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London Borough of Tower Hamlets v Ayinde: CA 1994 - swarb.co.uk
References: (1994) 26 HLR 631
Coram: Nourse LJ
Ratio: The tenant had gone out of possession, moving permanently back to Nigeria and at the same time writing to the landlord to say that he and his family had moved and had agreed that the defendant (a cousin who had lived with him prior to his return to Nigeria) should take over the tenancy.
Held: There had been an unequivocal surrender by operation of law. Thereafter, by various actions and steps of apparent acceptance of the resident cousin as tenant, the landlord was deemed both to have granted a new tenancy and to have accepted the former tenant’s offer of surrender. Nourse LJ: ‘The judge would have concluded that a new tenancy had been granted from the following facts: first, the plaintiffs had had express notice that the [former tenant] had permanently vacated the flat in the summer of 1985 and had expressed an unequivocal intention to terminate the tenancy; secondly, the plaintiffs well knew that the defendant and her family had exclusive occupation of the flat from that date; thirdly, the plaintiffs knew that the defendant and her husband were paying rent on their own behalf from that date.
Mr Rutledge submits that there was never an unequivocal offer by the (former tenant) to surrender their tenancy to the plaintiffs; only an offer to assign it to (the defendants) which, by section 91 of the 1985 Act, was prohibited. I rejected that submission. I agree with Mr. Salter, for the defendant, that it is a distinction without a difference. In their letters of June 17 and July 21, 1985 the (former tenants) had made it very clear, to the plaintiffs as well as to the defendants, first, that they did not want their tenancy to continue; secondly, that they wanted the (defendants) to be the tenants. They cannot be credited with a lawyer’s intention to use a term like ‘transfer’ as a term of art. Section 91 does not assist the plaintiffs. Indeed, if an assignment or transfer was prohibited, all the more reason for treating the offer as an offer to surrender.’ There was a deemed acceptance of the surrender of the former tenant by the various acts which had been apt also to create the new tenancy.
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