Licence — Appeal by occupier of flat against possession order — Licence to occupy granted by one of two co-owners of flat — Notice to terminate given by other co-owner without the knowledge or consent of the former — Questions as to nature of occupier’s interest and as to effectiveness of termination — Suggestion of existence of trust conferring an equitable right upon occupier by reason of certain financial contributions rejected — Occupier held to have no proprietary interest, but only a simple licence to occupy — Whether, on analogy of Doe d Aslin v Summersett and later cases concerning notices to quit given by one only of two or more joint owners, one co-owner could terminate a licence without concurrence of other co-owner or co-owners — Held, dismissing appeal from possession order granted by county court judge, that one co-owner can do so and that the plaintiff in the present case had effectively done so
This was an
appeal by the occupier of a first-floor flat at 113 Inglelow Road, London SW8,
against a possession order made by Judge White at Wandsworth County Court. The
plaintiff in the court below, respondent to this appeal, was Miss Glory Annen
and the defendant below, the present appellant, was Paul Rattee.
Colin
Challenger (instructed by Levinson Gray) appeared on behalf of the appellant;
David Neuberger (instructed by Shilling Gleadon & Long) represented the
respondent.
Giving
judgment, STEPHENSON LJ said: This is a defendant’s appeal against an order for
possession made by His Honour Judge White in the Wandsworth County Court on
December 1 1983. There was a counterclaim by the defendant for a declaration
that he had an interest in the property; and by implication the learned judge
ordered, what ought to have been embodied expressly in his order but is conceded,
that that counterclaim was dismissed.
At the start
of his judgment, which runs to some 37 foolscap pages, the learned judge said
that this was a most unusual and difficult case to try. Mr Challenger, who
appeared for the defendant before the judge and who has presented his case in
this court in an admirable manner, has told us that the hearing was spread over
nine days between July and December; the learned judge was obviously right in
describing the case as he did.
The premises
which were the subject of the judge’s order were a first-floor flat at 113
Inglelow Road, London SW8. Three parties, not two, are involved. First there is
the plaintiff, Miss Annen, a Canadian; second there is the defendant, Mr
Rattee, and third there is a Mr Paul Wagar, also a Canadian, who was in very
close relationship, first with the plaintiff and then with the defendant; the
plaintiff’s relationship with her fellow Canadian had extended over something
like 12 years. All those three persons were drama students and I think also
students of singing.
The full story
of their relationships and their connection with this flat is set out with
admirable clarity in the very full judgment of the learned judge. As far as
these proceedings are concerned the story starts with the purchase in September
1977 of a long lease of this flat by the plaintiff and Mr Wagar. It was bought
with the assistance of a 100% mortgage from the Greater London Council for the
purpose, potentially at any rate, of becoming the matrimonial home of the
plaintiff and Mr Wagar. In December 1978 the plaintiff and Mr Wagar bought the
freehold reversion of the flat, a further advance having been provided by the
Greater London Council. The plaintiff herself has never lived at the flat; both
Mr Wagar and the defendant have. It was at about the time of the purchase of
the long lease in September 1977 that Mr Wagar granted the defendant an oral
licence to occupy the flat, and on and off during the following years the
defendant made use of that licence and occupied the flat, sharing it with, I
suspect, countless other people in the same walk of life and of the same age as
the parties. Mr Wagar was one of those who shared the flat with him from time
to time until July 1979.
After July
1979, when Mr Wagar returned to Canada, as did the plaintiff, the defendant
occupied the flat on a full-time basis. But he occupied it without the
knowledge or the consent of the plaintiff until the month of January 1980. In
January 1980 the plaintiff found that the defendant was living in the flat. She
objected; she made efforts to get him out; there was even an effort for her to
occupy the flat herself and displace him; and after considerable delay, by a
letter of October 9 1981, she purported to terminate the licence which he had
to occupy the premises, and that termination, or purported termination, was
without the knowledge or consent of Mr Wagar. There is no dispute that that
notice was reasonable and would have validly terminated the licence given by Mr
Wagar to the defendant, assuming, as the learned judge did assume, that one of
two co-owners could grant a licence to occupy the premises, if it is within the
power of one of two co-owners to revoke a licence without the authority or
consent of the other co-owner. The defendant did not regard the notice as
terminating his licence to occupy the flat; hence these proceedings.
