Tenant’s prolonged absence in Malta insufficient to deprive her of protected tenancy of flat in Westminster–Discussion by MacKenna J of date by reference to which tenant’s intentions are to be assessed in cases of the kind–Beginning of period of absence, or date of hearing?
This was an
appeal by Gofor Investments Ltd, of Sydenham Road, Croydon, from a judgment of
Judge Ruttle at Westminster County Court dated April 25 1974 dismissing their
claim against the respondents, Mr Michael Guy Roberts and Mrs Christine Mary
Cecile Boyd, for possession of a flat, 2 St Augustine’s Mansions, Bloomburg
Street, London SW1.
Mr R Hone
(instructed by Peter Mallack & Co) appeared for the appellants; Mr C Harris
(instructed by Lynch, Hall & Hornby, of Harrow) for the first respondent;
and Mr R Pryor (instructed by R C Bartlett & Co) for the second respondent.
Giving
judgment without calling on counsel for either respondent, CAIRNS LJ said: This
is an appeal by the plaintiffs from a judgment of Judge Ruttle dismissing their
claim for possession of a flat against two defendants. The premises are at 2 St
Augustine’s Mansions, SW1. One of the defendants was Mrs Boyd, who was at one
time the contractual tenant of the flat and who succeeded in her defence on the
ground that at the time of the action she was the statutory tenant of it. The
other defendant, Mr Roberts, who at one stage claimed to have been the tenant
but whose defence succeeded on the basis that he was the licensee of Mrs Boyd,
now relies only on that second ground. The plaintiffs contend that after the
contractual tenancy ended Mrs Boyd abandoned possession, and therefore no
statutory tenancy on which either she or Mr Roberts could rely ever arose.
Mrs Boyd
became the tenant under a lease from a Mr and Miss Newman, who were the
plaintiffs’ predecessors in title. It was a lease for seven years, expiring on
September 29 1972. Mrs Boyd and her husband and family of six children lived in
the flat for a number of years up to 1970, but the parents and four of the
children then went off to live first in Morocco and then after a short time in
Malta, leaving behind two of their sons called Nicholas and Toby. They stayed
in the flat for the time being. The lease contained a covenant against
assigning or subletting or taking lodgers without the consent of the landlords,
but in January 1970 Mrs Boyd conceived a plan of assigning the lease to
trustees–there were tax reasons for that idea–and then, with the leave, if she
could get it, of the Newmans, allowing one or more members of the Boyd family
to live there and to take lodgers. On April 8 1970 the Newmans signed a
document which on the face of it appears to be a consent to such assignment and
occupation. In fact, no assignment to trustees ever took place. But Nicholas
and Toby continued to live there after Mr and Mrs Boyd and the rest of the
family had left; and
came as a lodger. It is perfectly clear from certain of the correspondence that
the Newmans were aware of these events, and even if the document that was
signed in April 1970 was not in fact a licence to assign and take lodgers, and
so forth. Mr Roberts clearly became a licensee of Mrs Boyd with the assent of
her then landlords, the Newmans.
In 1971
Nicholas Boyd joined the Army, and thereafter he no longer lived regularly at
the flat, but he did come there when on leave. He left the Army in 1972 and
spent a few nights at the flat after that. Mr Boyd was in England in the spring
of 1972 and he stayed there for some six nights. Mrs Boyd was in Malta
throughout this time. Mr Roberts continued to reside at the flat up to the time
of the proceedings in January 1973. There was considerable discussion in
letters and at an interview which took place in, I think, April 1972 between Mr
Boyd, on behalf of his wife, and Mr Newman and Mr Roberts as to what
arrangements should be made when the lease came to an end in September of that
year. There were various plans for an extension of the lease to Mrs Boyd, or,
more correctly, one would say a new lease to Mrs Boyd, or for a lease to Mr
Roberts with a view to his assigning it to Mr or Mrs Boyd if and when they came
back to England. But these discussions came to nothing. All this time some of
Mrs Boyd’s furniture remained at the flat. At the time when they left in 1970
there was quite a good deal of it there. Between then and April 1974 a lot of
it had disappeared. Whether Mr Roberts had disposed of it, possibly because it
was worn out, or whether some other people had taken it away is not clear, but
what is clear is that Mrs Boyd never intended any of the furniture to be
removed and that some of it did remain there all the time. She said in evidence
that there were still two chests of drawers and a carton of pots and pans and
kitchen things left, admittedly in a very bad condition, but it has not
entirely gone.
