Deserted mistress cannot assert man’s statutory tenancy of the rent-controlled premises she occupies as his licensee–On his surrender of tenancy and permanent abandonment of the premises she must give possession to the landlord–Mistress who has borne children is not entitled to be protected as a wife
This was an
appeal by Colin Smith Music Ltd from a decision of Judge Forrest at
Weston-super-Mare County Court on February 20 1974 rejecting their claim for
possession of premises known as First and Second Floor Flat, the Bank House,
High Street, Worle, Weston-super-Mare, occupied by the respondent, Mrs Frances
Paula Ridge.
Mr P Talbot
(instructed by Reed & Reed, agents for Hall, Ward & Fox, of
Weston-super-Mare) appeared for the appellants, and Mr C Gosland (instructed by
Stiddard & Chew, of Weston-super-Mare) represented the respondent.
Giving
judgment, CAIRNS LJ said that in March 1973 a Mr and Mrs Joyner bought the Bank
House, the upper part of which was a tenanted flat. By her defence the defendant
had asserted that she was joint weekly tenant of this part of the premises with
a Mr Venn, with whom she was living. The rent book in Mr Joyner’s possession,
however, showed Mr Venn as the sole tenant. The defendant, a divorced woman,
lived with Venn from 1968 until July 28 1973, when according to her own
evidence he left her with no intention of returning. She had two children
already, and they lived with her and Venn; and during her association with Venn
she had two more children by him. On August 9 1973 the Joyners got Venn to sign
a deed of surrender of the protected tenancy, and immediately afterwards they
conveyed the premises to the plaintiffs, a company of which Mr Joyner was a
director. The county court judge had held that Venn’s protected tenancy could
be terminated only (1) by judgment, or (2) by surrender combined with actual
delivery of possession; and that by leaving the defendant in the flat with her
children Venn had failed to deliver possession to the plaintiffs.
It was clear
from a number of Court of Appeal decisions that mere physical absence of a
tenant from rent-protected premises did not deprive him of his statutory
rights. In many of the cases, for example Brown v Draper [1944]
KB 309, it was a wife who was left in possession. The position of a mistress
left in possession seemed first to have been considered in Brown v Brash
[1948] 2 KB 247, where the woman had in fact left the premises at the time when
the landlord sought possession. The principles enunciated in that case were subsequently
applied in Thompson v Ward [1953] 2 QB 153. There a tenant
installed his mistress in premises of which he held a contractual tenancy. Some
time later the contractual tenancy was made statutory, and later still the
tenant left, leaving the mistress behind. Some time after that he brought an
action for possession against her, claiming as statutory tenant. He obtained
judgment, but this was set aside on appeal on the basis that though a statutory
tenant could in
occupying licensee, the person left in the premises must have the function of
preserving his rights there against his ultimate home-coming. It appeared,
therefore, that a licensee left in possession by a protected tenant when he
himself left, intending to remain permanently away from the premises, was no
longer entitled to the protection of the Rent Acts. Cases such as Middleton
v Baldock [1950] 1 KB 657 and Wabe v Taylor [1952] 2 QB
735 depended wholly on the relationship of husband and wife. Counsel had sought
to say that in these days possession by a mistress who had borne children to a
protected tenant was analogous to possession by a wife; but in his (Cairns
LJ’s) view this was not so. Counsel for the defendant had drawn an interesting
comparison with the position of a mistress who, with her children, was residing
in the house with the protected tenant up to the time of his death. It had been
held in Hawes v Evenden [1953] 1 WLR 1169 that she was a member
of the protected tenant’s family for the purpose of succeeding to the
protection of the Act after his death. That of course depended on the
construction to be placed on the word ‘family’ in the Act, and he (his
Lordship) did not find it of real assistance in this case. In his opinion the
defendant could succeed here only if it were laid down as a general principle
that any person who had a licence from a protected tenant would continue to
have the protection notwithstanding surrender of the tenancy by the protected
tenant and his permanent abandonment of the premises. That could not have been
the intention of the legislature, and the appeal should be allowed.
LAWTON LJ said
that the defendant could look to Mr Venn for money payments in respect of the
children he had had by her, but was not entitled to call on him to provide them
with a home. There was nothing in the authorities which justified the court in
holding that a mistress in her capacity as lodger, or indeed in any other
capacity, was in any position analogous to that of a wife. It was clear on
principle that the Act did not protect mere licensees, and the appeal should be
allowed.
BRIGHTMAN J
agreed with both of the judgments delivered.
An order was
made for possession within 28 days.