Landlord and tenant — Expenditure by tenants on repairs and improvements to property — Claim by tenants to interest in property as a result of expenditure under doctrine of proprietary estoppel — Appeal from decision of recorder in county court rejecting appellants’ claim — Appellants were tenants of part of a house but subsequently, after other occupants left, occupied the whole house — From that time onwards appellants expended substantial sums of money in making repairs and improvements to the property — Four ingredients of proprietary estoppel, as stated in Snell’s Principles of Equity, recalled — First, claimant must have incurred expenditure or otherwise acted to his detriment — Second, claimant must have acted in the belief that he either owned or would obtain a sufficient interest in the property to justify the expenditure — Third, claimant’s belief must have been encouraged by the landowner — Fourth, there must be no bar to the equity, eg contravention of some statute — The difficulty in the present case was in regard to the fulfilment of the second and third requirements — As regards the second, the appellants failed to show that they had incurred the expenditure in the belief that they would obtain an interest in the whole property sufficient to justify the expenditure — As regards the third requirement, even if the appellants had acted in that belief, there was no evidence that the owner of the house had done anything to encourage it — Thus the appellants’ claim to acquire a proprietary interest in the house failed — The court also rejected a number of minor matters raised in the notice of appeal, in regard to an application for adjournment, witness summonses, documents alleged to show the respondent’s knowledge of work carried out by the appellants, and a complaint about procedure — Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by Keith Anderson Ewens and his wife, Joyce Hyacinth Ewens, from a
decision of Mr Recorder Russell, at Wandsworth County Court, rejecting a claim
by the appellants, defendants in possession proceedings, to have acquired an
interest in a house at 101 Tooting Bec Road, Upper Tooting, London SW 17, on
the ground of proprietary estoppel resulting from expenditure on repairs and
improvements to the house incurred by the appellants. The respondent, plaintiff
below, was Mrs Katherine Anna Antonetta Brinnand.
One of the
appellants, Mrs Ewens, appeared in person; S H Brilliant (instructed by Graham
Harvey) represented the respondent.
Giving
judgment, NOURSE LJ said: This is an appeal from a decision of Mr Recorder
Russell given in the Wandsworth County Court on September 11 1986. Since 1965
the first appellant, Mrs Joyce Hyacinth Ewens, has been the tenant of the
ground floor and the back bedroom on the first floor of 101 Tooting Bec Road,
Upper Tooting, London SW17. In about 1972 she married her present husband, Mr
Keith Anderson Ewens, the second appellant. Until 1978 or 1979 the upper
portion of the property was occupied by others, but at that time the last
occupant, a Mr Sexton, left and Mr and Mrs Ewens and their family moved into
occupation of the whole house.
There is no
doubt that from that time onwards Mr and Mrs Ewens have expended substantial
sums of money in making repairs and improvements to the property. They claim
that they have spent some £30,000 to that end. The amount is not important in
these proceedings because it is accepted on behalf of the landlord, Mrs
Katherine Anna Antonetta Brinnand — the respondent to this appeal — that
repairs and certainly some improvements have been done.
Mr and Mrs
Ewens’ claim, correctly expressed, is for an interest in the remainder of the
property under the doctrine of proprietary estoppel. The learned recorder heard
evidence from Mrs Brinnand, who lives in India, on July 22 1985 and he heard
the evidence of Mr and Mrs Ewens at the main trial which took place on
September 10 and 11 1986. As a result he made certain findings of fact, which
(for reasons which I will develop) appear clearly to me, if they are sustained,
to support his decision against Mr and Mrs Ewens, to the effect that they have
no interest in the remainder of the property under the doctrine of proprietary
estoppel.
On July 22
1985, when Mrs Brinnand gave her evidence, Mr and Mrs Ewens were represented by
counsel, who cross-examined Mrs Brinnand, although Mrs Ewens has told us this
morning that she was not altogether satisfied with the questions which were
asked. When Mr and Mrs Ewens gave evidence at the main trial they, of course,
were cross-examined by counsel on behalf of Mrs Brinnand.