In further and
better particulars of her defence Mrs Boyd alleged that when she and her
husband left for Morocco, and afterwards for Malta, they did not expect to
return unless obliged to do so, but expected that their children would come
back and live in the flat when they grew up. However, by amendment, made it is
true at a late stage, at the start of the hearing before Judge Ruttle, that
part of her particulars was deleted, and she substituted the allegation that
she had intended from the time when she left in 1970 to return when the
children had completed their education. That was after a period of eight or 10
years. Mrs Boyd gave evidence, generally in accordance with her amended
particulars, though she went further and said that she now thought it was
probable that she would return within two years from that time. That would be
by 1976, a period of some six years from when they first left, and some four
years or rather less from the time when the lease came to an end. The judge
accepted Mrs Boyd as a truthful witness throughout.
At about the
time when the lease expired, the end of September 1972, the Newmans sold the
freehold reversion to the plaintiffs. The issue before the judge was whether
Mrs Boyd had ceased to be resident in the flat or whether it always continued
to be her residence, having regard to the fact that she always intended to
return to it, and that for at least part of the time the sons and Mr Roberts
might be regarded as being there in the capacity of what has been described in
some of the cases as caretakers. More especially she relied upon her furniture
being left at the flat; that, of course, combined with her intention to return.
The relevance of these matters arises from the provisions of two subsections of
the Rent Act 1968 and certain cases which have been decided by the Court of
Appeal. Section 3 of the Act provides in subsection (1) as follows:
‘Subject to sections
4 and 5 below’–and they are not relevant–‘(a) after the termination of a
protected tenancy of a dwelling-house the person who, immediately before that
termination, was the protected tenant of the dwelling-house shall, if and so
long as he occupies the dwelling-house as his residence, be the statutory
tenant of it’
Then by
subsection (2):
‘In paragraph
(a) of subsection (1) above and in Schedule I to this Act, the phrase ‘if and
so long as he occupies the dwelling-house as his residence’ shall be construed
as requiring the fulfilment of the same, and only the same, qualifications
(whether as to residence or otherwise) as had to be fulfilled before the
commencement of this Act to entitle a tenant, within the meaning of the
Increase of Rent and Mortgage Interest (Restrictions) Act 1920 to retain
possession, by virtue of that Act and not by virtue of a tenancy, of a
dwelling-house to which that Act applied.’
So the effect
of that subsection was to say that in considering whether a person did retain a
dwelling-house as his residence, one had to look at the authorities prior to
1968 to see what the position was. It was laid down in a number of cases from
the 1920’s onwards that the fact that a person was not physically in residence
at any particular time did not mean that the house had ceased to be his
residence. I take as a convenient summing-up for the purpose of this case one
sentence from the judgment of Ormerod LJ in the case of Tickner v Hearn
[1960] 1 WLR 1406 at page 1410: ‘In such cases’–and that is cases of the kind I
have been referring to–‘there must be a real hope of return coupled with the
practical possibility of its fulfilment within a reasonable time.’ That was further elaborated by a judgment of
the Court of Appeal in Brown v Brash [1948] 2 KB 247, a judgment
of the court delivered by Asquith LJ. The passage I am going to cite is on
pages 254 and 255, because it seems to me that there is much in this statement
of the law which is applicable to the present case. Asquith LJ said:
We are of the
opinion that a ‘non-occupying’ tenant prima facie forfeits his status as
a statutory tenant. But what is meant by ‘non-occupying’? The term clearly cannot cover every tenant
who, for however short a time, or however necessary a purpose, or with whatever
intention as regards returning, absents himself from the demised premises. To
retain possession or occupation for the purpose of retaining protection the
tenant cannot be compelled to spend 24 hours in all weathers under his own roof
for 365 days in the year. Clearly, for instance, the tenant of a London house
who spends his weekends in the country or his long vacation in Scotland does
not necessarily cease to be in occupation. Nevertheless, absence may be
sufficiently prolonged or unintermittent to compel the inference, prima
facie, of a cesser of possession or occupation. The question is one of fact
and of degree. Assume an absence sufficiently prolonged to have this effect.
