Rent Act 1977, section 12 and Schedule 2 — Resident landlord — Condition in section 12 requiring continuous occupation as a residence of a dwelling-house in the building other than the dwelling-house let to the relevant tenant — Provision in para 5 of Schedule 2 applying to the resident landlord the case law as to the nature and degree of residence required to support a statutory tenancy — Whether a person not physically in occupation on the material date (in this case August 14 1974) could be treated as occupying the dwelling-house as a residence so as to qualify as a resident landlord — Possible application of the doctrines of animus possidendi and corpus possessionis
in this case, who sought to recover possession of a first-floor back room in a
house, sued as administratrix of the estate of her mother — The plaintiff
derived her title to sue from para 2A of Schedule 2 and the issue was whether
she could establish that her mother had been a resident landlord within the
statutory provisions on August 14 1974 — If so, it followed from the facts and
the provisions that the tenant would not be protected — The plaintiff claimed
that her mother’s occupation of a first-floor front room in the property
brought her within the resident landlord exception — The evidence at the trial,
however, showed that in fact the plaintiff’s mother had not been living in any
part of the house as her residence from a date before October 1973 until after
1977, a period of some four years — The question then was whether, by the
application of the old statutory tenancy case law, imported by para 5 of
Schedule 2, she could nevertheless be treated as residing in the house
throughout that period — The county court judge thought that she could — He
dismissed as merely informal arrangements evidence that various other people
had occupied the first-floor front room in the mother’s absence — He found that
there was an intention on her part to return to reside in the room, an animus
possidendi, and he evidently assumed that there was the necessary corpus
possessionis, although he did not make a finding to that effect — The tenant
appealed
Appeal, after reviewing a number of authorities, decided that the judge’s
conclusion that there had been no abandonment by the mother of her intention to
reside between 1973 and 1977 could not on the evidence be sustained — The
evidence indicated that there had been lettings, not merely informal
arrangements or licences, during her absence — The evidence did not support an
animus possidendi — Nor did it support a corpus possessionis — Such furniture
as was left in the first-floor front room was no more than was required for
letting at a furnished rent — There were no personal possessions, such as
books, pictures or ornaments, indicating that the plaintiff’s mother was
continuing to treat the room as her home — The plaintiff had not proved that at
the material time her mother was a resident landlord under
allowed
The following
cases are referred to in this report.
Brown v Brash [1948] 2 KB 247; [1948] 1
All ER 922, CA
Leslie & Co Ltd v Cumming [1926] 2 KB
417
Lyons v Caffery (1982) 266 EG 213,
[1983] 1 EGLR 102
Skinner v Geary [1931] 2 KB 546, CA
This was an
appeal by the tenant, Joseph O’Brien, from a possession order made by Judge
Krikler, at Willesden County Court, in favour of the landlord, Mrs Mitzie
Jackson, in respect of the first-floor back room at 34 Macfarlane Road, London
W12, occupied by Mr O’Brien. (There was no issue in regard to D Pekic, who was
named as the first defendant and against whom judgment for possession in
respect of an attic room had been recovered by the plaintiff.)
Miss Ann
McAllister (instructed by Alan Edwards & Co) appeared on behalf of the
appellant, Joseph O’Brien; Jeremy Gordon (instructed by Ronald Fletcher &
Co) represented the respondent, Mrs Jackson.
Giving
judgment, RALPH GIBSON LJ said: This is an appeal from the decision of His
Honour Judge Krikler made in Willesden County Court on September 6 1988. By his
order he directed that the plaintiff, Mrs Jackson, recover possession of the
first-floor back room of 34 Macfarlane Road, London W12, from the defendant, Mr
Joseph O’Brien.
Mrs Jackson
sued as administratrix of the estate of her mother, Mrs Jovanka Stojsavljevic,
deceased. The deceased has been called ‘Mrs Jovanka’ throughout the case and I
shall so refer to her. She died on December 5 1983. Mrs Jackson sought
possession in order to sell the house. It is, of course, worth much more if she
can sell with vacant possession. Mr O’Brien claims the protection of the Rent
Acts. The case turned upon the issue whether on August 14 1974 Mrs Jovanka was
then a resident landlord at 34 Macfarlane Road. His Honour Judge Krikler held
that she was. Mr O’Brien, who had asserted that she was not, now asks this
court to reverse Judge Krikler’s decision.