The four
ingredients which are necessary to constitute a proprietary estoppel can be
taken from Snell’s Principles of Equity, 28th ed at pp 559 and
following. They are these. First, the claimant must show that he has incurred
expenditure or otherwise prejudiced himself or acted to his detriment. There
can be no doubt that if all other things are equal that requirement is
satisfied in the present case. Second, the acting in that way must have taken
place in the belief either that the claimant owned a sufficient interest in the
property to justify the expenditure or that he would obtain such an interest.
Third, the claimant’s belief must have been encouraged by the owner of the land
or others acting on his behalf. It is the second and third requirements which
are in issue in the present case and I will return to them presently. The
fourth requirement is that there should be no bar to the equity; for example,
that it should in some way contravene some statute. That is not a material
consideration in the present case.
I return to
the second and third requirements. As to the second requirement, I can read a
passage in the learned recorder’s judgment which starts in the middle of the
third page, p 203 of our bundles.
I find that
sometime in 1978 and before March 1979 the Ewens were occupying the whole
house. The main reason for so doing was to enable the local authority to
exercise their statutory powers to enforce the landlady, Mrs Brinnand, to
repair the house. It is clear that Mrs Brinnand did not comply. Workmen were
sent in to do the work. The council registered its charge in December 1981.
I interpose
here to say that it appears that the works cost something over £6,000.
The judgment
continues:
But I should
now say that Mr and Mrs Ewens have said that a lot of the work was done so
badly that it had to be done all over again by Mr and Mrs Ewens. That may be a
matter for which they have a case for complaint and means that much more work
was done and more money expended by Mr Ewens. I find that it was done to make
the home more comfortable. The evidence falls short of showing that they did
the work in reliance on the applicant granting them a tenancy. I am not
satisfied they acted in the belief that they would gain some right to occupy
the whole house. They believed that either the bank or the local authority
would take steps to see them right and at some time or other the bank might
exercise their power of sale. I am not satisfied that Mrs Brinnand had any
inkling of what the bank was doing or saying to Mr and Mrs Ewens about it.
Their prime reason for doing such work and spending the money was because it
was their home and hoped it might be possible to acquire it as owners or as
tenants.
It is clear
from what we have seen and heard today that there was certainly evidence before
the learned recorder on which those findings could be made. In the
circumstances it seems to me that Mr and Mrs Ewens have failed to satisfy the
second requirement. In other words, they have failed to show that they acted in
the belief that they would obtain an interest in the property sufficient to
justify the expenditure which they made. That failure is by itself enough to
defeat their claim.
Apart from the
matters expressly mentioned by the learned recorder in the passage I have just
quoted, we have been shown material this morning by Mr Brilliant, who appears
for Mrs Brinnand, which shows that one of the reasons why the Ewens and their
family moved upstairs was so that they could require the local authority to
make the repairs which they did in fact make.
I turn then to
the third requirement. As to that, the penultimate sentence in the passage I
have just quoted is material, but the main passage in the judgment which deals
with that matter is to be found on the following page. It reads as follows:
I am satisfied
on the evidence given by Mrs Brinnand that she at no time granted a tenancy
expressly or by implication of the whole house. I am satisfied that she knew at
the earliest by 1978 to 1979 that the respondents were living in the whole
house. She never received, asked or accepted any rent for the whole house.
Although she may have realised that money might be spent by Mr and Mrs Ewens by
carrying out repairs, I am quite satisfied that she did not know or have any
reason to know that such work was being done with the view that a tenancy of
the whole house was being granted by her.
Again it is
clear that there was ample evidence before the learned recorder upon which
those findings could be made. It necessarily follows from those findings that
any belief which the Ewens may have had that they were acquiring an interest in
the property (for this purpose I assume that they in fact had one) could not
have been encouraged by Mrs Brinnand or anyone acting on her behalf. You cannot
encourage a belief of which you do not have any knowledge. In the circumstances
it seems to me to be clear that the appeal of Mr and Mrs Ewens must fail on
that ground also.