The legal result seems to us to be as follows: (1) The onus is then on the
tenant to repel the presumption that his possession has ceased. (2) In order to
repel it he must at all events establish a de facto intention on his part to
return after his absence. (3) But we are of opinion that neither in principle
nor on the authorities can this be enough. To suppose that he can absent
himself for five or 10 years or more and retain possession and his protected
status simply by proving an inward intention to return after so protracted an
absence would be to frustrate the spirit and policy of the Acts, as affirmed in
Keeves v Dean [1924] 1 KB 685 and Skinner v Geary
[1931] 2 KB 546. (4) Notwithstanding an absence so protracted the authorities
suggest that its effect may be averted if he couples and clothes his inward
intention with some formal, outward, and visible sign of it; that is, installs
in the premises some caretaker or representative, be it a relative or not, with
the status of a licensee and with the function of preserving the premises for
his own ultimate home-coming. There will then, at all events, be someone to
profit by the housing accommodation involved, which will not stand empty. It
may be that the same result can be secured by leaving on the premises, as a
deliberate symbol of continued occupation, furniture; though we are not clear
that this was necessary to the decision in Brown v Draper [1944]
KB 309. Apart from authority, in principle, possession in fact (for it is with
possession in fact and not with possession in law that we are here concerned)
requires not merely an
visible state of affairs in which the animus possidendi finds
expression. (5) If the caretaker (to use that term for short) leaves or the
furniture is removed from the premises, otherwise than quite temporarily, we
are of the opinion that the protection, artificially prolonged by their
presence, ceases, whether the tenant wills or desires such removal or not.
I refer also
quite briefly to two other cases which Mr Hone has relied upon. One is Beck
v Scholz [1953] 1 QB 570. That was a decision of this court in which
what had happened was that the tenant had left furniture and a caretaker and
desired to retain possession because he or she occasionally found it convenient
to resort to the premises; and this court held that in those circumstances
there was not sufficient to constitute a continuance of residence there. It
does not seem to me that that is really helpful to us in this case, because the
whole point of it was that the presence of the caretaker and the furniture was
not with a view to ultimate intention to return there to use the place as the
home of the tenant, but was for convenience at a time when it was not being
occupied by him except occasionally. The other case was Dixon v Tommis
[1952] 1 All ER 725. This, it appears to me, is a case which assists the
defendants rather than the plaintiffs here. I read from the headnote:
The statutory
tenant of a dwelling-house within the Rent Restrictions Acts went to live in
other premises, leaving his furniture in the house, and his son and the son’s
family took up residence in the house. On a claim by the landlord for
possession on the ground that the tenant had ceased to reside in the house, the
tenant gave evidence that he contemplated retiring from his profession in about
three years’ time and he-would then be unable to maintain the other premises
and intended to return to the house, of which meanwhile his son was merely a
caretaker on his behalf. The county court judge having refused an order for
possession: Held, the question whether the intention of the tenant to
return to the house, although after so long a period as three years,
constituted sufficient animus revertendi was one of degree for the
county court judge, and it was impossible to say that, in answering that
question in the affirmative, he had erred in law.
Unless it be
said that in this case the fact that it might be difficult to establish if
there was anybody there as a caretaker distinguishes this case, or unless it
can be said that a period of eight or 10 years is so different from a period of
three years that different considerations must apply to it, Dixon v Tommis
seems to me to support the defendants’ case here.
The judge
founded his decision in favour of the defendants first on the evidence of Mrs
Boyd that she always intended to return, and that intention was demonstrated by
a letter on which the judge placed considerable reliance, in my view rightly
so, a letter written on March 25 1972 to Mr or Miss Newman. It is sufficient
for me to cite just one or two sentences from a long letter. One sentence was
this: ‘The real snag is our having a home in England for the older ones to
return to when they start work and for us to return to when the youngest,
nearly 10 and very bright, has finished school.’ Then later: ‘I hope we could find a nice
family to keep our home nice for us.’ In
my view, the judge was fully entitled, on Mrs Boyd’s oral evidence, supported
by that letter, to reach the conclusion that at all material times she did have
a definite intention of returning to this country and returning to this flat
within something like eight to ten years of the time when she left. I think the
material time would be from the expiration of the lease at the end of September
1972 onwards. Probably if the intention were departed from at any time between
then and the hearing, then it would mean her defence would fail. Then in
addition to the intention to return, which was the animus possidendi,
for the corpus possessionis the judge relied to some extent on the fact
that Nicholas and Toby, and indeed Mr Boyd, had been there from time to time,
but mainly upon the presence of furniture. It is true that in Brown v Brash
Asquith LJ put it as a matter of some doubt as to whether furniture alone would
constitute the corpus possessionis, but for my part I see no reason why
it should not do so.
