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One of the main ways that a residential tenancy can be brought to an end apart from a Possession Order is by way of surrender.
This takes two forms; express surrender where the parties expressly agree to end a tenancy, and implied surrender where agreement to end a tenancy is inferred by the parties' conduct.
Although the latter form of surrender is more common where residential tenancies are concerned, it can cause problems when the tenant says that they never intended to surrender- or abandon- their tenancy.
Whilst this does not happen that often in practice, the case of Southwark LBC v Ibidun( 2017) shows that when it does the Court will not lightly treat the tenancy as having been ended.
In legal terms, the key issue is that for a secure tenancy - or an assured tenancy - to be secure, or assured, the tenant must be an individual who occupied their dwelling house as their only or principal home.
Ms Ibidun was a secure tenant of a studio flat let by Southwark LBC.
Southwark reached the view that she was not living at the property as she was occupying another property, so it served notice to quit on her and issued possession proceedings.
At first instance, the trial Judge decided that although she was occupying two properties and allowed other people to live in the studio flat, it had not been a permanent arrangement and she still stayed at the property at weekends and used it as her address for correspondence.
He therefore held that she still occupied the property as her home.
The Council appealed on several grounds, including the fact that Ms Ibidun had lied about a claim for council tax, together with new evidence that the property had been advertised on Gumtree.
The High Court dismissed their appeal on the basis that the trial Judge had heard all the evidence and was entitled to reach the findings of fact that he did in reaching his decision, and the new evidence was not sufficient to order a re-trial.
Although this was probably the right decision on the facts, it is difficult not face some sympathy for a Council facing huge demand for social housing when faced with evidence that the tenant was living elsewhere and that someone else was occupying her property.
What it also shows however is the general approach of the Courts who will not lightly infer that a tenant has given up a precious property right - ie a tenancy - and that social landlords need clear evidence of this.
The clearest evidence will normally be an express agreement with the tenant in writing and/or notice to quit served by the tenant, and otherwise social landlords need to treat a tenancy as being abandoned with care.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.
15 January 2018
by Kane Kirkbride