Landlord and tenant — Matrimonial home — Shorthold tenancy — Liability of husband for rent after breakdown of marriage, wife remaining in occupation — Matrimonial Homes Act 1983, Housing Act 1980, Rent Act 1977 — Appeal by husband from county court decision that he remained liable for rent — Court of Appeal’s view that he became a statutory tenant
husband had been granted a protected shorthold tenancy for one year — The
tenancy agreement provided that the tenant could terminate the tenancy by one
month’s notice (which was in accordance with section 53 of the Housing Act
1980) — After the agreement had been running for about four months only, the
marriage broke down and the husband moved out of the matrimonial home, leaving
the wife and children in occupation — It appeared that another man moved in
with the wife — The husband wished to terminate the tenancy and gave a notice
to that effect — However, nothing changed on the ground: the keys were not
delivered up and the wife remained in occupation — For some time matters were
allowed to drift, but eventually the landlord served a notice to quit on the
husband and later commenced proceedings in the county court claiming, inter
alia, for arrears of rent — The assistant recorder awarded the landlord £1,233
in respect of arrears, holding that the husband had not taken effective steps
to divest himself of the tenancy and consequently remained liable for rent —
The husband appealed
of Appeal the argument was more complicated and the court found the answer in a
combination of the Matrimonial Homes Act 1983, the Housing Act 1980, the Rent
Act 1977 and the common law — As a result of section 1(6) of the 1983 Act the
occupation by the wife in the present case was to be treated throughout as
possession by the husband, but he was entitled under the Act to apply for
relief
such an application — The Court of Appeal, by reading section 1(6) of the 1983
Act together with section 2(1) (a) of the 1977 Act, held that the notice given
by the husband to terminate his protected shorthold tenancy in fact converted
it into a statutory tenancy, so that he continued to be liable for the rent —
The court rejected a submission on behalf of the husband that section 1(6) of
the 1983 Act could not be read together with section 2(1)(a) of the 1977 Act in
this way, because deemed occupation by the estranged spouse under the 1983 Act
was not the same thing as actual occupation as his residence within the meaning
of the 1977 Act — It may be noted that the court’s rejection of this submission
was not made ‘with total confidence’ — The court, however, had no doubt, in
reliance on old Rent Act authorities, about deciding that the tenant had not
effectively divested himself of his tenancy by giving notice while the house
was still occupied by his wife — Reference was made to Brown v Draper and Old
Gate Estates Ltd v Alexander — The principles of the latter decision continued to
apply — Accordingly the husband was not entitled to claim that he had ceased to
be liable for the rent — (It should be mentioned that the couple were
eventually divorced, but this had no relevance to the present proceedings) —
Appeal dismissed
The following
cases are referred to in this report.
Brown v Draper [1944] KB 309
Henderson v Squire (1869) LR 4 QB 170; 10
B&S 183; 38 LT QB 73; 19 LT 601
Old Gate Estates Ltd v Alexander [1950] 1
KB 311; [1949] 2 All ER 822; (1949) 65 TLR 719; [1949] EGD 301; 154 EG 422, CA
Reynolds v Bannerman [1922] 1 KB 719; 127
LT 300; 38 TLR 509; 20 LGR 439
This was an
appeal by William Glyn Renfree, the defendant, from a decision of Mr Assistant
Recorder Jenkins, at Llanelli County Court, holding the defendant liable for
rent in respect of the matrimonial home at 53 Felinfoel Road, Llanelli, which
had continued to be occupied by his wife after he left. The landlord, the
plaintiff below and the present respondent, was Mrs Barbara Griffiths.
Christopher
Vosper (instructed by Williams Gomer & Co, of Llanelli) appeared on behalf
of the appellant; Patrick Griffiths (instructed by Rodericks, of Llanelli)
represented the respondent.
Giving
judgment, KERR LJ said: This is an appeal from a judgment of Mr Assistant
Recorder Jenkins of September 21 1988 in the Llanelli County Court whereby he
held that the defendant, Mr Renfree, remained liable for rent in respect of the
matrimonial home at 53 Felinfoel Road, Llanelli, which continued to be occupied
by his wife after he had left.
On January 1
1987 the plaintiff/landlord, who was acting at all times through her husband as
her agent, granted a shorthold tenancy to the defendant for one year at a rent
of £140 per month. We are told without objection, although it does not appear
from the documents, that it was a furnished letting.
Clause 2(v) of
the tenancy agreement provided that the defendant was:
Not to assign the benefit of this
Agreement or sub-let or take any lodgers or paying guests but [was] to keep the
property in the occupation of the tenant and the members of the tenant’s family
only as a private residence.
