Landlord and tenant — Whether person sharing rented accommodation with tenant had subtenancy or a licence
On May 9 1988
a Mr Roberts became the tenant of 5 Charles Close, Abergavenny, under a written
tenancy agreement. Mr Roberts went into occupation of the premises, and used one
bedroom, accompanied by the appellant and her two children, who used two
bedrooms. The kitchen, bathroom and living accommodation were
the premises belonged to her. On January 3 1989 the respondent council served
notice of intention to seek possession on Mr Roberts and on March 15 commenced
possession proceedings for arrears of rent. He gave notice to quit on March 17.
On April 17 1989 the council obtained an order for possession of the premises.
The proceedings were subsequently amended to join the appellant as a defendant.
An order for possession was then granted on December 16 1992 the trial judge
deciding that the appellant had been a licensee of Mr Roberts and not a subtenant.
premises together under a tenancy granted to one but not the other of them,
each occupying a bedroom or bedrooms and the remainder of the premises being
shared between them, the court will be slow to infer a common intention that
the one who is not the tenant shall be the subtenant of the one who is. The
natural inference is that what is intended is a contractual house-sharing
arrangement under the tenancy of one of them. The inference is greatly
strengthened where, as in the present case, there is a written agreement
between the landlord and tenant and none between the tenant and the other
occupant. The evidence found by the trial judge pointed to the appellant being
no more than the lodger or licensee of Mr Roberts. On the basis of the entirely
informal nature of the arrangement there was no intention between them to
create the relationship of landlord and tenant.
The following
case is referred to in this report.
Street
v Mountford [1985] AC 809; [1985] 2 WLR 877;
[1985] 2 All ER 289; [1985] 1 EGLR 128; (1985) 274 EG 821, HL; reversing (1984)
49 P&CR 324; 271 EG 1153, CA
This was an
appeal by the appellant, Mrs Angela Marlog, from the decision of Judge Glyn
Morgan, who on December 16 1992 gave judgment for the respondents. Monmouth
Borough Council, in their proceedings for an order for possession of premises
occupied by the appellant.
David
Watkinson (instructed by Duncan Forbes, of Crickhowell) appeared for the
appellant; Owen Prys Lewis (instructed by the solicitor to Monmouth Borough
Council) represented the respondents.
Giving
judgment, NOURSE LJ said: Notwithstanding Mr David Watkinson’s
well-sustained argument this appeal fails, in my judgment.
Before May
1988 Mr David Roberts was the tenant of 10 Charles Close, Abergavenny, Gwent.
Living there with him, though not cohabiting with him, was the appellant, Mrs
Angela Marlog. Living with her were her two daughters, then aged six and nearly
four. On May 9 1988 Mr Roberts became the tenant of a three-bedroom house
nearby, 5 Charles Close, Abergavenny, Gwent, under a written tenancy agreement
made between the plaintiffs, Monmouth Borough Council, and himself.
I refer to the
judge’s findings:
On 9th May
1988 the council tenancy of 5 Charles Close was granted to Mr Roberts by the
plaintiff council and Mr Roberts moved into that house, accompanied by Mrs
Marlog and her two children. Mr Roberts occupied one bedroom: Mrs Marlog and
the children occupied the other two bedrooms. The kitchen, bathroom and living
accommodation were shared.
Mrs Marlog
paid £20 a week to Mr Roberts. Apart from the contents of Mr Roberts’ bedroom,
most if not all of the rest of the contents of the house belonged to Mrs Marlog
. . .
On October 21
1988 the appellant applied to the plaintiffs for housing benefit in respect of
her occupation of 5 Charles Close. That application was refused and a review
which was requested by solicitors subsequently was at that stage unsuccessful.
On January 3 1989, the plaintiffs served notice of intention to seek possession
on Mr Roberts as tenant of the property. On March 15 1989, the plaintiffs
commenced possession proceedings against him in Newport (Gwent) County Court,
the arrears of rent then claimed being about £450. Two days later, on March 17
1989, Mr Roberts himself gave notice to quit to the plaintiffs expiring on
April 17.