At the end of
the day this really resolved itself into a question as to whether the period of
eight or ten years was so prolonged a time that it could not be said that Mrs
Boyd was continuing to be in residence throughout that period, and reliance was
placed on that part of the judgment of the court in Brown v Brash
at p 254 where Asquith LJ said: ‘To suppose that he can absent himself for five
or ten years or more and retain possession and his protected status simply by
proving an inward intention to return after so protracted an absence would be
to frustrate the spirit and policy of the Acts.’ It is important to observe that the learned
Lord Justice went on in his next proposition to say: ‘Notwithstanding an
absence so protracted the authorities suggest that its effect may be averted if
he couples and clothes his inward intention with some formal, outward, and
visible sign of it.’ So the court in
that case was certainly not treating an absence of five or ten years as being
necessarily so prolonged as to mean that it was an unreasonable time within the
meaning of Ormerod LJ in Tickner v Hearn. What it comes to, I
think, is that it is, as was said in Dixon v Tommis, a question
of fact for the judge in all the circumstances of the particular case. With
this matter of reasonableness the judge dealt clearly and fully in a passage
which I cite from one of the two notes of his judgment, and the one which I
gather counsel on both sides preferred for the purpose of this particular part
of it. He said:
In 1970 the
theory was that the absence would be for not more than 10 years. It was
suggested that that was not a reasonable time. I must judge reasonableness in
the context of all the circumstances. This is a family where the husband is on
a pension and who were intending to be away for about 10 years. That is not
unreasonable in that context. It might be different if they were merely going
for pleasure or something of that sort. I can see nothing unreasonable in
saying that this flat does not cease to be their home for the time that their
children are being educated in Malta. Now I am told that Toby and Hamish Boyd
may go and live there. It may be that the Boyds themselves will return sooner
than previously contemplated. I accept there are financial limitations in Malta
more general than a few years ago. However, the flat has remained their second
home.
In my opinion,
the learned judge was applying the right tests and there was evidence from
which he could reach the conclusion that he did, and there is no ground for
saying that he was wrong in the judgment that he gave in favour of Mrs Boyd. It
is conceded by the plaintiffs that if Mrs Boyd succeeds, then Mr Roberts
succeeds as her licensee. Accordingly, I would dismiss the appeal.
LAWTON LJ: I
agree. There were times during the course of Mr Hone’s submission on behalf of
the landlords when I had to remind myself that I was not trying this case. Had
I been doing so I might have come to a different conclusion to that to which
the trial judge came. The question for this court has been whether the judgment
of the trial judge should be upheld. That question has to be resolved in
accordance with well-known principles. The first problem has been whether the
learned judge misdirected himself in law. The next question has been whether
there was any evidence to support his findings.
One of the
difficulties in this case has arisen from the fact that over the years since
1920, when the status of the so-called statutory tenant had first to be
considered, there have been many cases decided as to when a person loses the
status of a statutory tenant. Sometimes the cases have been reported, either in
the ordinary law reports or in journals of professional bodies which take an
interest in cases affecting property. From the law reports such cases have got
into textbooks. In the textbook which is so frequently used nowadays by
counsel, namely Megarry’s Rent Acts, there are a number of pages which
set out illustrations of particular types of cases in
tenant. There is a danger, which this case manifests, of particular examples of
decisions on fact being made into a corpus of law. The right approach is not to
examine what judges in other cases have decided on different facts but to ask
what was the issue before the judge. Section 3 (1) of the Rent Act 1968 makes
clear what it was, to wit that a man shall have the benefit of a statutory
tenancy ‘if and so long as he occupies the dwelling-house as his
residence.’ In my opinion that raises a
simple issue of fact which does not require subtle distinctions to be drawn by
lawyers. The administration of this Act of Parliament, which affects so many
hundreds of thousands of people, is not made any easier for county court judges
if subtle distinctions are made.
The matter,
unfortunately, is somewhat complicated by section 3 (2), which sets out a
statutory test for construing what is meant by the words ‘if and so long as he
occupies the dwelling-house as his residence.’
That statutory instruction is as follows: ‘The phrase . . . shall be
construed as requiring the fulfilment of the same, and only the same,
qualifications (whether as to residence or otherwise) as had to be fulfilled
before the commencement of this Act to entitle a tenant, within the meaning of
the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, to retain
possession, by virtue of that Act and not by virtue of a tenancy, of a
dwelling-house to which that Act applied.’
