Surrender of Joint Tenancy: The test utilised when considering a claim for surrender of a joint tenancy by operation of law (City of Westminster Council v Kazam – 2023)

The High Court assesses whether a joint tenancy had been surrendered by tenants in circumstances where one party had left the property but had not agreed to any surrender, nor acted in a way which accepted the end of the tenancy.

The background

In City of Westminster Council v Kazam [2023], a joint secure tenancy of a residential property was granted in 2005 by the local authority to a husband and wife, Mr Kazam and Mrs Hussain. Mr Kazam moved out of the property in 2011 and requested new social housing, and the local authority subsequently removed him from the rent account.

Mrs Hussain died in 2020, and the couple’s grandson made an application under s.87 of the Housing Act 1985 to succeed the tenancy. The local authority rejected the application, stating that Mr Kazam remained a joint tenant and, by survivorship, became the property’s sole tenant. The local authority began possession proceedings, and a notice to quit was served on Mr Kazam.

The grandson claimed that the joint tenancy had been surrendered in 2011 by Mr Kazam when he left the property and requested new accommodation. Mrs Hussain therefore occupied under a sole tenancy and the grandson claimed that he succeeded to the tenancy on her death.

At first instance, the court found that by giving up possession and requesting new accommodation, Mr Kazam had surrendered the joint tenancy. Further, the court held that Mrs Hussain had excluded Mr Kazam from the property and therefore had acted in such a way as to terminate the joint tenancy. The local authority appealed to the High Court.

The decision

The High Court found in favour of the local authority, granting an order for possession.

The court’s test stated that the threshold must be met in order to find that a joint tenancy is surrendered by operation of law. In this case, the threshold was not met by virtue of Mr Kazam’s actions. He had not acted in a way which accepted that the tenancy had come to an end, but equally had not agreed to any surrender.

In its decision, the court held that in order to make a finding of a surrender by operation of law where no agreement by both tenants has been expressly made:

• The actions of both tenants must unequivocally amount to an acceptance that the joint tenancy has ended;
• In circumstances where a joint tenant leaves the property while the other remains in possession, allowing the joint tenancy to be ended by anything less than unequivocal conduct of the tenants could damage the interests of the tenant remaining in the property.

The court found that Mr Kazam had not done all he could to give up possession of the property such that the tenancy was surrendered by operation of law; leaving the property and requesting new accommodation while Mrs Hussain remained in occupation were equivocal acts. Excluding Mr Kazam from the property did not result in an unequivocal agreement from Mrs Hussain to the surrender of the tenancy.

As a result, the joint tenancy remained in place and the couple’s grandson was unable to claim possession by way of survivorship from Mrs Hussain’s sole tenancy. The local authority was entitled to an order for possession.

Advice and action for landlords

In this technical decision, the High Court considers the test to be applied in order for a surrender by operation of law to take effect.

Where the parties have not engaged in any positive act which unequivocally amounted to an agreement to surrender the tenancy, the test’s high threshold cannot be met. One party leaving the property and requesting new accommodation was not sufficient to surrender the joint tenancy where the other party remained in occupation, even where the remaining party excluded the other from the property after they had left.