It is not uncommon that we see, when instructed to deal with a claim for possession of a property let on an assured shorthold tenancy (AST), a change in those understood to be the tenants responsible for the tenancy compared to the tenants originally listed in the AST. Specifically, we are often told that one of the joint tenants left the property many years ago and were “taken off the tenancy”, with the result that the remaining joint tenant is now the sole tenant.

Our Legal Update from February 2019 here addressed this very issue, and corrected the common misconception that, when a joint tenant vacates the premises, their liability in respect of the joint tenancy comes to an end. That Legal Update confirmed that, in such circumstances, the joint tenancy will continue and the departing tenant will continue to have responsibilities under the tenancy agreement - including to pay rent - even though they do not reside there, and may not have done so for many years.

In the recent case of City of Westminster Council -v- Kazam & Rahimi (2023) EWHC 825 (KB), the High Court considered whether the removal of a joint tenant from the tenancy amounted to surrender of the original joint tenancy and a re-grant of a sole tenancy to the remaining tenant.

Whilst the case concerned a secure tenancy under the Housing Act 1985 (“the 1985 Act”) granted by a local authority, as opposed to an AST, the principles that arose within it apply equally to a standard AST in the private sector.

Background

The Court was required to consider whether the original joint tenancy granted by Westminster Council (“landlord”) in 2005 to Mr Kazam and Mrs Hussain, remained a joint tenancy for the purposes of a request by Mrs Hussain’s grandson, Mr Rahimi, to succeed to the tenancy following the death of Mrs Hussain in 2020. If the tenancy was a joint tenancy, no succession rights would be available by virtue of Section 88(1)(b) of the 1985 Act (as no succession is possible to a joint tenancy, under those provisions).

Mr Kazam had left the property in 2011 and a form headed “Amendments to housing tenancy details” was completed, with an option ticked “joint to sole”. The form then said “Please remove Mr AM Kazam from rent account” and was signed by a housing officer and witnessed by the estate manager for the landlord. Mr Kazam was later granted a new secure tenancy elsewhere.

The County Court held that this document had the effect of surrendering the original joint tenancy between Mr Kazam and Mrs Hussain, and re-granting a new tenancy to Mrs Hussain in her sole name. As this was a new, sole tenancy, the succession rights afforded under Section 87 the 1985 Act were available to Mr Rahimi (as a family member living with her for 12 months prior to her death). The Court held that :-

1. Mr Kazam had surrendered the tenancy by unequivocally relinquishing possession, moving out of the property and requesting new social housing accommodation; and

2. Mrs Hussain had unequivocally agreed with Mr Kazam’s act of surrender by excluding him from the property.

The landlord appealed.

 he decision

The High Court allowed the appeal and found that the joint tenancy had continued.

The Court confirmed that, in order for there to be an effective surrender of the joint tenancy, the conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended. The Court found that, when dealing with joint tenancies, a high threshold for this test must be applied. Otherwise, if a joint tenancy could be ended by anything less than the unequivocal conduct of the joint tenant who remains in the property, one can easily envisage how that tenant's interests could be damaged.

The Court concluded that there simply was no evidence of unequivocal concurrence by Mrs Hussain to any purported surrender by Mr Kazam. Therefore the decision of the County Court that Mrs Hussain had unequivocally agreed to the surrender by excluding Mr Kazam from the property was wrong in law. Further, those actions (said to evidence her agreement to the surrender) could not evidence such agreement as they preceded the purported surrender.

Accordingly, as the joint tenancy continued, on the death of Mrs Hussain in 2020, Mr Kazam succeeded to the tenancy by survivorship. This meant that:-

1. There were no succession rights available to Mr Rahimi (as Mr Kazam was the successor) and

2. As Mr Kazam was not living at the property at the time of Mrs Hussain’s death, the tenancy was no longer a secure tenancy and could be brought to an end by the landlord’s Notice to Quit.

Conclusion

Whilst this case concerned a local authority tenancy and the rules surrounding succession, it serves as a useful reminder of how not to deal with joint tenancies generally, including ASTs, so that any subsequent possession notices and claims are correctly addressed, whether that be to both joint tenants or a sole tenant (where there has been an effective surrender and re-grant of the tenancy).

Whilst the case does not exclude the possibility of a surrender of a joint tenancy and a re-grant to a remaining sole tenancy happening by operation of law (e.g. where not done by deed and signed by both parties), it is ill-advised to try to rely on such arguments, particularly in light of the decision and observations made by the High Court in this case. Doing so could see complex and costly litigation in the future, for example, when it comes to trying to end the tenancy.

Therefore, faced with a request to “remove” a joint tenant from the tenancy, a landlord should consider carefully whether this is something they are willing to agree to, given the complications this could create. Where the landlord is happy for the remaining tenant to take sole responsibility for the AST, this should always be properly documented with a deed of surrender signed by both joint tenants to end the joint tenancy, and a whole new tenancy being signed with immediate effect to the remaining tenant.  Alternatively, the departing tenant can end the joint tenancy by serving a valid Notice to Quit, with a new tenancy being granted by the landlord in writing to the remaining tenant following expiry of that notice. Otherwise, the tenancy will and should continue as a joint tenancy even if one of the joint tenants vacates and asks to be removed from the AST, and the advice set out in our February 2019 Legal Update should be followed.

There will of course be other considerations where a landlord agrees to surrender and re-grant a tenancy, such as how the deposit is to be dealt with in these circumstances as well as the landlord’s compliance with other statutory requirements (including, for example, the requirements for the gas safety certificate for the property, the EPC and How to Rent Guide to be given to the tenant). Therefore, specialist advice should be taken before agreeing to any surrender/re-grant of a tenancy, to ensure you do not fall foul of these rules. A failure to comply could make ending the AST more difficult at a later date (for more information, see here).

If you have any questions or would like any further information on this week’s Legal Update, please contact a member of the team on 01435 897297 or info@kdllaw.com.

Disclaimer

This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above.  The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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