I turn now to
the amended particulars of claim, which allege some of the matters to which I
have already referred — the licence granted by Mr Wagar and the termination of
the licence in October 1981, and that since the termination of the licence the
defendant was continuing to occupy the flat as a trespasser. The amended
defence admitted the legal ownership of the plaintiff together with Mr Wagar’s
ownership, but denied that the plaintiff was entitled to possession. What was
there alleged was, first of all, that the plaintiff and Mr Wagar held their
interest in the flat on trust for themselves and for the defendant. The judge
held that there was no such trust.
The
particulars giving rise to that trust were alleged to be that since the first
acquisition of an interest in the premises by the plaintiff and Mr Wagar the
plaintiff had paid substantially all the mortgage and other payments in respect
of the premises. That is not right; he had paid something like half of those
mortgage repayments and had made certain other payments, to which I shall have
to refer later. The judge took all those matters into account, but he found
that they did not constitute a trust on behalf of the defendant.
The second
defence was that the defendant was a tenant of the premises. The judge held
that that was not so, and that finding of the judge is accepted by Mr
Challenger and the question of tenancy is no longer an issue.
The third
defence on which the defendant relied was that he was a contractual licensee,
or in the alternative a licensee by licence granted by Mr Wagar, which could
not be determined without the consent of Mr Wagar. The learned judge held that
at most what the defendant had was a simple licence, determinable from Mr
Wagar, assuming as he did, and as I have said, that one co-owner could, without
the authority of the other, grant such a licence, determinable on reasonable
notice. It had been so determined, so he found that the
possession.
During 1978
substantial improvements were carried out to the flat with the aid of an
improvement grant from the local authority and a loan of £500 from a relation
of Mr Wagar. But there were payments made by the defendant; a schedule of those
payments shows first of all that cash payments were made by the defendant into
Mr Wagar’s account from June 1979 until July 1980, such payments totalling
£2,323.95, and there were two additional sums totalling £345. They also show
that there were payments made direct to the Greater London Council by the
defendant, not to Mr Wagar’s account, between December 1979 and August 1982,
totalling £1,051.09. So altogether there were payments, some made direct to the
mortgagee council and some made to Mr Wagar, totalling over £3,300. Those were
payments in respect of the mortgage, which rose during that period from
something like £40 a month to £86.24 a month.
The learned
judge heard the evidence of the plaintiff and of the defendant and that of
various other witnesses; in particular he heard the evidence of Mr Wagar. Mr
Wagar gave evidence, not as a party but as a witness for the defendant against
the plaintiff.
The remaining
issues of those which the judge had to decide, and therefore the issues which
this court has to resolve, were put in this way by Mr Challenger. The first is:
Can one of two joint owners validly terminate a licence to occupy premises
contrary to the express wishes of the other? Ancillary to that question was the
second question he sought to raise: Can a judgment for possession be given in
favour of one joint owner only? The second question is: Is the appellant
entitled to a beneficial interest in the proceeds of sale of the premises
concerned by reason of his contribution towards the purchase money? The third
issue is: If the appellant is entitled to a beneficial interest in the
property, has he a licence which is irrevocable until the sale of the property?
Those are in effect the questions raised also in his notice of appeal; they are
there raised in what seems to me to be a more logical order. It seems to me
that the first question must be: Had the defendant any, or what, interest in
the premises? Second, when that question is answered, was his interest validly
determined? I propose to deal with the points in that order, beginning with the
question of a trust and of a beneficial interest, which are really the first
and second grounds in the notice of appeal.
