City of Westminster Council v Abdul Kazam & Anor

A surrender by operation of law is founded on estoppel and requires conduct which unequivocally treats the tenancy as ended. Where the tenancy is joint, the court must be especially cautious before inferring surrender. The remaining joint tenant must have unequivocally assented to the surrender; individually equivocal acts cannot be aggregated to overcome the high evidential threshold. A tenant’s departure and request for rehousing may remain equivocal where another joint tenant continues in possession. An appellate court should not re-evaluate facts afresh, but may intervene where an identifiable flaw undermines the first-instance conclusion. A procedural irregularity is material where it deprives a party of the opportunity to address an issue and causes prejudice.

Westminster City Council appealed against an order of HHJ Hellman dismissing its possession claim concerning a secure joint tenancy. The first respondent, one of the original joint tenants, had left the property and later obtained separate social housing. The second respondent, the grandson of the other joint tenant, claimed succession after that tenant’s death.

The trial judge held that the joint tenancy had been surrendered by operation of law and re-granted to the remaining tenant as a sole tenancy. The Council challenged the findings that the departing tenant had surrendered the tenancy and that the remaining tenant had unequivocally agreed to the surrender, as well as the procedural fairness of the judge’s reliance on an unpleaded finding of exclusion. The central issues were whether the evidence established surrender and whether the appeal should be allowed under CPR 52.21.

1. Appeal allowed. The findings that the joint tenancy had been surrendered and that the second respondent had succeeded to a sole tenancy were set aside. The Council was entitled to an order for possession.
2. A surrender by operation of law is an exception to statutory formalities governing rights in land. It is founded on estoppel and requires conduct which unequivocally amounts to acceptance that the tenancy has ended. The high evidential threshold protects against unjust inferences from conduct which is consistent with the tenancy continuing.
3. Joint tenancy was a material feature. The court should be more cautious, not less, before inferring surrender where one joint tenant leaves after domestic disharmony and the other remains in occupation. There was no sufficient evidence that Mrs Hussain had unequivocally assented to D1’s alleged surrender. The finding that she had excluded him was unsupported by the pleadings and evidence.
4. D1’s departure, request for rehousing and subsequent rehousing did not establish unequivocal surrender while Mrs Hussain remained in possession. The evidence was equivocal. A collection of equivocal events could not be combined to cross the required threshold, and the trial judge had made no finding that a fresh tenancy had actually been granted.
5. The judge’s reliance on an unpleaded and unargued finding of exclusion caused prejudice. The Council lost the opportunity to address the point at trial, and the omitted submissions would have materially affected the outcome. The procedural ground therefore also succeeded under CPR 52.21.
6. The court applied the appellate restraint applicable to evaluative factual decisions. It did not conduct the balancing exercise afresh, but intervened because the trial judge’s conclusion contained identifiable legal and evidential flaws.

• High Court (King’s Bench Division): Appeal from the order of HHJ Hellman, made after an ex tempore judgment on 26 May 2022. The appeal was allowed and possession ordered.