Armin Rahimi v City of Westminster Council

For a surrender by operation of law of a joint tenancy, the landlord and all joint tenants must participate in an arrangement inconsistent with the tenancy’s continuation. The conduct may be assessed cumulatively; a single unequivocal act is unnecessary. But the court must first establish that a new tenancy was actually granted. It cannot assume the alleged regrant in order to infer surrender. A new tenancy is not inferred where the parties’ conduct is equally referable to their existing rights and obligations. Internal rent-account changes, continued payment by one joint tenant, departure or rehousing of the other, and occupation by the remaining tenant may be insufficient. Here, the joint tenancy continued, vested in the surviving joint tenant, ceased to be secure, and could not be succeeded to.

Mrs Hussain and her husband originally held a secure joint tenancy of a council flat. Her husband left, was later rehoused, and was removed from the council’s rent account. Mrs Hussain remained in occupation and paid the rent. After her death, her grandson claimed succession to the tenancy.

The trial judge found an implied surrender and regrant. Lane J reversed that decision in [2023] EWHC 825 (KB). The central issue before the Court of Appeal was whether the council had granted Mrs Hussain a new sole tenancy with her husband’s consent, or whether the original joint tenancy continued.

By a majority, Lewison and Newey LJJ dismissed the appeal. Macur LJ dissented and would have allowed the appeal and remitted the matter for rehearing.

1. A surrender by operation of law of a joint tenancy requires an arrangement involving the landlord and all joint tenants which is inconsistent with the continued existence of the tenancy. The conduct must be unequivocal in its totality, but several individually equivocal acts may be considered cumulatively. The court applied the principles illustrated by Leek & Moorlands BS v Clark [1952] 2 QB 788, Greenwich LBC v McGrady (1982) 6 HLR 36, Brent LBC v Sharma (1993) 25 HLR 257 and Artworld Financial Corporation v Safaryan [2009] EWCA Civ 303.

2. If a landlord grants a new tenancy to one joint tenant at the request of, or with the consent of, the outgoing tenant, that new letting can itself imply surrender immediately beforehand. Consent may be inferred and need not independently be unequivocal. However, the grant of the new tenancy must first be proved; it cannot be assumed as the starting point. The court applied the reasoning in Sable v QFS Scaffolding Ltd [2010] EWCA Civ 682.

3. The proper inference of a new tenancy requires communication or interaction between landlord and putative tenant supporting a new contract. Conduct equally referable to existing rights and obligations supplies no material basis for the inference. Applying Marcroft Wagons Ltd v Smith [1951] 2 KB 496, the majority found that the departure and rehousing, rent payments, rent-account changes and internal records could all be explained without a fresh tenancy. The original agreement remained consistent with Mrs Hussain’s continued liability for rent, and neither tenant was shown to have known of or consented to a replacement tenancy.

4. Under the Housing Act 1985, the continued joint tenancy vested in Mr Kazam by survivorship when Mrs Hussain died. As he no longer occupied the flat as his only or principal home, the tenancy ceased to be secure and was validly terminated. Under section 88(1)(b), the one-succession rule did not prevent succession only because a fresh tenancy had not been created; the statutory distinction was supported by Bassetlaw DC v Renshaw (1991) 21 HLR 603. Mr Rahimi therefore had no right to succeed.

5. Remittal was refused. The principle of finality did not justify allowing the same case to be re-run on the existing materials.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal from the High Court.
2. High Court of Justice, King’s Bench Division: Lane J reversed the trial judge’s decision and held that there had been no surrender and regrant: [2023] EWHC 825 (KB).
3. County Court: HHJ Hellman found an implied surrender and regrant and held that Mr Rahimi had succeeded to the tenancy.