What Mr
Challenger submits is that an occupier of premises can, by contributing first
of all to the purchase money at the time, or immediately before the time, when
a property is purchased, acquire a beneficial interest which may ultimately
amount to an irrevocable licence of the kind which he submits the defendant had
been granted here. And he can acquire such a beneficial interest, not only when
he contributes to the purchase money at the start, but when his contributions
are towards mortgage repayments made in the course of subsequent months or
years. Such contributions may make it against conscience, or inequitable, for
the owner of the property, in respect of which an occupier makes such
contributions, to evict him, and may create a beneficial or equitable interest
in a person who makes those contributions. He referred us to such well-known
cases as Bull v Bull [1955] 1 QB 234, Binions v Evans
[1972] Ch 359, Hussey v Palmer [1972] 1 WLR 1286 and the decision
of Browne-Wilkinson I, as he then was, in Re Sharpe [1980] 1 WLR 219. He
submits that the large number of mortgage repayments must be treated as
contributions towards the purchase money; he points also to the fact that there
were other payments, including one which is referred to in the learned judge’s
judgment, of £450 to meet the legal expenses in respect of the flat, a sum
which the judge found the defendant borrowed from his parents. He also relies
on the fact that the plaintiff contributed nothing by way of mortgage
repayments and that she, as it were, lay by and allowed him to go on making
these payments after she knew of his presence in the flat, from January 1980
until she terminated, or purported to terminate, his licence in October 1981.
The difficulty in his way is that the learned judge found that a sum of £15 a
week which he was paying was for the use and occupation of the flat; it was to
meet the household expenses; a Mrs Tackle, who at one time stayed in the flat,
was paying a similar sum in exactly the same sort of way, and I think Mr
Challenger has had to concede that, whether one looks at the £15 a week or
looks at the overall total of £3,300 paid in respect of premises which the
defendant occupied on and off at first and then full time for a considerable
period, it could not be said to be, economically, an exorbitant payment for
what could be called a licence fee and household expenses, or a kind of rent
for his use and occupation of the premises.
The £450 does
seem to fall into a different category, but as Mr Neuberger points out, it was
not made with a view to the defendant’s living in the flat; it was a separate
loan before he went to live there and is not the kind of payment towards a
joint occupation of the flat which is to be found in such cases as those I have
referred to and to which Mr Challenger referred us — cases which one only has
to look at to see that they differ most strikingly on their facts from the
facts of this case as found by the learned judge. Again, what at first sight
might found an argument for unconscionable behaviour on the part of the
plaintiff, namely that, unlike the defendant, she contributed nothing during
those years, is met by the learned judge’s finding that she had been so
generous financially to Mr Wagar at the start of their connection with this
flat, and thereafter, that he was of the view that she had contributed enough
and that he ought to make all further contributions such as mortgage
repayments.
There are a
number of passages in which the learned judge refers to that. Generally, he
found that from the very beginning the plaintiff and Mr Wagar in a very loose
way pooled their resources. He said he was quite satisfied that the result of
this was that for many years, probably up to at least 1976 and certainly until
Mr Wagar left college in 1973, the plaintiff bore by far the heaviest financial
burden of their joint financial needs. She also said that she had paid his fees
for some course, which he denied, but he accepted the evidence of the plaintiff
generally on that point. The judge also found that she supported them both when
Mr Wagar was recovering from a serious accident which had sent him to hospital.
He found corroboration for the generosity of her financial contributions to Mr
Wagar in the evidence of a Mr Adams, who had I think taught both the plaintiff
and Mr Wagar singing; he accepted Mr Adams’ evidence of a discussion between
the plaintiff and Mr Wagar that — I quote from p 14 of the judgment:
. . . at the
time of the purchase of the flat when he questioned how it was to be paid for,
knowing the financial problems of the couple who both had been his singing
pupils. Paul Wagar said to the plaintiff in his presence ‘you won’t have to
worry about this — the amount of things you have done for me and the amount of
money that you have given me will more than cover this’, to which she replied
‘I will still pay and help as much as I can’. Mr Adams commented that she was
very touched by this. It is perhaps salutary to remember that between 1976 and
1980 she was paying back a large student loan from the Ontario government which
had been a pooled resource in their student days and from which, I accept, both
had benefited. Further, I accept that after the purchase Paul Wagar would on
occasions still ask for and be given money if he was in any particular need
although I am sure at this stage it was not a frequent occurrence.
