Surrender of lease - husband remaining in occupation after wife holding sole tenancy leaving - transfer of wife's rent book to new flat and assumption of liability constituting surrender of old tenancy

Ealing Family Housing Association Ltd v McKenzi: CA (Lords Justice Mantell and Clarke and Mr Justice Rimer): 10 October 2002

The defendant's wife, the weekly tenant of a flat belonging to the claimant landlord, separated from her husband and left the flat.

On 11 April 2000, she orally agreed with the landlord to surrender the flat on 17 April in consideration of the grant of the tenancy of a new flat commencing on that date, and she was subsequently served with a notice to quit on that date and signed an agreement to that effect.

The defendant continued to occupy the old flat by virtue of his right under section 30 of the Family Law Act 1996.

On 17 April, although the wife could not deliver possession of the flat to the claimant, the claimant transferred the wife's rent book from the old flat to the new flat.

The landlord claimed possession of the flat from the defendant.

The judge held that there was a surrender on 11 or 17 April and granted an order for possession.

The defendant appealed.

Matthew Hutchings (instructed by Brian McKenna & Co, Hounslow) for the defendant; Alexandra Stagi (instructed by Prince Evans, Ealing) for the landlord.

Held, dismissing the appeal, that the agreement of 11 April was not in writing as required by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and, therefore, did not constitute an express surrender of the tenancy on 11 April; that no surrender could be implied by law as at that date since the subsequent notice to quit to terminate the tenancy on 17 April confirmed that the wife was still the tenant on 11 April; but that the surrender came into effect on 17 April when the landlord transferred the rent book and the wife assumed an obligation in respect of the new flat, since both parties had conducted themselves on the basis that the old tenancy had come to an end.