There was an
alternative ground for possession, namely non-payment of rent, but that has
been disposed of and the point disappeared from the case.
There is also
another defendant, Mr Pekic, who lived in the attic room, but judgment was
recovered for possession against him by the plaintiff and no issue turned upon
his presence in the court below or in this court.
On the basic
legal position there was no dispute. Mr Joseph O’Brien was granted a weekly
tenancy of the furnished first-floor back room at the property in October 1973.
He would be entitled to a protected tenancy of that room unless he is excluded
from that protection by section 12 of the Rent Act 1977. Put shortly, Mr
O’Brien’s tenancy is not a protected tenancy at any time if from August 14 1974
— that date being applied because he was granted a furnished tenancy in 1973 —
Mrs Jovanka occupied as her residence another dwelling-house which formed part
of 34 Macfarlane Road and if at all times since that date Mrs Jovanka continued
to occupy her part. The case made at the trial for Mrs Jackson, the plaintiff,
was that the part occupied by Mrs Jovanka was at all times the first-floor
front room.
Whether Mrs
Jovanka occupied that front room as her residence is to be decided by the same
test as that relevant to whether a person is a statutory tenant: see para 5 of
Schedule 2 to the 1977 Act, which provides that, for the purposes of section
12,
a person shall be treated as occupying a
dwelling-house as his residence if, so far as the nature of the case allows, he
fulfils the same conditions as, by virtue of section 2(3) of this Act, are
required to be fulfilled by a statutory tenant of a dwelling-house.
The reference
to the phrase ‘so far as the nature of the case allows’ prompted the suggestion
by Mr Gordon (who has appeared for the plaintiff/respondent) that it was
intended to admit some degree of discretion if the operation of the rule was
seen in a particular case to work harshly. For my part, I understand the words
to be an acknowledgment by the draftsman that some allowance or adjustment may
have to be made in applying to the concept of a resident landlord, who is given
by Parliament exemption from full protection for his tenants, principles
developed in the concept of a resident tenant, who is given by Parliament
protection in his occupation of his residence.
Para 5 refers
to section 2(3) of the Act. That subsection is as follows:
In subsection 1(a) above and in
Part I of Schedule 1, the phrase ‘if and so long as he occupies the
dwelling-house as his residence’ shall be construed as it was immediately
before the commencement of this Act (that is to say, in accordance with section
3 (2) of the Rent Act 1968).
That subsection (as appears from the note
at p 416 of Halsbury’s Statutes, 4th ed, vol 23) provided:
In paragraph (a) of subsection (1)
above and in Schedule 1 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.
Those
qualifications are, in short, set out in decisions of the courts based upon the
statutory purpose of the legislation, including the decision of this court in Skinner
v Geary [1931] 2 KB 546. The effect of those authorities is summarised
in Halsbury’s Laws, 4th ed, vol 27, paras 591-593.
The issues at
trial became reduced to these questions: was Mrs Jovanka at the material time
in actual occupation as her residence of the first-floor front room; and if she
was not then in occupation of that room, or of any other part of the building,
as her residence, was there such intention on her part to return to occupation
of it, coupled with some visible manifestation of that intention, as is
sufficient for her to be treated in law as a resident landlord in that
room? Proof that she had resided in the
building before 1973 and that she had returned to reside in it in 1978 until
her death would not deprive the defendant of the protected tenancy which he had
acquired if Mrs Jovanka was not a resident landlord in August 1974.
Before coming
to the issues in this case it is necessary to state the facts in some detail.
The property, 34 Macfarlane Road, is a two-storey house with a three-storey
back addition. There are three rooms on the ground floor, three on the first
floor and one attic room on the top. The three rooms on the first floor are described
as two bedrooms and a kitchen. The two bedrooms are described as respectively
front and back. A Mrs Giggs, who was born in the house in 1898, continued to
live there until 1977. Her husband had become tenant in 1921. In 1945 her son
bought the freehold. He lived in the upper part, Mrs Giggs continued to live on
the ground floor. In 1954 the son sold the freehold to Mrs Jovanka’s husband.
Mrs Giggs remained as tenant of the ground floor. Mrs Jovanka’s husband died in
1956. Mrs Jovanka had three children: Mrs Jackson, the plaintiff, who lived in
London W10, five minutes’ bus ride away, and a daughter and a son who both
lived in London. Mrs Jackson lived at 34 Macfarlane Road until 1963. The
brother and sister seem to have moved out about the same time.
