House occupied by family for 20 years without any formal arrangement with friendly owner–Family held licensees only, not tenants at will–Executors’ claim to possession not barred by statute
This was an
appeal by Mr John Heslop and Midland Bank Trust Co Ltd, as executors of the
late Edward Timms, from a judgment of Judge Wingate-Saul at Lambeth County
Court on August 24 1973 dismissing their claim against Mr and Mrs Robert Burns
for possession of 116 Warner Road, Camberwell, London SE5.
Mr P N Garland
QC and Mr G M Shillingford (instructed by Cameron, Kemm, Nordon & Co)
appeared for the appellants, and Mr N P Wall (instructed by V J Lissack)
represented the respondents.
Giving
judgment, STAMP LJ said that the judge had refused the executors possession on
the ground that their action was barred by the Limitation Act 1939. It was
common ground that subject to the Act, the executors owned the property, and
that the defendants had occupied it since 1954. The defendants’ case was that
from the outset they were tenants at will of Mr Timms; that no rent was ever
paid; and that by virtue of section 9 of the 1939 Act, the tenancy was
accordingly deemed to have determined on the expiration of one year from the
commencement thereof. Thereupon, they said, a right of action accrued to Mr
Timms which became barred in 1967, after 12 years, under section 4 (3) of the
Act. The judge accepted that submission. The executors claimed that there never
was a tenancy at will and that the defendants were let into occupation as mere
licensees, having no legal interest in the land. The defendants conceded that
if that were the true position the executors were not statute-barred.
Was there a
tenancy at will or a licence? Mr Timms
owned properties in Camberwell. In 1951, the defendants had recently come to
London and were living in an attic. Mr Burns was a bus conductor, and his wife,
who was expecting a child, was looking for light work. Mr Timms engaged her as
a cleaner in his office. He seemed to have become fond of her. He bought a
cottage in the neighbourhood for her and her husband to live in, and became
godfather to their daughter. A year later he moved them into a house in Love
Walk, and then in 1954 into the house in Warner Road, where they had lived ever
since. He used to visit the family regularly, sometimes twice a day. He was
extremely generous to them, paying the rates of the houses and not requiring
any rent. There was no question of either of them doing any work for him in return
for accommodation, so that no service tenancy came into issue. The judge found
as a fact that Mr Timms intended to provide a home for the family. In evidence,
Mr Burns said that the deceased said about each of the three dwelling-houses
when the defendants were in them that ‘if anything happened to him, the
premises would be left to us.’ Asked,
towards the end of her cross-examination, ‘If the property was regarded as
being yours, did it occur to you that Mr Timms was being more than usually
generous by paying all the rates, etc?’
Mrs Burns answered, ‘No, he had our company; he could come into the
house any time he wanted.’ Se said in
evidence that in 1954 the deceased told her he was buying 116 Warner Road ‘for
her,’ that he told a Salvation Army welfare officer that he had done so, and
that at one time he had said, ‘Don’t worry about the house; it’s yours.’ She was shocked when, following the death of
the deceased, she found that the property had not been left to her; and he (his
Lordship) was bound to say that he had the greatest possible sympathy for
her in that regard. On the facts before the court, however, he thought it
abundantly clear that the parties did not enter into any arrangement, far less
any arrangement intended to create a legal relationship, as to the terms on
which the defendants should occupy this property. There was no contract, no
arrangement, no statement by Mr Timms. The defendants, as he (Stamp LJ) saw it,
were allowed to move into the property and occupy it simply as a result of the
bounty of the deceased and without any arrangement as to the terms on which
they should do so. There was no evidence of any discussion whatsoever taking
place as to the terms of the occupation. It was by the effect of the deceased’s
bounty, or doubtless because of his feelings of affection for Mrs Burns, that
the home was provided.
The fact that
the deceased had already said, in relation to each of the first two houses,
that he would leave them to the defendants was no evidence that it was his
intention that the defendants should be tenants at will in the meantime rather
than licensees. Counsel for the defendants had submitted that since the
deceased intended to provide the defendants with a home, he must have intended
to give them an interest in the property. But a tenancy at will was no more apt
to achieve that purpose than a revocable personal licence to occupy the
property; and if one asked the question what interest he intended them to have,
it could only, consistently with counsel’s submission, be an interest during
the rest of the life of the deceased of such a nature as would exclude him from
any right to turn them out. No such interest was created, and he (his Lordship)
found it impossible to infer an intention on the part of the deceased to create
such a situation. In his judgment, the proper inference was that the defendants
at the outset entered into occupation of the premises as licensees and not as
tenants at will; not with a right to exclude the deceased from possession. In
the course of the debate the court had been referred to a number of passages in
judgments where the effect of exclusive possession in the determination of the
question of tenancy or licence had been discussed. As Somervell LJ had
indicated in Cobb v Lane [1952] 1 All ER 1199, the expression
‘exclusive possession’ in relation to an occupier of property might be used in
more than one sense. It might mean that the occupant occupied the premises
alone or together with his family only, and did not share them with any other
person. Such a situation was not inconsistent with the occupation being enjoyed
under a mere licence. Or the expression might be used to mean that the occupant
had a right to exclude the owner from the premises. Such a situation was
clearly more difficult to reconcile with the existence of a mere licence to
occupy, but that point did not arise here. The deceased could, as Mrs Burns
remarked, ‘come into the house any time he wanted,’ and in a conversation of
which evidence had been given she had said that he regarded the house as his
‘second home.’ The house was not to be
the defendants’ castle, but a house in which he allowed them to live.
The county
court judge had attached importance to the fact that documents had been found
among the deceased’s papers indicating that for income tax purposes he had
created a mythical tenancy of 116 Warner Road naming Mr Burns as tenant and
recording fictitious payments of rent by him. But since the defendants denied
the existence of a tenancy at a rent, and indeed it was common ground that they
never paid or agreed to pay rent, he (Stamp LJ) did not think that one was led
to the conclusion that as a result of these entries and the payment of tax, the
defendants were intended to be tenants at will. Whatever the deceased’s motives
in making up his books in the way described, the facts disclosed could not
support the inference that the defendants occupied the premises otherwise than
as licensees. The appeal should be allowed.
ROSKILL and
SCARMAN LJJ concurred, and an order was made accordingly. Execution was
directed to issue only with the leave of the county court judge.