In so far as
there was a difference in evidence between that of the plaintiff and that of Mr
Wagar in all these matters, the learned judge said:
I have no
hesitation in preferring the evidence of the plaintiff. Not only did she
impress me as being the most reliable in her recollections of the period but
there are a number of strongly corroborative features of the evidence as a
whole.
Further, the
delay from January 1980 to October 1981, on which Mr Challenger relies, was
found by the learned judge (who said, it is true, that the position about it
was not altogether clear, or that it was somewhat unclear) to have been caused
essentially by the defendant’s prevarication. That finding is unchallenged in
this court; to my mind it disposes of any suggestion that the plaintiff was in
any way at fault or was treating the defendant unfairly.
Finally, there
is no finding, and there could be no finding on the facts as the learned judge
found them, that there was any sort of common intention that the defendant
should ever have an interest in this flat. The learned judge pertinently
observed that when the plaintiff telephoned the defendant after her return to
England in January 1980 — and he accepted her evidence about this — the
defendant claimed squatter’s rights, and in accepting that that phrase was used
in that telephone call he pointed out that the defendant was not then making
the point that he had a third share and that this had been their mutual
agreement all along.
But however
that may be, the learned judge said:
That as
between the two men, Mr Wagar and the defendant, there was never an agreement
or understanding that the defendant was to have a share in the house along with
the two joint owners, or that the defendant was in any way induced to
contribute to the domestic expenses in the belief that it was to be the
arrangement.
Mr Challenger
says that that kind of arrangement is not necessary; that it can be spelt out
of, or inferred from, the conduct of the parties and in particular, of course,
from financial contributions. That
Neuberger has rightly called our attention to what was said by their lordships,
and in particular by Lord Upjohn, in the case of Pettitt v Pettitt
[1970] AC 777, which indicates that some sort of arrangement or agreement is
necessary. I think this court has to be careful in concluding that there are
constructive or resulting trusts, or that beneficial or equitable interests are
created, if there is no such arrangement, either express or implied. I do not
find it necessary to go further than that in this case, because the whole tenor
of the learned judge’s findings is, as it seems to me, that everything was done
on a most informal basis and that there is no material here, even in the
mortgage repayments and even in the payment of £450, from which it would be
proper, let alone necessary, to imply or infer any kind of trust or interest
such as the defendant now claims in this property. I agree with the learned
judge that the plaintiff and Mr Wagar did not hold this property on trust for
themselves as the defendant has pleaded in the amended defence, and I cannot
see that the judge was wrong to reject the defendant’s counterclaim that he had
a beneficial interest, however small or undefined, in this flat. At most, he
had the simple licence from Mr Wagar to which the learned judge referred.
Now has that
licence been validly determined? That brings me to the other ground of this
appeal. The learned judge dealt with the matter very briefly. He asked:
. . . could
the plaintiff lawfully determine the defendant’s licence without Paul Wagar’s
authority or consent? I hold that she could. It is clear from the analysis of
the relationship between a tenant and joint owners made by Lord Tenterden,
Chief Justice, in Doe d Aslin v Summersett (1830) 1 B & Ad
135, which remains unchallenged, that one joint owner can determine a tenancy
of a property without adoption by another. The true character of such a tenancy
is, he said, that the tenant holds the whole of the property so long as he and
all the joint owners shall please (at p 140). It follows that as soon as any
one of the joint lessors gives a notice to quit this effectively puts an end to
the tenancy.
I see no
reason why the same principle should not apply to licences. In my judgment each
co-owner is entitled to determine a simple licence over a joint property. It
follows that the notice contained in the plaintiff’s solicitors’ letter of
October 9 1981 did effectively end the defendant’s right to remain lawfully on
the property. It has not been disputed that the length of the notice was
reasonable.