In 1977 there
was difficulty between Mrs Jovanka and Mrs Giggs and Mrs Budden, the sister of
Mrs Giggs who was living with her on the ground floor. In the result both moved
out and obtained accommodation from the council. The circumstances were
investigated by the tenancy relations officer of the London Borough of
Hammersmith. Statements were taken. Mrs Jovanka was prosecuted and convicted on
September 11 1978 of the offence of unlawfully depriving Mrs Budden, on October
17 1977, of certain premises, two rooms and the kitchen on the ground floor at
34 Macfarlane Road, contrary to section 1 (2) of the Protection from Eviction
Act 1977. At the trial of this action in the court below, the statements in the
possession of Mr Southgate, the tenancy relations officer, were put in and read
as evidence without objection.
The case for
the plaintiff at trial was based on the evidence of Mrs Jackson, Mrs Jovanka’s
daughter. The plaintiff’s pleaded case had been that Mrs Jovanka had occupied
the whole house over all the relevant period, save for the attic room occupied
by Mr Pekic and the first-floor back room occupied by the defendant; and that
the defendant had not moved in until 1979 to 1980. At the hearing the
plaintiff’s case had to be modified. It was acknowledged that the defendant’s
tenancy had commenced in about October 1973. He had many documents to
corroborate that he was living there from that date. And it was acknowledged
that Mrs Jovanka was not at any material time occupying more than the
first-floor front room as her residence.
Mrs Jackson’s
evidence can be summarised thus: Mrs Jovanka had always lived in the house in
the first-floor front room. There were
her other daughter and with Mrs Jackson. She always left her furniture and some
belongings there. She was often ill. She was seriously ill in July 1978 with a
cerebral haemorrhage and Mrs Jovanka was then for a time in hospital. On
getting out of hospital and after some time in the homes of her children, Mrs
Jovanka moved back into 34 Macfarlane Road late in 1978 and remained there
until she died. From then on Mrs Jackson saw her mother twice a day. She had no
recollection of Mr Cyril O’Brien, the defendant’s brother, and so far as she
knew, no one at any time occupied the first-floor front room apart from her
mother.
There was, in
effect, no dispute that from the end of 1978 Mrs Jovanka resided in the
first-floor front room. If the defendant’s tenancy had been granted in 1979, as
the plaintiff’s pleaded case had asserted, there would have been a good claim
under section 12 of the Act. But once it was clear that the defendant’s tenancy
was granted in 1973 the question arose whether Mrs Jovanka had been a resident
landlord on August 14 1974 when the relevant provisions of the statute took
effect.
The problem
for the plaintiff at the trial was that her case that Mrs Jovanka had at all
times occupied the first-floor front room was unsustainable. The defendant’s
evidence was that in 1973 Mrs Jovanka was not living in the house. He described
various other people occupying the first-floor front room until, in 1974, his
brother, Cyril O’Brien, moved in with a cousin, Mr Kinsella. Mr Kinsella left
in April 1977. Cyril O’Brien was locked out by Mrs Jovanka in September 1977.
Cyril O’Brien
gave evidence. He confirmed what the defendant had said, except that it was in
1975 that he moved in. He did not know where Mrs Jovanka lived then. It was not
in 34 Macfarlane Road. In October 1977 Mrs Jovanka changed the lock on his
room. He then had to stay with the defendant for two weeks and Mrs Jovanka had
then found him alternative accommodation. She had moved back when he went out.
The statements
produced by the tenancy relations officer afforded much corroboration of the
account given by the defendant and Mr Cyril O’Brien. Mrs Budden’s signed
statement of October 17 1977 recounted a period of years from 1972 when Mrs
Jovanka had on occasions shouted at her and Mrs Griggs to ‘leave her house.’ There was then the passage: ‘In 1974, I think
it was, Mrs Jovanka left the house and moved away. She did not return to live
there again until about two or three weeks ago.’ There was also recorded the complaint of
Cyril O’Brien of his being locked out in October 1977. He had, he said, been
occupying the first-floor front room from July 1975. He was locked out on
October 8 and his possessions moved out on the 9th. The statement of a Mr
Phillips made on October 10 1977 recorded that, according to Mr Cyril O’Brien, he
had agreed for his belongings to be moved because Mrs Jovanka had said that she
was going to have his room redecorated. Mrs Jovanka would not answer the
allegation that she had changed the lock on his room. Mr Cyril O’Brien was
advised to seek his civil remedy, but he was reluctant to see a solicitor
because he might well be leaving the country.
