ANDRÉ v ROBINSON

A change in rent or a landlord’s direct receipt of payments from an additional occupier does not, by itself, establish a surrender of a tenancy and a regrant of part. The court must identify an unambiguous act or series of acts, by writing, conduct or both, showing that the tenant gave up possession of the premises and that the landlord separately relet the relevant part on ascertainable terms. An arrangement allowing another person to occupy part of the premises may instead be a subletting, licence or lodger arrangement made by the tenant. Where the alleged regrant leaves the rights to use the remaining rooms undefined, that uncertainty strongly counts against a surrender and regrant.

Ms Robinson held a protected statutory tenancy of a two-bedroom flat. After her co-tenants left, she agreed with the landlord to pay an increased rent and to introduce occupants to the smaller bedroom, whose payments were made directly to the landlord. The freehold later passed to Mr André, who claimed possession of the smaller bedroom on the basis that the original tenancy had been surrendered and part regranted.

The Barnet County Court accepted Ms Robinson’s evidence, found no intention to create a new legal agreement, and dismissed the possession claim. Mr André appealed, arguing that the rent arrangements and direct payments showed that the landlord had resumed possession of the smaller bedroom.

1. Appeal dismissed. The factual findings did not establish a surrender of the whole tenancy to Mrs André followed by a regrant of the remainder of the flat to Ms Robinson.
2. The relevant question was the legal characterisation of the arrangement found by the judge. Rent levels were not determinative. Parties may vary rent for different reasons, and here the arrangement was consistent with an additional occupier contributing directly to the tenant’s rent without the landlord first recovering possession of the room.
3. The direct payment of rent to the landlord did not establish a surrender and regrant. The occupants could have been subtenants or lodgers introduced by Ms Robinson with the landlord’s agreement. On either analysis, Ms Robinson had not parted with possession of the smaller bedroom to the landlord.
4. A surrender and regrant would have required an unambiguous act or series of acts, in writing, by conduct or both, by which Ms Robinson gave up possession of the flat and Mrs André separately let the smaller bedroom and the remainder to her on ascertainable terms. The evidence did not support such an occurrence.
5. The alleged regrant was also legally unintelligible because the claim concerned the smaller bedroom while assuming continuing rights to use the bathroom, kitchen, toilet and living room. No evidence or finding identified whether those rights were joint possession, an easement or a licence. That uncertainty reinforced the conclusion that no surrender and regrant had occurred.
6. HHJ Pearl’s conclusion was factually tenable and legally correct. The claim for possession of the smaller bedroom was properly dismissed.

• Court of Appeal (Civil Division): [2007] EWCA Civ 1449. Appeal from the Barnet County Court dismissed.
• Barnet County Court: HHJ Pearl dismissed Mr André’s claim for possession of the smaller bedroom.