. They neither restrict the tenant spouse’s right to terminate the tenancy nor confer an indefinite right to remain against the landlord.

A landlord gives valuable consideration for surrender by releasing the tenant from future rent in return for the steps accepted as yielding possession.

A housing association granted a secure weekly tenancy to a woman who occupied the property with her children and the appellant, whom she later married. After leaving the property and obtaining alternative accommodation, she returned her keys and sought to relinquish the tenancy. The appellant remained in possession.

The Edmonton County Court determined two preliminary questions in the landlord’s possession proceedings. It held that the tenancy could be surrendered despite the appellant’s occupation and that a surrender had occurred. The appellant appealed.

The principal issue was whether his occupation rights under section 1(1)(a) of the Matrimonial Homes Act 1983 prevented surrender by operation of law or gave him a defence to the landlord’s claim.

1. Appeal dismissed unanimously. Lord Justice Thorpe delivered the leading judgment, with which Lord Justice Potter agreed. The recorder correctly concluded that the tenancy had been surrendered by operation of law, although his separate conclusion that there had been an express surrender could not be supported.

2. Surrender by operation of law requires unequivocal conduct by both landlord and tenant. The tenant had obtained alternative accommodation, returned her keys and done everything reasonably possible to comply with the landlord’s requirements. The landlord accepted those acts as terminating the tenancy. Her husband’s continued occupation did not make either party’s conduct equivocal.

3. Section 1 of the Matrimonial Homes Act 1983 regulates the rights of spouses between themselves. It does not restrict a tenant spouse’s right to terminate the contractual relationship with the landlord. Nor does it give the non-tenant spouse an indefinite right of occupation against the landlord which can be terminated only by a court order under section 1(2)(a).

4. The earlier authorities concerning spouses occupying homes protected by the Rent Acts did not govern a contractual secure tenancy. The proposition in Hoggett v Hoggett that a spouse’s continued occupation prevented surrender arose from a concession founded on those authorities and was also distinguishable on its facts. The dicta in the two 1949 cases had no surviving force in this context.

5. The surrender was supported by valuable consideration. The landlord had refused to release the tenant from her continuing rent liability until she complied with its requirements. Its subsequent release of her from future rent was the price paid for the surrender and was not merely an incidental consequence of it.

6. Section 2(6) of the Matrimonial Homes Act 1983 did not preserve a charge after surrender. It creates no occupation rights and merely provides machinery by which rights arising from a registered charge operate against a landlord.

1. Court of Appeal: The appeal was dismissed. The finding of surrender by operation of law was upheld, while the finding of express surrender was not supported.
2. Edmonton County Court: Mr Assistant Recorder Warren QC determined preliminary questions in the landlord’s possession proceedings. He held that surrender was legally possible despite the husband’s occupation and that the tenancy had been surrendered.