Before Judge
Krikler it was submitted for the defendant that the onus lay upon the plaintiff
to prove that Mrs Jovanka was a resident landlord at the material time, namely
August 14 1974. That was accepted by Judge Krikler and has not been questioned
by Mr Gordon. It is, I think, clearly right.
It was common
ground also that if Mrs Jovanka was not in actual occupation of any part of 34
Macfarlane Road at the material time the plaintiff could only prove that Mrs
Jovanka is nevertheless to be treated in law as having been in occupation of a
dwelling-house within 34 Macfarlane Road as her residence if she could show an
intention on the part of Mrs Jovanka to return to reside in it and that her
inward intention was clothed with some sufficient visible manifestation of it:
see Brown v Brash [1948] 2 KB 247. It seems that Judge Krikler
reached the conclusion that this test was satisfied. The steps in his reasoning
can be summarised as follows:
(i) Mrs Jovanka’s intention had to be deduced
from the history and the surrounding circumstances.
(ii) There were periods of time when she was not
physically in occupation of the first-floor front room: as when she was in
hospital, or other periods of ill-health, or when staying with her daughters
and her son. But that was no abandonment of home.
(iii) A person can absent himself from his home
without its ceasing to be his residence. It depends upon his intention and ‘the
interim arrangement made’.
(iv) The evidence of Mrs Jackson and of Mrs
Zabavnik, a friend and close neighbour, was to the effect that throughout the
years Mrs Jovanka’s home was at 34 Macfarlane Road. That, in the judge’s view,
was ‘strong evidence’. Most important was the evidence of Dr Marks. Mrs Jovanka
had been his patient since 1958. He had visited her on isolated occasions
before 1978. He was unable to give any dates because his documents had been
returned to where they belonged within the recording system of the National
Health Service. He had, after she was severely ill in 1978, visited her more
frequently. He had never been told by Mrs Jovanka of any address other than 34
Macfarlane Road. In the judge’s view, if she had changed her address the doctor
would have been told.
(v) As to who occupied the first-floor front room
it was ‘undoubtedly occupied by Mrs Jovanka but also used by others’, and ‘No
relinquishing of the first-floor front room took place notwithstanding the
parting with possession of that room and that others lived there’.
(vi) The arrangement under which Mr Cyril O’Brien
and Mr Kinsella occupied the room was ‘informal’. Mrs Jovanka never regarded Mr
Cyril O’Brien as having any entitlement to the room because she changed the
lock and turned him out. Since the local authority had prosecuted with
reference to the exclusion of Mrs Budden and not with reference to the turning
out of Mr Cyril O’Brien, they did not regard his occupation in the same light
as that of Mrs Budden.
(vii) Mrs Jovanka never regarded Mr Cyril O’Brien
as anything more than a licensee. She never abandoned her intention to reside
at 34 Macfarlane Road from 1955 onwards and she was resident on August 14 1974
for the purposes of the Act notwithstanding her absence.
Miss McAllister,
in a careful and most well-sustained submission for the defendant, argued that
the learned judge had misdirected himself in various respects. I shall
concentrate on three of her submissions.
(a) That he failed to have regard to the fact
that, upon the evidence, Mrs Jovanka’s intention cannot have been to continue
to reside in 34 Macfarlane Road during 1973 to 1977 when she let to others and
to Mr Cyril O’Brien the only room in which she had there resided.
(b) He wrongly had regard to matters of no probative
force, namely Mrs Jovanka’s supposed view that Cyril O’Brien was a licensee
only; to the supposed informality of her arrangements with Cyril O’Brien, and
to the supposed view of the local authority as to the nature of his occupation.
(c) The learned judge failed to make any finding
as to what could or did constitute the outward manifestation (sometimes called
the corpus possessionis) of Mrs Jovanka’s intention to return to reside
in the first-floor front room.
Mr Gordon
acknowledged that he could not support the judge’s reference to the view of the
local authority based upon their decision not to prosecute for the eviction of
Mr Cyril O’Brien. He was, I am sure, correct in making that concession. It is
clear from the file that the actual decision was probably based upon the
uncertainty of the availability of the evidence of Mr Cyril O’Brien. There was,
in any event, in my view, no reason to look for probative force in anything so
uncertain as a discretionary decision not to prosecute in one out of two cases
when the facts which occurred were evident from the documents produced. For the
rest Mr Gordon submitted that the decision of the learned judge was one which
was open to him on the evidence and that it should not be disturbed.