Mr Challenger
has sought to distinguish that ancient authority and to contend, most
ingeniously, that its ratio has been wrongly understood in subsequent decisions
of this court which are binding upon us. He submits (and I shall have to look
at Lord Tenterden’s judgment) that the ratio of that decision is that in such
circumstances either the tenant of two co-owners, or the co-owner who does not
consent to or authorise the notice to the tenant to quit, has an option to treat
the tenancy as at an end, and if either the non-consenting co-owner or the
tenant does not choose to treat the tenancy as terminated — and in that case it
was a periodic tenancy — he need not do so and the tenancy cannot be terminated
by the unilateral action of one co-owner only. In this case neither Mr Wagar
nor the defendant has treated the licence as at an end; and Mr Challenger has a
second point, that that case deals with a periodic tenancy of the whole
property and has no application to a licence and, moreover, a licence to share
in the occupation of a property with others.
Again, as it
seems to me, he is in a difficulty; this time his difficulty is that the
decision in this 1830 case has been long treated and recognised as giving one
of two co-owners the right to terminate a tenancy without the consent or
authority of the other and without any requirement to terminate on the part of
the tenant. The decision is one which has to be examined with some care. It
rests to a very large extent on highly technical and artificial considerations
which now probably no longer prevail, and the fiction by which Mr Doe had in
those days to be introduced as plaintiff leads the co-owners to be described as
joint tenants in a way which is liable to confuse those who look at the
authority for the first time. But what the case appears to decide is that a
notice to quit signed by one of several joint tenants (who would now be called
co-owners), apparently purporting to be signed on behalf of the others, is
sufficient to determine a tenancy from year to year as to all.
Lord Tenterden
CJ, giving the judgment of the Court of Queen’s Bench, said at p 139:
A notice to
quit was duly served upon the defendant, but it was signed by one only of the
lessors of the plaintiff
those are what
would now be called co-owners
(though it
imported to be given on behalf of himself and the other lessors) and whether
that notice put an end to the defendant’s tenancy, was the question. Two
grounds were insisted upon by the lessors of the plaintiff: one, that the
adoption of this notice by the other lessor of the plaintiff made it of the
same validity as if it had been signed by both of them; the other, that without
any such adoption, a notice to quit by one of the joint tenants put an
end to the tenancy as to both: and we are of opinion that the latter ground is
right.
The learned
judge goes on:
Upon a joint
demise by the joint tenants upon a tenancy from year to year,
and here the
joint tenants are the co-owners
the true
character of the tenancy is this, not that the tenant holds of each the share
of each so long as he and each shall please, but that he holds the whole
of all so long as he and all shall please; and as soon as any one
of the joint tenants
again I
substitute for that co-owners
gives a notice
to quit, he effectually puts an end to that tenancy; the tenant has a
right upon such a notice to give up the whole, and unless he comes to a
new arrangement with the other joint tenants as to their shares, he is
compellable so to do. The hardship upon the tenant, if he were not entitled to
treat a notice from one as putting an end to the tenancy as to the whole, is
obvious; for however willing a man might be to be sole tenant of an estate, it
is not very likely he should be willing to hold undivided shares of it; and if
upon such a notice the tenant is entitled to treat it as putting an end to the
tenancy as to the whole, the other joint tenants must have the same right. It
cannot be optional on one side, and on one side only.
So, after that
rather curious reasoning in which the court appeared to be saying that it was
really for the tenant’s benefit that a notice to quit from one co-owner should
validly terminate the tenancy, rather than for the benefit of the co-owner, he
concludes the judgment of the court by saying, of another case cited to the
court:
The case was
put, not upon the ground that they were executors, but upon the ground that
they were joint tenants, and that, circumstanced as that case was, where
a mode specifically pointed out was to be pursued in order to put an end to a
subsisting term, and that mode required the concurrence of all the joint
tenants, a notice by some of the joint tenants only would have no operation,
but that concludes nothing upon a case in which a notice by one only of the
joint tenants would clearly operate upon his share, and where the confining it
to that share might work great injustice to the defendant. We are, therefore,
of opinion that the notice was sufficient to put an end to the tenancy in toto.
