A tenant or joint tenants can expressly surrender their tenancy by signing a deed of surrender, or through their actions. This is known as an implied surrender or a surrender by operation of law. Surrender by operation of law can occur if the tenant or both joint tenants performs some unequivocal act of surrender, such as returning the keys to the landlord, or removing from the property all signs of occupation, including furniture, belongings, and any family or friends (or animals) who were living with them.

For an implied surrender to occur there must be an unequivocal act of surrender by the tenant or both joint tenant which the landlord needs to accept.

The recent case of City of Westminster Council v Kazam & Anor highlights the complexities that can occur in surrender situations where there are joint tenants.

Background of the case

In 2005, Mr K and Mrs H, who were married, were granted a joint secure tenancy by Westminster Council. In 2011, Mr K had left the property and was later permitted to join the rehousing register and allocated a secure tenancy at a different property.

An internal document was produced by Westminster, detailing the amendments to the tenancy. The note stated the tenancy is to be changed from joint to sole and Mr K is to be removed from the rent account.

In 2017, Mrs H’s grandson, Mr R, moved into the property and remained there until Mrs H’s death in 2020. He applied for discretionary succession but was refused, and a claim for possession was brought.

At first instance, it was found that the joint tenancy had been surrendered by operation of law, and a sole tenancy was granted to Mrs H in 2011, therefore, Mr R succeeded to this tenancy following her death.

Westminster successfully appealed this decision.

The High Court held that Mrs H’s conduct was not sufficient to amount to an unequivocal act incompatible with the joint tenancy continuing, and therefore, there was no surrender by operation of law.

The court stated that at best, Mrs H had agreed to pay the full rent and agreed that Mr K had left. There was also no evidence that Mrs H had given Mr K authority to surrender the tenancy on her behalf and Westminster’s internal note did not amount to a new sole tenancy.

In essence, because there was no surrender, there could have been no re-grant of a sole tenancy. As a result, Mr K had succeeded to the tenancy by survivorship but was not resident there and the tenancy was ended by Westminster’s notice to quit. It followed that Mr R could therefore not succeeded to the tenancy.

What can we learn from this case?

• It is clear one joint tenant leaving a property does not end the joint tenancy.
• Landlords cannot ‘end’ a joint tenancy by removing a tenant’s name and ‘create’ a sole tenancy.
• A surrender, whether by deed or by unequivocal act, must be by both joint tenant’s
• A robust and effective policy and procedure on joint tenancies and what actions can be taken when one party leave may be useful.
• When one joint tenant dies, the remaining joint tenant will succeed, meaning that there can be no second succession.

If you have any questions on surrender, joint tenancies, or succession, please do not hesitate to contact Julia Michalczyk, trainee solicitor within MSB’s Social Housing and Regeneration Team, on juliamichalczyk@msbsolicitors.co.uk.

Law is correct as at 27^th April 2023

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. You are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon as legal advice. No liability is accepted for any error or omission contained herein.