For my part I
have reached the conclusion, for the reasons which follow, that Miss
McAllister’s main submissions are to be accepted and that this appeal should be
allowed.
I start with
the fact that the onus lay on the plaintiff to prove that Mrs Jovanka on August
14 1974 ‘occupied as her residence’ a dwelling-house forming part of 34
Macfarlane Road and at all times thereafter so occupied it. Nothing turns upon
the situation after her death, which is covered by the provisions of para 2A of
Schedule 2 to the Act.
Judge Krikler
made no specific finding as to who was occupying the front room in 1974, but he
did find that Mrs Jovanka was not in it. He did not expressly reject the
evidence of the defendant who said that Mrs Jovanka was not living there in
1973; that a Mr Murray lived there until Mrs Jovanka locked him out; and that
Mrs Jovanka did not use the room before Mr Cyril O’Brien occupied it in 1975.
There was, however, no reason, so far as I can see, to reject this evidence.
The defendant’s evidence was in several important matters
was nothing to set against it, since the evidence of Mrs Jackson on this aspect
of the case was clearly mistaken. The facts are, accordingly, that Mrs Jovanka
was not living in any part of the property as her residence from a date before
October 1973 until after September 1977, a period of some four years.
What is the
principle of law which may permit a court to say that a landlord who is not
actually residing in any part of the building when the tenancy is granted, and
does not actually reside in any part for a period of some three years
thereafter, is nevertheless to be treated in law as residing in the property
throughout that time? The principle was
developed with reference to tenants losing or retaining the status of statutory
tenant. It has been applied by statute to a landlord’s losing or retaining the
status of resident landlord. It is summarised in Halsbury’s Laws, vol
27, para 592 — subject, of course, to reference to the cases there cited — as
follows:
A statutory tenant will lose the benefit
of the Rent Acts if he abandons the premises without any intention of returning
or in circumstances such that the prospect of his returning is remote. The onus
of proving that the tenant has gone out of residence is in the first place, on
the landlord, but where the tenant’s absence is sufficiently long or continuous
to raise the inference that he has ceased to occupy the premises as his
residence, the onus shifts to the tenant to rebut this inference by showing
both (1) that he had throughout an intention to return, and (2) some outward
and visible sign of that intention, for example occupation by a caretaker or
licensee or the presence of the tenant’s furniture.
In Skinner
v Geary [1931] 2 KB 546 the defendant, who lived in another house,
resisted a claim for possession on the ground that he was still a statutory
tenant of the property in which he had permitted his sister to live. Scrutton
LJ at p 561 said:
A non-occupying tenant was in my opinion
never within the precincts of the Acts, which were dealing only with an
occupying tenant who had a right to stay in and not be turned out. This case is
to be decided on the principle that the Acts do not apply to a person who is
not personally occupying the house and who has no intention of returning to it.
I except, of course, such a case as that to which I have already referred —
namely, of temporary absence, the best instance of which is that of a sea
captain who may be away for months but who intends to return, and whose wife
and family occupy the house during his absence.
Slesser LJ
agreed with Scrutton LJ and he said (at p 567):
I agree that the appeal fails on grounds
similar to those stated by Scrutton LJ, whose language in Haskins v Lewis
seems to me to cover this case exactly. He there said: ‘He [the tenant] appears
to me to come within the fundamental principle of the Act that it is to protect
a resident in a dwelling-house, not to protect a person who is not resident in
a dwelling-house, but is making money by subletting it’
. . . Mr
Safford has relied on the words used by Scrutton LJ, ‘but is making money by
subletting it’. As I read Haskins v Lewis the majority of the
court would have laid down the same principle even if the tenant had not been
making money by subletting the premises, but had merely parted with the
occupation as has been done in this case.
That case, as I understand the law,
states the basic principle upon which the position of a statutory tenant has
been based, namely, to secure to the tenant, who for some reason is not in
physical occupation, that protection which, upon the true construction of the
statute, Parliament must be taken to have intended the tenant to have. Scrutton
LJ referred to the example of the sea captain absent for a while while his wife
and family occupy the house: but how far was that principle of necessary
latitude to be carried?