As my brother Cairns has said, subsection (2) of section 3 does require
the courts to look to see what the law was before the Rent Act 1968 came into
operation. The definitive judgment on this matter is to be found in the
judgment of this court in Brown v Brash, to which Cairns LJ has
already referred and from which I need not quote, save to remind myself that
Asquith LJ, in delivering the judgment of the court, pointed out that the
question is one of fact and of degree.
A county court
judge, when he comes to consider the issue as to the status of a statutory
tenant, has to ask himself certain questions. It was conceded by Mr Hone in
argument that in this case the learned trial judge did ask himself the right
questions. He did ask whether Mrs Boyd had a real intention of returning, and
he answered that question in the affirmative. He also asked himself whether
there was any corpus possessionis, and he answered affirmatively in
favour of Mrs Boyd. So there can be no question in this case of his having
misdirected himself as to the law. This court next has to inquire whether the
evidence was sufficient to support his findings. Another way of putting this
issue is to ask whether his findings on the evidence were so unreasonable as to
be perverse. The learned judge gave most careful attention to the evidence in
this case and he came to the conclusion, surprising perhaps to some, that there
was a real intention to return and a sufficient corpus possessionis. I
might not have come to the same conclusion had I heard the evidence. Perhaps
other judges would not have come to the same conclusion; but I find it impossible
to say that there was not evidence upon which those findings could have been
made, and accordingly I can see no reason for interfering with the judgment. Mr
Hone called our attention to a number of other cases on different facts where
other judges have come to conclusions which are not in harmony with the
conclusion in this case. That kind of analysis of other cases decided on fact
is not helpful: it is a commonplace of forensic experience that every case has
got to be decided on its own facts, and, as was pointed out in the course of
argument, in all the reported cases which have been decided against the tenant
it is easy to point to an additional fact which might have made all the
difference. I would dismiss the appeal.
MACKENNA J: We
are told by two of the judgments in Tickner v Hearn [1960] 1 WLR
1406, that of Ormerod LJ at page 1411 and that of Upjohn LJ at page 1416, that
it is a relevant consideration whether a tenant who is residing elsewhere
intends to return to the demised premises ‘within a reasonable time.’ A question arises on this view of the law
which I can explain by an example. At the time when the contractual tenancy
comes to an end the tenant may be living elsewhere, but may intend to return at
some future date, say in eight years’ time. The question of his right to occupy
as a statutory tenant may not be raised at that particular time. When it is
raised, say a year later, the tenant may still be living elsewhere, but now his
intention may be to return in another two years’ time. In the case I have
supposed, is the question for the court whether a period of eight years is a
reasonable time, or one or two years?
With respect to Cairns LJ, in my judgment two years is the relevant
period, and this view is, I believe, consistent with the judgments in Tickner’s
case. The tenant’s intention, and other similar matters must, I think, be
considered at the date when his right to continue as a statutory tenant is
challenged.
If this is so,
it is easier to reach a conclusion in Mrs Boyd’s favour in the present case.
Her intention in 1972, when her statutory tenancy began, was to return when the
education of all her children was completed, which was likely to be 1980, which
is still very far ahead. Her intention in 1974, when the case was tried, was to
return in two years, which is not very far away, and might, without straining
the law too much in the tenant’s favour, be considered a reasonable time even
when added to the two years which had already expired. If she comes back to St
Augustine’s Mansions in 1976, she will have been absent for four years from the
date in 1972 when she became a statutory tenant, which is a shorter period than
that of the tenant’s absence in Tickner’s case. In that case the
successful defendant had become a statutory tenant of the premises in question
in January 1954. She had not lived there since June 1954. She had become a
patient in a mental hospital in August 1954 and was still living in the
hospital in 1959 when her right was challenged in the county court. When the case
was heard, it was uncertain when, if ever, she would return, yet her claim to
be the statutory tenant succeeded. If a decision could be given in Mrs Hearn’s
favour consistently with the Act, I do not see why Mrs Boyd’s claim to the
protection of the Act should fail. I would only add that in my judgment a
reasonable time means one which is reasonable having regard to the policy of
the Act, which is to provide people in this country with homes where they can
live. I would dismiss the appeal.
Both
respondents were awarded costs.