Clause 4
provided that the tenancy might be determined by one month’s written notice to
the landlord at any time, which, in the circumstances of this case, is to the
same effect as section 53 of the Housing Act 1980. Clause 6 of the agreement
provided expressly that it was entered into between the landlord and the tenant
under the provisions of that Act and that the tenancy was a protected shorthold
tenancy.
In April 1987,
when this agreement had run for about four months, the marriage broke down and
the defendant/tenant moved out to other premises in Porthcawl, but his wife
remained in occupation. Their children also remained in occupation, at any rate
for some time, but it is said that subsequently they moved out and that one of
them joined him. It is also said, as I accept for these purposes, that another
man moved in with the wife at some time thereafter.
On May 6 1987,
after a meeting between the defendant and the plaintiff’s husband at which the
defendant made it clear that he wanted to terminate the tenancy, the defendant
wrote to him as follows:
Further to our conversation in your
office, I would like to terminate my tenancy at the above address. The keys
will be returned to your office not later than May 31.
and he asked to be informed how much he
would owe up to that date.
Although that
was not a full month’s notice it has been treated as a proper notice under
clause 3(3) of the agreement and section 53 of the Act in combination with the
meeting to which I have referred.
On May 18 the
landlord replied as follows:
I refer to your letter of May 6 and
accept your Notice for May 31 on which date I expect to receive Vacant
Possession, all keys and an opportunity with you to inspect the property and to
find it in good clean condition.
Then he gave details of the amount that
would be owing up to May 31.
However,
nothing changed on the ground. The keys were not delivered up; the defendant’s
wife remained in possession and another man moved in with her.
On July 20 the
landlord wrote again to say that nothing had happened pursuant to his letter of
May 18 and indicated that he would accept possession on July 31, subject to
having the arrears of rent paid off. He had been to the property and found it
in bad condition and still occupied. He made in clear that he could not accept
that the defendant had already given up possession.
The next
finding in the judgment was as follows:
In evidence, the plaintiff’s husband (who
acted throughout as the plaintiff’s agent) said that the situation was then
allowed to drift. The defendant sought verbally that his wife leave the
dwelling-house. The plaintiff took no steps against the wife. The defendant
took no action under the Matrimonial Homes Act 1983.
Thereafter the
landlord served a formal notice to quit on December 12 1987, purporting to
terminate the tenancy on March 12 1988. However, that had no effect and the
situation remained as before. Finally on June 7 1988 the plaintiff began
proceedings for possession, arrears of rent and mesne profits. These are the
proceedings with which we are concerned.
The plaintiff
had been receiving something on account of rent by way of housing benefit,
presumably at the instance of the wife, for which he gave credit in the calculation
of the sum to which he said he was entitled up to the institution of the
possession proceedings. The figures do not matter, since it is conceded that if
the tenancy remained in existence as against the defendant/tenant after May 31
1987, then it remained in being until July 1988 and that the amount of rent for
which the tenant would then be liable, which remained unpaid after giving
credits for the housing benefit, was £1,233.33. That is the sum which was
claimed by the landlord and for which he recovered judgment against the tenant.
The tenant now
appeals against that decision. Effectively what Mr Vosper says on his behalf is
that the notice of May 6 1987 terminated the tenancy as from May 31 1987, so
that thereafter the defendant ceased to be liable for any rent. Mr Vosper
accepts that the defendant still remained liable, despite the notice, to give
vacant possession of the premises. He also accepts that the landlord never
obtained vacant possession. He therefore has to concede that the tenant never gave
vacant possession. But he says that that does not affect the conclusion that
the tenancy, as such, had come to an end. He submits that the landlord’s only
right was to bring an action for damages for trespass, or possibly for mesne
profits, consequential upon what he says was the effective termination of the
tenancy, but that he has not done so. He also submits that once one is in the
area of a claim for damages, or perhaps mesne profits, the landlord is under an
obligation to mitigate his loss and to act reasonably. Accordingly, he submits
that this action was improperly constituted by merely claiming rent. A claim
for damages could have been resisted on the ground that the landlord had failed
to mitigate his loss by not taking proceedings earlier.
For the
purposes of submitting that the landlord’s right sounds in damages and not in a
claim for rent, Mr Vosper relied on Henderson v Squire (1869) LR
4 QB 170, and Reynolds v Bannerman [1922] 1 KB 719. Those are
both cases concerning subtenants, who of course had an interest in the nature
of an estate in the property and who remained in possession of part of the
premises in their own right after the tenant had purported to terminate their
subtenancy. In both those cases what was under discussion was a landlord’s
claim for damages, and it is on this that Mr Vosper relies. Thus, in the second
case the landlord failed because the subtenant was a protected tenant who could
not be
damages were held to be recoverable.