In Brown
v Brash [1948] 2 KB 247 the tenant was sentenced to a term of
imprisonment and was thus perforce absent. He left his mistress in occupation,
but after a while she left. The county court judge in effect held that the
defendant’s persisting intention to return was sufficient to retain for him the
protection of the Rent Acts. It was submitted on appeal to this court that it
was not necessary to prove that a licensee or caretaker or furniture was left
on the premises and that such matters were relevant only as evidence of the
intention to return. That was rejected. Asquith LJ, giving the judgment of the
court in a well-known passage, stated the principle to be applied. It is
sufficient for the purposes of this case to read a short passage of it,
starting at p 254:
(3) But we are of opinion that neither in
principle nor on the authorities can this
— an intention on his part to return —
be enough. 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, as affirmed in
Keeves v Dean and Skinner v Geary.
(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 homecoming. 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 ‘animus possidendi’ but a ‘corpus
possessionis’, namely, some 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 opinion that the
protection, artificially prolonged by their presence, ceases, whether the
tenant wills or desires such removal or not.
As Staughton
LJ pointed out in argument, Asquith LJ said that the effect of protracted
absence may be averted if he clothes his inward intention with some
visible sign of it; not that it will thereby be averted. In every case, in my
view, the question is whether the tenant has demonstrated such continuing
occupation of the dwelling-house as his residence as satisfies that concept
within the meaning and policy of the Act.
Reference
should be made now to Lyons v Caffery, which is reported at
(1982) 266 EG 213, [1983] 1 EGLR 102. There, before going abroad, the landlord
had occupied the basement of his house, the basement consisting of a
bed-sitting-room, a sun-room and a kitchen, bathroom and lavatory. In his
absence his mother, who occupied a bed-sitting-room on the ground floor, let to
the tenant the basement bed-sitting-room, with shared use of the kitchen,
bathroom and lavatory. On his return, the landlord took over the ground-floor
bed-sitting-room from his mother, who went to live elsewhere. He claimed
possession of the basement room occupied by the tenant, on the ground that he
was a resident landlord. The learned judge held that there was sufficient animus
possidendi and corpus possessionis in the plaintiff to make him fall
within the definition of a person who occupied the whole basement as a
residence when the tenancy was granted to the defendant. Templeman LJ, at p
214, said:
By section 12(1)(c) of the Rent
Act 1977 the plaintiff landlord was entitled to possession of the basement
front room . . . provided that the landlord showed that the landlord occupied
as his residence another dwelling-house which also formed part of the premises
. . .
Before the grant of the tenancy, the
landlord occupied as his residence the basement front room, another basement
room known as the sun-room and the kitchen, bathroom and wc in the basement.
The landlord shared the use of the kitchen, bathroom and wc in the basement
with his mother, who occupied a room on the ground floor of the premises as her
bed-sitting-room. The tenant was granted a tenancy of the basement front room
with the use of the basement bathroom [etc] with the landlord’s mother. The
landlord thus had occupied the same dwelling-house as the tenant and not
another dwelling-house, unless the landlord’s occupation of the sun-room was
occupation of another dwelling-house.
The learned lord justice went on to hold
that it could not be, and held therefore that the appeal should be allowed.
In that case
it was regarded as clear that a landlord cannot be regarded as a resident
landlord, occupying as his residence the same premises as those which he has
let to the defendant tenant. It was not argued on appeal there that a
continuing intention to return to that part of the building which has been let
to the defendant could constitute that part as also being the part in which the
landlord continued to reside. It was, I think, not argued because it is plainly
unarguable. It would make nonsense of the statutory provision. But in this case
Mr Gordon must argue that as against Mr Joseph O’Brien (the defendant) Mrs
Jovanka is to be treated as having been occupying as her residence the
first-floor front room which she had let to another person, and later to Mr Cyril
O’Brien, simply because she had a continuing intention to occupy it at some
later date.
Now it is true
that it has been held that the grant by a tenant of a subletting of the whole
of the premises let to him does not necessarily and by itself cause a statutory
tenancy to come to an end. In Leslie & Co Ltd v Cumming
[1926] 2 KB 417 a furnished letting of the whole of the premises by the
statutory tenant had come to an end before the plaintiff’s claim for possession
was made and only two rooms were then let furnished. The defendant was in
possession by his family and furniture in the premises. MacKinnon J, at p 424,
said:
. . . but [counsel] does seek to say that
a letting furnished for, I suppose, however short a period after the tenant
became a statutory tenant took the house out of the category of a protected
house and put it into the category of an unprotected house. It is only
necessary to consider what startling results that contention would lead to in
order to see that that argument must be wrong. For instance, if there be, as
well there may be, a person in occupation of a house at Henley-on-Thames as
what is called a statutory tenant, and supposing the owner of that house
discovered that the statutory tenant let the premises furnished for the regatta
week in 1922, could he now, by virtue of that use of the house for a week four
years ago, come to the Court and say: Give me possession of the premises,
because by virtue of that temporary subletting so long ago the premises ceased
to be protected.
