Ealing Family Housing Association Ltd. v McKenzie & Anor

A tenancy is surrendered by operation of law where the landlord and tenant perform unequivocal acts which estop either from asserting that it continues. Their intention alone is insufficient.

The tenant need not deliver vacant possession where another occupier prevents this. It may suffice that the tenant does everything reasonably possible to abandon the tenancy and the landlord unequivocally accepts its termination. An invalid notice to quit may form part of that conduct, particularly where the landlord closes the rent account and treats the remaining occupier as unlawful.

A housing association granted a sole assured tenancy to a wife who occupied the flat with her husband. After their separation, she left the flat, accepted another tenancy from the association and signed an invalid short notice to quit. The association ceased charging her rent for the original flat and treated her husband as an illegal occupier.

His Honour Judge Oppenheimer held that the original tenancy had been surrendered by operation of law and ordered the husband to give possession. The husband appealed. The central issue was whether the landlord’s and tenant’s conduct effected an implied surrender despite the invalid notice and the husband’s continued occupation.

1. Appeal dismissed unanimously. Rimer J gave the judgment, with which Clarke and Mantell LJJ agreed. Although the county court judge’s stated reasoning was incomplete, the evidence established a surrender by operation of law on 17 July 2000.

2. An express surrender required a deed under section 52(1) of the Law of Property Act 1925. No deed existed. The question was therefore whether the tenancy had been surrendered by operation of law within section 52(2)(c). Such a surrender depends on acts creating an estoppel which prevents landlord and tenant from asserting that the tenancy continues. Intention or a mere oral agreement does not suffice.

3. No surrender occurred on 11 July. The tenant had not yielded possession, returned keys or performed any other unequivocal act inconsistent with the tenancy’s continuation. Any agreement that she would terminate the original tenancy in consideration of the new tenancy was also ineffective under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. The later preparation of a notice to quit showed that both parties still treated the original tenancy as subsisting.

4. The position changed on 17 July. The tenant signed a notice manifesting an immediate intention to terminate the original tenancy and assumed the obligations of the new tenancy. Although the notice was invalid under section 5(1) of the Protection from Eviction Act 1977, the landlord closed the original rent account, transferred the arrears to the new account and instructed staff to treat the husband as an illegal occupier. Taken together, those acts unequivocally showed that both parties treated the original tenancy as terminated.

5. Actual delivery of vacant possession is not essential. A tenant prevented by a remaining occupier from yielding possession may do everything possible to abandon the tenancy. A surrender follows where the landlord then conducts itself unequivocally in acceptance of that abandonment. The approach in London Borough of Brent v Sharma and Vyas and Sanctuary Housing Association v Campbell supported that conclusion.

6. The landlord’s later request for another notice to quit was only a precautionary measure. It neither made the earlier conduct equivocal nor revived the tenancy. The possession order therefore stood, with costs.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the possession order because the tenancy had been surrendered by operation of law on 17 July 2000.

2. Brentford County Court: His Honour Judge Oppenheimer ordered the appellant to give possession to the housing association after finding that the tenancy had been surrendered by operation of law.