The assistant
recorder rightly did not accept that these cases were analogous. He took the
view that this was a letting to the family, as he put it, and that the fact
that the wife, and at least for some time the children, remained there had the
effect that the tenant was to that extent still in occupation. Above all, he
concluded that on the facts that tenant had not done enought to divest himself
of the tenancy merely by asking his wife to leave. He therefore distinguished Reynolds
v Bannerman.
The case was
argued before him on these lines more or less as merely raising an issue of
fact, whether the tenant had done enough in the circumstances to divest himself
of the tenancy effectively when he had taken no real steps to get his wife to
leave the premises. On that basis the assistant recorder held that the notice
of May 6 1987 was ineffective. He said:
Here the defendant said he would give the
key and vacant possession by a stated date. This he did not do. Therefore there
was no determination of the tenancy. The notice was ineffective; the tenancy
continued and so did the obligation to pay rent.
I am not
persuaded by Mr Vosper that that conclusion was erroneous on the limited
argument before the court below. But having now heard Mr Griffiths on behalf of
the landlord it seems to me that the conclusion is indeed perfectly correct,
although as a matter of law one gets to it by a more complicated statutory
route. In that regard the case is of some importance. It would be strange if a
landlord in the position of this landlord, not knowing precisely what the
matrimonial situation is, but unable to get possession save by instituting
proceedings for trespass, had to forgo his rent. As Mr Griffiths points out,
throughout the relevant period the tenant and his wife remained married. There
was a divorce some time in July 1988; the tenant said in evidence that he could
not remember precisely when, or evidently whether it was the decree nisi or the
decree absolute. For the present purposes that does not matter, since at all
times Mrs Renfree was in occupation of the premises as the defendant’s wife; or
spouse, to use the language of the Matrimonial Homes Act 1983.
I therefore
turn to what I have referred to as the statutory route which Mr Griffiths
indicated to us. Section 1(1) of the 1983 Act is in the following terms,
omitting irrelevant provisions:
Where one spouse is entitled to occupy a
dwelling-house by virtue of a . . . contract or by virtue of any enactment
giving him or her the right to remain in occupation, and the other spouse is
not so entitled, . . . the spouse not so entitled shall have the following
rights in this Act referred to as ‘rights of occupation’
I need not read what follows; it is well
known.
However, the
Act goes on to provide that both spouses may apply to the court for certain
relief under subsection (2). Subsection (3) provides that the court may
thereupon make such order as it thinks just and reasonable having regard to the
conduct of the spouses in relation to each other; and, without prejudice to the
generality of the foregoing provisions:
(c) may impose on either spouse obligations as to
the . . . discharge of any liabilities in respect of the dwelling-house.
It therefore
follows that if Mr Renfree had wished to put an end to his continuing liability
for rent, if it existed, he could have sought to do so under that provision.
The primary question, however, is whether he remained liable for rent unless
and until he took such a step, which he never did.
The answer to
that is to be found in a combination of the Matrimonial Homes Act, the Housing
Act 1980, the Rent Act 1977, and at common law. It seems to me that both the
statutory and the common law routes lead to the same result.
Turning first
to the statutes, section 1(6) of the Matrimonial Homes Act 1983 provides as
follows as far as material:
A spouse’s occupation by virtue of this
section shall, for the purposes of . . . the Rent Act 1977 . . . be treated as
possession by the other spouse.
The effect of
that provision is therefore that Mrs Renfree’s occupation of this house
throughout the period with which we are concerned is to be treated as
possession by the defendant.
One then goes
to Part II of the Housing Act 1980, which deals with protected shorthold
tenancies, the nature of the tenancy in this case. Section 51 provides that
sections 53 to 55 modify the operation of the Rent Act 1977 in relation to
protected shorthold tenancies as defined in section 52. Section 52(1) defines
protected shorthold tenancies as follows:
A protected shorthold tenancy is a
protected tenancy granted after the commencement of this section which is
granted for a term certain of [inter alia] not less than one year
The term
‘protected tenancy’ is of course a term of art by virtue of section 1 of the
Rent Act 1977. It therefore follows that a protected shorthold tenancy is a
type of tenancy which has been engrafted on to protected tenancies under the
Rent Act 1977, with many of the same characteristics, but of course subject to
landlord’s rights of termination which are far wider than under the normal Rent
Act tenancies. We are not concerned with those, but it is to be noted that
section 2(1)(a) of the Rent Act 1977 provides as follows:
Subject to this Part of the Act —
(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.