In 1840 Parke
B stated that Summersett’s case was ‘an express authority that a notice
to quit by one of several joint-tenants, purporting to be given on behalf of
them all, is good for all, because the tenant holds the premises only so long
as he and they all shall agree’: Doe d Kindersley v Hughes
(1840) 7 M & W 139, 141. And in that case the agent who gave the notice had
been authorised to give it by only one ‘joint-tenant’.
Summersett’s case has been approved by this court on at least two occasions: in
the case of Leek and Moorlands Building Society v Clark [1952] 2
QB 788, and in the more recent case of Greenwich LBC v McGrady
(1982) 81 LGR 288*. It has also been followed by Mr Rattee QC, sitting as an
additional judge of the Chancery Division, in the case of Parsons v Parsons
[1983] 1 WLR 1390. In the first of the two decisions the Court of Appeal
distinguished Summersett’s case and held that it did not apply to the
surrender of a tenancy by a joint tenant; in the second decision they held that
it did apply to a notice by a joint tenant ‘to terminate the tenancy’. In both
cases it was necessary for this court to decide what Summersett’s case
decided, and both those courts treated Summersett’s case as deciding
that a notice to quit by one co-owner did determine the tenancy of the tenant;
and although, strictly speaking, it may not be binding upon this court to
follow that interpretation of the ratio decidendi of Summersett’s
case, I find it difficult not to regard that interpretation as part of the
ratio by which they were deciding the cases which were before them, and I
cannot find, plausible as Mr Challenger’s argument is, that Summersett’s
case can be distinguished from this case.
*Editor’s
note: Also reported at (1982) 267 EG 515, [1983] 2 EGLR 32.
I am fortified
in that view by a decision which was not cited to the learned judge. He
apparently had the other authorities (although he did not refer to them) of Leek
and McGrady to consider, but not a decision of this court in the case of
Robson-Paul v Farrugia (1969) 20 P&CR 820. This case seems to
me to be of importance, not only on the question whether a tenancy can be
determined by such a notice as was given in this case, but whether a licence
can. It is also of importance in considering, if we have to consider, Mr
Challenger’s subsidiary point, that even if the notice was valid, nevertheless
possession cannot be granted to one of two co-owners only; both must be given
possession or neither.
That was a
case of most unusual facts, in which the first defendant,
to the second defendant, a Miss Dimitriou. Mr Farrugia had disappeared and was
not suing for possession but was in fact, as I have said, the first defendant
to the claim of the other owner, Miss Robson-Paul, for possession against him
and against the second defendant, Miss Dimitriou.
Davies LJ, in
giving the first judgment of the court, referred to Miss Dimitriou’s pleaded
defence, which says:
‘If, which is
not admitted, the plaintiff does have a proprietary interest in the said
premises, she holds the same jointly with the first-named defendant’ — that is
to say, Farrugia — ‘and the second defendant is in occupation of the said premises
with the consent of the first-named defendant given in September 1965 and never
revoked’.
It was on
those lines, and those lines only, that the case for the second defendant was
conducted in the county court, namely, that if the plaintiff, Miss Robson-Paul,
had any interest in the premises, she was a joint owner with Farrugia, and
Farrugia had given Miss Dimitriou permission to live in the premises. There
was, of course, no express permission, oral or written. The permission relied
upon was a permission, it would appear, to be inferred from the fraudulent,
dishonest transfer by Farrugia and the other woman (who ever she was) to Miss
Dimitriou. That that was the line of the defence and that it is quite
inconsistent with the point which Mr Hesketh wished to argue before us is made
clearer still by the judge’s note of the argument on behalf of the second
defendant . . . . ‘2nd defendant in premises with consent of Farrugia who is
joint owner. Licence with an interest’, and then a rather curious argument: ‘an
irrevocable licence’.
That is how
the case was conducted in the court below.
