Did you see? You may have missed… Westminster City Council v Kazam & Power v Shah

31 Mar 2023

Westminster City Council v Kazam [2023] 3 WLUK 312, 9 March 2023

Surrender of joint tenancy–unequivocal acts- possession- succession

The facts

Westminster City Council appealed against a decision dismissing its claim for possession against D1 and D2. In 2005, the Council had granted a joint secure tenancy to D1 and his wife (X). Their relationship ended and D1 left the property in 2011. A community project applied to the Council’s homeless unit on D1’s behalf and D1 was rehoused shortly thereafter. Once D1 had been rehoused, the Council’s officer filled out an ‘Amendment to Housing Tenancy Details form’ requesting that D1 be removed from the rent account in respect of the property.

In 2017, D2 moved into the property to live with X, his grandmother. X died in 2020. D1 applied for succession. The Council refused D2’s application and issued a notice to quit on D1, as he was not occupying the property as his primary home.  The Council then issued possession proceedings.

D2 sought a declaration that he had succeeded to the tenancy on the basis that: the original tenancy had been surrendered after D1 left the property and X had been regranted a secure tenancy on a sole basis; the notice to quit was therefore not valid.

The trial judge held that D1 had surrendered the tenancy by unequivocally relinquishing possession, moving out and requesting new accommodation, and that X had unequivocally agreed with D1’s act of surrender by excluding him from the property.

The appeal

Mr Justice Lane allowed the appeal. The fact of the joint tenancy was significant as it meant that the court had to be more cautious about inferring surrender, not less so. It was necessary to assess the totality of the conduct. If a joint tenancy ended solely upon one tenant leaving, there would be repercussions for joint tenant’s rights. The court could not accept equivocal conduct; it had to be unequivocal.

D2’s pleaded defence relied on Council’s internal records, which requested that D1 be removed from the joint tenancy. The judge had correctly looked for evidence that X agreed to the surrender, but D2 could not provide any. D2’s argument that a new tenancy had been created failed as the judge had not made a finding that there was a new tenancy, nor was there any other evidence to support that finding. On the facts of the case, there were therefore no evidence upon which it was open for the judge to find that X had unequivocally concurred with D1’s act of surrender.

Lessons learnt

The case is a reminder that the hallmark of a joint tenancy is that both tenants own the whole of the property and have equal rights to the property. One tenant can therefore not surrender the tenancy unless the other tenant concurs.

Power v Shah [2023] EWCA Civ 239, 7 March 2023

The court of appeal dismissed the appeal. The Court confirmed that the dispute resolution mechanism provided for by s 10 of the Party Wall etc. Act 1996 is only available where a building owner has followed the Act and served a notice on their adjoining neighbour in advance of Party Wall Act works being undertaken. It follows that an adjoining owner is not entitled unilaterally to invoke the Act and its dispute resolution mechanism if no notice has been served. The “no notice, no Act” mantra therefore remains good law.


Lina Mattsson

Call: 2010


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