What Mr
Griffiths submits is that even if the assistant recorder were wrong on the
facts in concluding that the defendant had not done enough in relation to the
occupation of the house by his wife to divest himself of this tenancy, nevertheless
the effect of the notice terminating it on May 31 was no more than to turn his
shorthold tenancy into a statutory tenancy, under which he remained, of course,
liable for rent. With regard to the requirement that this provision applies
only if and so long as he occupies the dwelling-house as his residence, Mr
Griffiths points to section 1(6) of the Matrimonial Homes Act 1983, which I
have already read, whereby Mrs Renfree’s occupation of the house was to be
treated as possession of it by the defendant.
Accordingly,
if section 1(6) of the 1983 Act can properly be read as having the same effect
in substance as section 2(1)(a) of the Rent Act 1977, it must follow
that the defendant remained liable, notwithstanding the notice which he gave,
because he remained a statutory tenant.
Mr Vosper does
not accept that these two provisions cover the same ground. He points out that
section 1(6) refers to the wife’s occupation being treated as possession by the
husband, whereas section 2(1)(a) of the 1977 Act refers to the husband
occupying the dwelling-house as his residence.
We have not
been taken through the statutory paths which may explain that difference of
language. Neither counsel has investigated the history of these statutory
provisions, because the possibility of a difference of substance had not been
appreciated. I am therefore not in a position to say with total confidence that
the two expressions are entirely synonymous. But I have no doubt, on the basis
of some of the authorities to which Mr Griffiths also referred us, that the
defendant has not effectively divested himself of this tenancy by giving this
notice while the house was still occupied by his wife.
The
authorities are conveniently collected together in a note to section 2 of the
Rent Act 1977 on p 1770 of the 1988 County Court Practice, under the
heading ‘If and so long as he occupies the dwelling-house as his residence’. In
particular we were referred to Brown v Draper [1944] KB 309,
which justifies its summary in the note as follows:
Where a wife occupies a dwelling-house of
which her husband is the tenant, her occupation is treated as that of the
husband even when he has deserted her and has no intention of returning.
Similarly, there was a decision of this
court in Old Gate Estates Ltd v Alexander [1950] 1 KB 311, which
is summarised in the note as follows:
So long as the marriage subsists the
tenant cannot end the tenancy so as to deprive the wife of occupation of the
matrimonial home.
In that case there was a matrimonial
dispute. The husband, the tenant of the premises, left, but his wife and
furniture remained. He then wrote to the landlord that he had given up
possession of the flat to them and that he was enclosing the key, but in fact
he did not send it. He ceased to pay rent and subsequently handed to the
landlords for their use a document whereby he purported to revoke any authority
or leave which he might at any time have given to his wife to occupy the flat.
That, in effect, was more than the tenant/defendant did in the present case,
where he merely asked or told his wife to leave. After these events the
landlord sued for rent in an action for possession and succeeded, because the
tenant had not divested himself of the tenancy.
Denning LJ, as
he then was, said at p 319:
If a statutory tenant goes out of
occupation, leaving lodgers or subtenants or no one in the house, he ceases to
be entitled to the protection of the Rent Restriction Acts; but he does not, in
my opinion, lose the protection if he goes out, leaving his wife and furniture
there. The reason is because the wife, so long as she is behaving herself
properly, has a very special position in the matrimonial home. She is not the
subtenant or licensee of the husband. It is his duty to provide a roof over her
head. He is not entitled to tell her to go without seeing that she has a proper
place to which to go. He is not entitled to turn her out, without an order of
the court . . . Even if she stays there against his will, she is lawfully
there; and so long as she is lawfully there the house remains within the Rent
Restriction Acts after he leaves, just as it does after he is dead.
That is now old-fashioned language
because of the change in the statutory position. But effectively it remains the
position under the provisions of the Matrimonial Homes Act 1983 to which I have
already referred.
Accordingly, I
am not persuaded that the difference in language between section 1(6) of that
Act and section 2(1)(a) of the Rent Act 1977 is of any significance,
even though we have not been taken through the statutory history. It seems to
me plain that the principle of that decision continues to apply and that there
is nothing in this case which entitled the defendant to contend that he ceased
to be liable for the rent. If it is said that a divorce might take a long time,
then the answer is that the tenant/husband can divest himself of the liability
for rent by applying under section 1(3)(c), in which case the court has
power to order the wife to discharge the husband’s liability in respect of the
premises if the court thinks fit to do so. That did not happen in the present
case. Accordingly, in the result I agree with the decision below and would
dismiss this appeal.
Agreeing,
EWBANK J said: The tenant’s wife’s occupation of the matrimonial home in this
case is, in my judgment, to be treated as occupation by the tenant.
Accordingly, when the shorthold tenancy came to an end a statutory tenancy was
created and the tenant continued to be liable to pay.
In my view the
appeal fails.
The appeal was dismissed with costs in
the Court of Appeal and below; order as to costs not to be enforced without
leave of the court; legal aid taxation of defendant’s costs ordered.