Then the
learned lord justice sets out the judge’s findings and summarises the argument
of Mr Hesketh, counsel for the second defendant, in one sentence:
He submits
that one equitable tenant in common cannot determine a licence given to a
stranger by the other equitable tenant in common. He says that Farrugia must be
taken to have given a licence to Miss Dimitriou to go into this house. The
judge says that appeared to be conceded. Maybe it was, but, for myself, in the
absence of such a concession, I should wish to consider whether the entering
into this fraudulent dishonest transfer did imply such a licence. Assuming,
however, that such a licence is to be implied from Farrugia’s transaction, it
seems to me to be quite impossible to say that such a licence cannot be
terminated by the other joint tenant or other equitable tenant in common
without the agreement of both. If one can grant a licence — as to which, quaere
— then, surely, the other can revoke the licence. Otherwise, the licensee would
remain in the premises ad infinitum.
So he held that
the judge was perfectly right in his conclusion and that he would dismiss the
appeal.
To the same
effect was Megaw LJ. He agreed with Davies LJ, but I think he put more emphasis
on the validity of the alleged licence. He said:
With regard to
the second point argued by Mr Hesketh, this . . . involves the proposition that
one equitable tenant in common cannot determine a licence which has been given
to a third party by the other tenant in common otherwise than by the tenant in
common obtaining an order for sale. This proposition is based on the well-known
authority of Bull v Bull. Mr Hesketh seeks to extend the
principle of Bull v Bull so that it should apply, not merely as
between one tenant in common and another tenant in common, but also between one
tenant in common and someone to whom possession has been transmitted by the
other tenant in common, as, for example, by the other tenant in common having
granted a licence to some third party.
Mr Hesketh
put the question forensically, having regard to the principle laid down in Bull
v Bull: Should that principle not apply equally to prevent a tenant in
common from getting an order for possession against someone to whom his fellow
tenant in common has transmitted possession? I think that the answer to that
question might well be ‘no’. Indeed, I think that it might well be put the
other way round: why should someone to whom the possession of the whole
property has been transmitted by the tenant in common have protection against
the obtaining of an order for possession by the other tenant in common who has
not concurred in that transfer of possession?
Whatever the
answer to that question might be, the submission put forward by Mr Hesketh
appears to me to depend fundamentally on the proposition that there was a valid
licence given by the first defendant, Mr Farrugia, to the second defendant,
Miss Dimitriou,
and then the
learned lord justice proceeds to doubt that.
The
resemblance of that case to this is limited, but nevertheless striking. It
seems to me that what Davies LJ said, ‘If one can grant a licence . . . then .
. . the other can revoke the licence. Otherwise, the licensee would remain in
the premises ad infinitum‘, applies just as much to a case of a sharing
occupation as it does to an occupation, whether under licence or tenancy, of
the whole of a property. It is also noticeable that in that case Farrugia was a
defendant and not a plaintiff, and there are passages in the judgment of Davies
LJ in which he said it would obviously have been quite idle to have tried to
make Mr Farrugia a plaintiff; so the court does not seem to have found any
difficulty in upholding a judgment for possession in favour of one co-owner or
tenant in common, if that is the position, without the other owner or tenant in
common being either a party to the proceedings or consenting to the termination
of them or to the claim for recovery of possession of the property concerned.
No reference was made in that case to the Summersett case, but it seems
to me to support the view which the learned judge took, that there was no
difference between a licence and a periodic tenancy for this purpose, and that
the notice of October 1981 given by the plaintiff validly determined the
licence given to the defendant by Mr Wagar.
In connection
with the payments made by the defendant, I meant to refer to the learned
judge’s findings in various parts of his judgment that they were made for the
defendant’s own purposes and not, at any rate not clearly, as contributions to
the purchase money or to anything else which would be relevant in creating an
equitable interest in his favour.
I have touched
on what I have called the ancillary point which Mr Challenger sought to make,
that no possession could be granted to one only of two co-owners. Mr Neuberger
has, I think rightly, objected to that point being taken in this court because
it was not taken in the court below. Mr Challenger does not dispute that,
although it may be that it was covered by the pleadings, it was not separately
argued below, and in those circumstances the ordinary practice of this court is
that laid down by the House of Lords, in Smith v Baker [1891] AC
325, not to entertain the point.