It is clear,
in my judgment, from the passages cited that the concept of a tenant not losing
the protection of the Rent Acts for his occupation of the dwelling-house as his
residence, although he is not himself in physical occupation, was designed to
ensure protection notwithstanding those absences which are consistent with the
tenant’s retaining, and intending to retain, the dwelling-house as his
residence, and not where, for example, the tenant’s absence is because he is
merely making money by subletting: see Slesser LJ in Skinner v Geary,
p 567.
It is also
clear to my mind that the continuing intention to return to occupy the premises
at some later date is not by itself sufficient to constitute occupation of the
dwelling-house as his residence if the tenant has left no sufficient visible
sign of that intention. It may be that in some circumstances furniture will
serve as such a visible sign, particularly if the tenant leaves also those
personal possessions such as books, pictures and ornaments, which are capable
of indicating that a tenant is still treating the premises as his home. There
is no principle of law which says that the mere presence of furniture,
consistent with an ordinary furnished letting at market rent, could serve for
that purpose.
I return now
to the grounds for the decision of the learned judge. In my judgment, the
conclusion that there was no abandonment by Mrs Jovanka of her intention to
reside at 34 Macfarlane Road between 1973 and 1977 cannot be sustained. The
reference to informality in the arrangement under which Mr Cyril O’Brien
occupied the first-floor front room for more than two years showed, I think, a
misapprehension of the facts. There was nothing more informal about the
arrangement than, I suspect, most oral lettings of a furnished room. It was
submitted by Mr Gordon that we should regard the arrangement as amounting not
to a tenancy but a licence. I cannot accept that submission. On the evidence it
was, in my judgment, plainly a tenancy. The premises to be let and the rent
were agreed. There was nothing more formal in the arrangement between Mrs
Jovanka and the defendant, which constituted a valid letting.
Next, the
reference to Mrs Jovanka regarding Mr Cyril O’Brien as a licensee because she
turned him out also seems to me to be misconceived. She granted a tenancy, ie
exclusive occupation of the first-floor front room at a rent, to Mr Cyril
O’Brien. She clearly had no understanding of the limits imposed by law upon the
rights of a landlord, as was demonstrated by her conduct towards Mrs Giggs and
Mrs Budden. Mr Giggs’ right of occupation was in existence when Mrs Jovanka’s
husband bought the house. Her conduct in evicting Mr Cyril O’Brien showed
nothing more than that she wished to get him out. Notwithstanding the evidence
of the plaintiff, the neighbour and the doctor, viewing her conduct over the
period from 1973 to 1977 seems to me to result in her conduct being more
consistent with an intention during those years not to reside in the house than
with a continuing intention to reside there. There was no hint of an
explanation why she should for a period of three years or more let the only
room which she had herself occupied other than the simple purpose to obtain the
rent paid by those who occupied it.
Next, if she
had a continuing intention to reside in that room, when Mrs Jovanka let the
first-floor front room, the rest of the house being let off to others, there
was nothing whatever in the nature of a visible sign of that intention. There
was furniture in the room and it belonged to her, but there is nothing to show
that it was other than such furniture as is required for a room to be let at a
furnished rent. There is no evidence of anything in the way of personal
possessions left in any part of the building during that time. Nothing, of
course, was said or agreed to constitute Mr Cyril O’Brien her caretaker or
representative, or to show that he was anything other than a furnished tenant
paying a market rent.
For these
reasons I would hold that the plaintiff did not prove that at the material time
Mrs Jovanka was a resident landlord within section 12 of the Act, but that the
contrary was proved on the evidence. I would therefore allow the appeal and set
aside the order for possession.
STAUGHTON LJ
agreed and did not add anything.
The appeal was allowed with costs in the
Court of Appeal and below; the order as to costs not to be enforced without
further order. Leave to appeal to the House of Lords was refused.
