Trinity Housing Barrister Summary of Rahimi v City of Westminster Council [2024]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent Court of Appeal decision of Rahimi v City of Westminster Council [2024] EWCA Civ 73.

This was an appeal by Mr Rahimi concerning whether he was entitled to succeed a secure tenancy of a flat on the death of his grandmother.

The facts

In 2005, Westminster Council granted a joint tenancy for a flat to Mr Rahimi’s grandparents, Mr Kazam and Mrs Hussain, which became a secure tenancy.

In 2011 Mr Kazam left the property, and he thereafter made a homelessness application. In 2012 he was rehoused although it was unclear whether this was through his homeless application or another channel. Westminster’s internal file was amended to remove him from the rent account and Mrs Hussain was recorded as the sole tenant; however, the start date of the tenancy remained unchanged. There was no evidence either Mr Kazam or Mrs Hussain were aware of these changes to the internal records. After 2011 the rent was paid by Mrs Hussain alone.

In 2017, Mrs Hussain supported Mr Rahimi for a visa application. In a witness statement, she enclosed a copy of the 2005 tenancy agreement confirming her secure tenancy and that Mr Kazam no longer lived at the property. Mr Rahimi lived in the property with Mrs Hussain from 2017 until her death in July 2020.

In 2021 Westminster served notice to quit to Mr Kazam. The notice was served on the basis that he had succeeded to the tenancy by right of survivorship, but as he was no longer living in the flat the tenancy had ceased to be a secure tenancy. Westminster thereafter issued proceedings for possession. Mr Rahimi defended those proceedings on the basis that he was entitled to succeed to the secure tenancy as a family member under section 87(b) of the Housing Act 1985. The evidence of the witness for Westminster was that the original tenancy was not terminated and subsisted at the time of Mrs Hussain’s death.

At first instance, the trial judge held that there had been an implied surrender and regrant. On that basis, Mr Rahimi had succeeded to the tenancy. On appeal, Lane J reversed that decision.

Decision of the Court of Appeal

The court by a majority (Macur LJ dissenting) dismissed the appeal.

Lewison LJ, giving the leading judgment, considered that the key question was whether or not Westminster granted a new sole tenancy to Mrs Hussain with Mr Kazam’s consent or, conversely, whether the 2005 joint tenancy had continued.

It was considered that there was insufficient evidence to find that a fresh sole tenancy had been granted:

• No explicit finding to that effect had been at first instance and no explanation was given on what basis the trial judge reached such a finding implicitly.
• The communication between Westminster and Mr Kazam and Mrs Hussain was not inconsistent with the continuation of the joint tenancy.
• There was no clear evidence, whether by notice to quit or request for the tenancy to be transferred, that a new tenancy had been granted to Mrs Hussain.
• There was no evidence that Mr Kazam had relinquished legal possession or been excluded from the property; the simple fact he had left was not sufficient. They were both jointly and severally liable to pay the rent under the 2005 tenancy agreement.
• If Mr Kazam was rehoused on the basis that he was homeless, the duty to rehouse him could have arisen even if he was a joint owner of alternative social housing.
• There was no evidence Mr Kazam or Mrs Hussain were aware of the contents of Westminster’s internal records.

In summary, Lewison LJ, with whom Newey LJ agreed, considered that there was no proper basis to infer that Westminster had granted a sole tenancy to Mrs Hussain. Accordingly, she remained a joint tenant until her death, and at that point, the joint tenancy vested in Mr Kazam by right of survivorship. Westminster validly terminated it, and Mr Rahimi was not entitled to succeed to it.

The appeal was accordingly dismissed.