That is the
substantial part of the appeal. Before turning to a number of minor matters I
would only add this. Mrs Ewens, who has appeared here on her own today, since
unfortunately Mr Ewens is not well, had handed in to us a copy of the statement
of claim which was served in early March of this year in another action
commenced by Mr and Mrs Ewens against Mrs Brinnand in the Queen’s Bench
Division, claiming damages in respect of their expenditure on the property for
which they have not been reimbursed. That, of course, is a quite separate
claim. It is a money claim and its success will depend on considerations which
are different from those on which the present appeal depends. It is not for us
to express any opinion — indeed we could not — as to whether that action will
succeed or not, but all I wish to say is that nothing which we decide today
will necessarily impede the success of that action. The only matter we are
concerned with today is a claim for a proprietary interest in the property.
That claim fails.
I now turn to
the other minor matters raised in Mr and Mrs Ewens’ notice of appeal. First,
complaint was made on the ground that the learned recorder refused to grant Mr
and Mrs Ewens an adjournment in September 1986. That was essentially a matter
within his discretion and we have seen and heard nothing which, in my view,
would justify us in taking the view that he exercised his discretion in that
respect in a manner which was plainly wrong.
The same can
be said of the second ground of appeal, which is that the learned recorder
erred in refusing to grant Mr and Mrs Ewens witness summonses in respect of the
proper officers of the London Borough of Wandsworth and in respect of
disclosure of documents.
The third
ground of appeal is that the learned recorder failed to give sufficient weight
or any weight to documentary evidence provided by Lloyds Bank, in particular to
two letters written by Mr Smith of that bank to Mrs Brinnand in October 1979.
Those letters are claimed to establish or tend to establish that Mrs Brinnand
did in fact have knowledge of what Mr and Mrs Ewens were doing to the property
in the way of repairs and so forth. We have seen those letters this morning. We
have looked at a number of other letters and documents to which Mrs Ewens has
referred us. All I need say is that I was unable to detect anything in any of
them which could help to establish the necessary knowledge on the part of Mrs
Brinnand in order to found the encouragement required for the success of the
claim.
We asked Mrs
Ewens to direct our attention to any document which might contain evidence of
that nature, and she referred us to other documents as well, but none of them
seem to me to carry the matter any further, or at any rate to prove of any
advantage to her and her husband.
The fourth
ground of appeal is that the learned recorder ought to have dimissed the
application on the ground that it was not an action commenced in the usual way
but proceedings for summary possession under Ord 26 of the County Court Rules.
Again that was something entirely within the learned recorder’s discretion. If
I may respectfully say so, I think that he was entirely right to take the
course that he did. The matter was, in effect, fully pleaded in the affidavits
which where put in on both sides before the matter came to trial.
The fifth
ground of appeal is that the recorder erred in ordering the respondents to give
up possession of the bathroom of the premises on the upper floor, use of which
it is claimed was included in the original tenancy. That seems to me to fail on
the simple ground that what is now the bathroom on the upper floor was never
included in the original tenancy as the learned recorder found it to be and as
I have
only bathroom in the house. She says that it has only ever been the only proper
bathroom. That may be so and I understand the inconvenience which would be
caused, but that is not a ground for including a room in the tenancy which
never was there in the first place.
The sixth
ground of appeal was the substantial ground which I have already dealt with and
the seventh and eighth grounds of appeal are merely subsidiary.
For the
reasons which I have endeavoured to express I would dismiss this appeal.
SIR ROUALEYN
CUMMING-BRUCE agreed and did not add anything.
The action
was dismissed with costs, the order not to be enforced without leave in the
case of costs accruing before revocation of legal aid certificate. Possession
order not to be enforced for three months.
