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An important decision concerning the position where a surviving joint tenant had left the property some years previously, whether an implied surrender and re-grant had occurred, and whether a lodging grandchild could succeed the tenancy. 

Mrs Hussain was initially granted a joint tenancy with her husband, Mr Kazam. At the time of Mrs Hussain's death, Mr Kazam had left the property. It was initially held by HHJ Hellman that Mrs Hussain was a sole tenant under the tenancy granted by the Respondent by way of an implied surrender and regrant. However, this decision was later appealed.

Mr Kazam and Mrs Hussain were granted a joint tenancy on 9 February 2009. This tenancy was, or became, a secure tenancy. 

In 2011, solicitors for Mr Kazam advised the housing benefit department that he had left the property and he was awaiting to be re-housed by the Local Authority. 

The Respondent had recorded this and it was noted that Mrs Hussain was paying rent from July 2011 onwards. 

The Appellant in these proceedings was a refugee and Mrs Hussain had supported his application for a Visa. Mrs Hussain had stated in her witness statement in support of this application that she had a secure tenancy and that the agreement allows for a lodger to be taken in. She further went on to say she was agreeable to the Appellant residing with her. 

The Appellant had come to the UK and resided with Mrs Hussain, his Grandmother, until her death on 10 July 2020. 

The Respondent proceeded to serve a Notice to Quit on Mr Kazam on the basis that he had succeeded to the tenancy but, as he was no longer living at the property, he had ceased to be a secure tenant. Possession proceedings were issued shortly thereafter. The Appellant sought to appeal on the basis that he was entitled to succeed the secure tenancy, rather than Mr Kazam. 

The legislation states that a tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the landlord condition and the tenant condition are satisfied (Housing Act 1985 section 79 (1)). The tenant condition is that the tenant is an individual and occupies the dwelling-house as his or her only or principal home, or, where the tenancy is a joint tenancy, that each of the tenants is an individual and at least one of them occupies the dwelling-house as his or her only or principal home (Housing Act 1985 section 81).

It was initially held by HHJ Hellman that there had been an implied surrender and regrant and that Mr Kazam had given up the secure tenancy by moving out and seeking alternative accommodation. In making this finding, he also held that the Appellant had succeeded the tenancy. 

This decision was appealed by the Respondent. On appeal it was held that there had been no surrender and regrant, as the Respondent had not provided Mrs Hussain with a new tenancy. 

On the second appeal, Lewison LJ considered whether Mrs Hussain was granted a new tenancy with Mr Kazam's consent or whether the initial joint tenancy was still continuing. 

It was held that the evidential threshold for a surrender and re-grant had not been met, and that Mr Kazam as the original joint tenant had succeeded the tenancy by survivorship.  Mr Rahimi was not entitled to succeed, and the Respondent Council had acted correctly by serving a Notice to Quit where Mr Kazam had lost his security of tenure.

In making this finding, Lewison LJ made the following observations: 

  • Neither of the tenants would have been aware of the Respondent's internal records;
  • The mere fact Mr Kazam had left the property and looked for alternative accommodation was not sufficient to state that he had relinquished his joint tenancy;
  • There was no evidence to support that Mrs Hussain had been granted a new tenancy; and
  • The Council would have had a duty to re-house Mr Kazam in accordance with homelessness legislation notwithstanding the fact that he still was a joint tenant.

This decision illustrates the evidential bar required to show that a surrender and re-grant of a tenancy has occurred, whilst also illustrating that security of tenure can be lost where the 'tenant condition' is no longer met.