We might have
considered entertaining it but for Mr Neuberger’s submission that if the point
had been taken in the court below it might have been met by Mr Wagar being
joined as co-plaintiff or, if he was unwilling to be joined as co-plaintiff, to
his being joined as co-defendant. That opportunity was lost because the point
was not taken below and in my judgment that is a compelling reason for us to
apply the practice laid down in Smith v Baker and not to entertain
the point in this court. I think it better not to express any concluded opinion
about it; I have already referred to the similar position which arose in the
case of Robson-Paul v Farrugia.
I would only
add that if my lord agrees and this appeal is dismissed, on the view which the
learned judge took of the parties — he saw and heard them and we have not had
that advantage — there can be no injustice or unfairness to the defendant in
the result that has been reached.
I would affirm
the learned judge’s judgment and dismiss the appeal.
Agreeing,
LLOYD LJ said: On the first question, whether the appellant in this case has an
equitable interest by reason of his contribution to the outgoings between the
period January 1980 to October 1981, I have nothing to add to what my lord has
said. I agree with my lord that on the facts found by the learned judge in a
very careful judgment, after a hearing lasting nine days, the answer to the
first question must be ‘no’.
The second
question is whether one of two joint owners can validly determine a licence to
occupy premises without the consent of the other co-owner, and indeed contrary
to his express wishes. In the light of the decision of the court in Doe d
Aslin v Summersett and the other cases binding on this court to
which my lord has referred, the answer to that question must be ‘yes’. Mr
Challenger’s central submission on this aspect of the case was that the Summersett
case has been consistently misunderstood in subsequent decisions. What the case
decided, according to Mr Challenger, and all that it decided, was that if one
of two joint lessors gives a notice to quit, then the tenant has a right to
treat that notice as determining the tenancy, but is not obliged to do so. I do
not accept that argument for two reasons. First, if it were correct the court
in Summersett’s case would have reached the opposite result. The
defendant in Summersett’s case was the tenant; it was the tenant who was
resisting an action of ejectment; it was the tenant who was challenging the notice
to quit. If the tenant had an option to give up the tenancy, but no obligation
to do so, then he would have succeeded.
Second, I can
find nothing in the judgment itself to support Mr Challenger’s argument. The
passage upon which he particularly relied is at the foot of p 140. It follows
immediately after the passage which has usually been cited in subsequent cases
and has, according to Mr Challenger, been overlooked in all those cases. He
relied particularly on the words:
. . . the
tenant has a right upon such a notice to give up the whole.
But that
sentence continues:
. . . and
unless he comes to a new arrangement with the other joint tenants
which here
means co-owners
as to their
shares, he is compellable so to do.
When one reads
the sentence as a whole, it seems to me that so far from supporting Mr
Challenger’s submission, it is if anything against it.
The same also
applies to a sentence at the end of that paragraph, which reads:
. . . . and
if upon such a notice the tenant is entitled to treat it as putting an end to
the tenancy as to the whole, the other joint tenants
meaning
‘co-owners’
must have the
same right. It cannot be optional on one side, and on one side only.
The truth is
that, as was pointed out in Parsons v Parsons [1983] 1 WLR 1390,
at p 1397, the reasoning in the passage on which Mr Challenger particularly
relied is no longer appropriate since the reforms of the law relating to joint
ownership of land affected by the Law of Property Act 1925. In any event what
matters in this case are the cases which have been decided by this court since
1925, to which my lord has referred. We are bound by those cases, and in
particular by Robson-Paul v Farrugia, to reject Mr Challenger’s
argument on the second question.
On the third
question I also agree with my lord that it is now too late for the appellant to
take the point that this action is not properly constituted.
For those
reasons I, too, would dismiss the appeal.
The appeal
was dismissed with costs. Possession was ordered within 28 days.