When are you entitled to succeed to a secure tenancy?
Facts
The Respondent council (“the Council”) granted the Appellant’s grandmother (“the Appellant’s Grandmother”) and her husband (“the Grandmother’s Husband”) a joint tenancy (“the Tenancy”) of a flat (“the Flat”).
The Tenancy was reduced to writing.
It included the following introduction: ‘If you have signed this agreement with someone else like your husband, wife or partner, you are a joint tenant. In joint tenancies each tenant is jointly and individually responsible for all the conditions in part 2 of this agreement. This means that if one tenant leaves the home the other tenant must still keep to these conditions.’
One clause confirmed that: ‘If you have a joint tenancy, each joint tenant is responsible for paying the rent, other charges and any rent owed. Even if one joint tenant leaves, both tenants will still be responsible for the full weekly charges for the property and any rent already owed.’
The Tenancy was, or became, secure.
In 2011, the Grandmother’s Husband left the Flat. Thereafter, rent was paid by the Appellant’s Grandmother alone. No rent was demanded from the Grandmother’s Husband.
In 2017, the Appellant arrived in the UK and stated living with the Appellant’s Grandmother.
In 2020, the Appellant’s Grandmother died. The Appellant resided with the Appellant’s Grandmother for at least 12 months before the latter passed away.
In 2021, the Council served a notice to quit addressed to the Grandmother’s Husband (“the Notice to Quit”). This was on the basis that he succeeded to the Tenancy by right of survivorship, but, as he was no longer living in the Flat, the Tenancy ceased to be secure.
Thereafter, the Council issued possession proceedings. The Appellant defended on the basis that he was entitled to succeed to the (secure) Tenancy.
Law
Generally, a tenancy is secure when the landlord condition and the tenant condition are satisfied. The later requires an individual to occupy the dwelling-house as his only or principal home, or, where there is a joint tenancy, each tenant is an individual and at least one of them is in occupation as their only or principal home.
In general, a secure tenancy is incapable of assignment.
The “one succession rule” is that an individual may succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant’s death, and, either: a) he is the tenant’s spouse or civil partner; or b) he is another member of the tenant’s family, and has resided with the tenant throughout the period of 12 months ending with the tenant’s death. The exception is that, in either case, the tenant was himself a “successor”.
A tenant is a “successor” if: a) the tenancy vested in him by way of succession to a periodic tenancy; b) he was a joint tenant and has become the sole tenant; or c) he became the tenant on the tenancy being vested in him due to the death of the previous tenant.
Possible outcomes
If there was a surrender and regrant, amounting to the grant of a fresh tenancy to the Appellant’s Grandmother alone, succession would be available to the Appellant.
Otherwise, if the joint tenancy continued, it would have vested by right of survivorship in the Grandmother’s Husband, and, because the latter did not occupy the Flat as his home, the Tenancy would at that point have ceased to be secure, so that the Council validly terminated it by the Notice to Quit.
First instance
In the county court, it was held that the Appellant’s Grandmother was the sole tenant under a tenancy granted to her alone by the Council by way of implied surrender and regrant, following the Grandmother’s Husband leaving the property.
First appeal
In the High Court, the Council’s appeal was allowed.
It was held that there had been no surrender and regrant.
The Appellant faced a “high evidential threshold”. The acts by the Appellant’s Grandmother that were alleged to constitute her agreement to the Grandmother’s Husband’s surrender could not constitute such an agreement because they preceded the alleged act of surrender.
Therefore, the Council did not grant a fresh tenancy to the Appellant’s Grandmother.
Second appeal
Lewison LJ (with whom Newey LJ agreed) gave the leading judgment.
The Appellant had to prove that there was an arrangement to which the Council, the Appellant’s Grandmother and the Grandmother’s Husband were parties, and that it was inconsistent with the continued existence of the joint tenancy.
The conduct must also be “unequivocal”. It need not necessarily be a single act. Individually equivocal acts, however, may be collectively sufficient.
Provided that any new tenancy granted by the Council to the Appellant’s Grandmother had at least the consent of the Grandmother’s Husband, the grant of that new tenancy itself could be sufficient to evidence unequivocal conduct inconsistent with the continued existence of the joint tenancy.
It was common ground, however, that there must be a change of possession: a) where a new tenancy had been granted to someone other than the original tenant; and b) where a new tenancy had been granted to one of two joint tenants.
A “change of possession” need not be a change of “physical” possession, which is, or may be, different to “legal” possession. The following examples suffice.
First, where there is a change from occupation as tenant to occupation as a service occupier without possession. Secondly, where there is a change from possession as sole tenant to joint possession as one of joint tenants. Thirdly, where there is a change from joint to sole possession.
If the Council granted a new tenancy to the Appellant’s Grandmother, either at the Grandmother’s Husband’s request, or with his consent, that would be unequivocal conduct.
The “real question” was therefore whether the Council granted a new, sole tenancy to the Appellant’s Grandmother with the Grandmother’s Husband’s consent.
Neither the court at first instance, nor the court on first appeal, made a finding to this effect.
There was nothing between the Council and the Appellant’s Grandmother that was inconsistent with the continuation of the joint tenancy.
Despite the departure of the Grandmother’s Husband, the Appellant’s Grandmother remained liable for the rent. This was clear from the (clause of the) Tenancy (set out above). This was a “very strong pointer against the conclusion that a new sole tenancy was created.”
Further, there was no evidence that the Grandmother’s Husband relinquished legal possession: “Neither of the letters written on his behalf mentioned the joint tenancy. He made no request for that tenancy to be transferred to [the Appellant’s Grandmother] alone. There was no evidence that he returned the keys. The mere fact that he left the property (even at [the Appellant’s Grandmother’s] request) does not support the conclusion that he relinquished joint legal possession. … Nor is there any evidence that he consented to the grant of a new tenancy to [the Appellant’s Grandmother] alone. Indeed, there is no evidence that he even knew about any arrangement between [the Council] and [the Appellant’s Grandmother]. … In addition, of particular relevance in relation to [the Appellant’s Grandmother] is the trial judge’s acceptance that there was no evidence that she ever agreed to be solely responsible for the rent.”
Although at first instance, the court placed considerable reliance on the fact that the Council removed the Grandmother’s Husband from the rent account, there was no evidence that the Appellant’s Grandmother, or the Grandmother’s Husband, were aware of these internal records.
Moreover, “since both joint tenants were severally liable for the rent, those records are equally consistent with the continuation of the joint tenancy. Where joint tenants are severally liable to pay the rent, the landlord may choose whether to demand rent from one of them or from both of them.”
Disposal
There was no proper basis to infer that the Council granted a new, sole tenancy to the Appellant’s Grandmother. The latter remained a joint tenant until her passing. At that point, the Tenancy vested in the Grandmother’s Husband by right of survivorship.
The Notice to Quit validly terminated the Tenancy.
The Appellant was not entitled to succeed.
The appeal was dismissed.
Dissent
Macur LJ agreed as to the relevant law and principal issue.
As to the conclusion, however, she dissented and would therefore have allowed the appeal.
Written by Dominic Bright