On April 10
1989, the plaintiffs obtained an order for possession of the property against
Mr Roberts. He then left the property and at some stage afterwards the
appellant’s husband, Mr Marlog, moved in to live there with her. On July 4
1989, as a result of a claim by the appellant that she was entitled to remain
in occupation as against the plaintiffs, she was joined as a defendant to the
proceedings. Amended particulars of claim and a defence were subsequently
served. On December 16 1992 the proceedings came on for trial before Judge Glyn
Morgan, sitting at Newport. He made an order for possession in 28 days and an
order for the plaintiffs to recover against the appellant a sum of just over
£1,750 in respect of rent or mesne profits, depending on how you looked at it.
The appellant
now appeals to this court. The judge delivered a long and careful judgment in
which he considered the matter and the authorities, in particular Street v
Mountford [1985] AC 809*, in some depth.
*Editor’s
note: Also reported at [1985] 1 EGLR 128.
I will read
the decisive part of his judgment in full:
There is no
evidence, in my judgment, that there was ever any intention as between Mr
Roberts and Mrs Marlog to create any legal relationship. Mr Roberts’ notice of
giving up his tenancy does not mention Mrs Marlog or the fact that she was a
subtenant. The fact that she paid money to Mr Roberts, usually meeting him at
the Post Office or the rent office, in my judgment, was merely an indication
that she was contributing towards the payment of Mr Roberts’ rent in respect of
her occupation of the house.
On the
question of whether Mrs Marlog was a lodger or licensee or subtenant of Mr
Roberts, I accept the submissions made on behalf of the plaintiff and I reject
those made on behalf of Mrs Marlog. All the evidence, in my judgment, points to
Mrs Marlog being no more than a lodger or licensee of Mr Roberts and I hold her
so to have been at all material times. She had no interest in law in any part
of the premises on the date when Mr Roberts’ tenancy came to an end. She had
not become a secure tenant, and any right which she had to occupy the premises
came to an end.
So the
question for the judge, and the question for us, is the familiar one. Was the
appellant a subtenant of Mr Roberts or a licensee? I say that the question is a familiar one,
although it does not appear to be familiar in the context of a claim made by an
alleged subtenant against a tenant. Clearly, the principles which govern the
case are those of Street v Mountford so far as they apply to the
facts which are before us. But in order to judge their application we must look
first at the facts of that case, for which purpose reference is best made to
the report of the decision of this court (1984) 49 P&CR 324† .
† Editor’s
note: Also reported at (1984) 271 EG 1153.
As appears
from the judgment of Slade LJ at p325, the property there was a building
divided into ‘flatlets’ and managed by an agent on behalf of the plaintiff, Mr
Street. At the material time the defendant had the occupation, under a written
agreement, of two furnished rooms in the building and also of a shower and
lavatory. That gave her the occupation of the whole of the top floor except for
an attic room. There is no suggestion that Mr Street was living on the premises
himself. I observe at once that those facts are entirely different from those
with which we are presented in this case. Even speeches as authoritative as
those of the House of Lords in Street v Mountford must be read in the light of
the particular facts which were under review.
Returning to
the decisive passage in the judge’s judgment, I refer first to his statement
that there was no evidence that there was ever any intention as between Mr
Roberts and the appellant to create any legal relationship. That must be read
in the light of his subsequent finding that the appellant was intended to be a
lodger or licensee. What he really meant was that there was no evidence that
there was ever any intention as between Mr Roberts and the appellant to create
a subtenancy.
Mr Watkinson criticises
the weight put by the judge, first, on the fact that Mr Roberts’ notice to quit
did not mention Mrs Marlog or a subtenancy in her favour and, second, on the
fact that she paid money to Mr Roberts as a contribution towards the payment
his rent. I would be prepared to agree that neither of those factors is of any
great significance in the case.
Mr Watkinson
also criticises the judge for attaching weight to Mrs Marlog’s own description
of herself as a lodger of Mr Roberts. Again I think that there is force in that
criticism. It is clear that labels attached by one or other party to the
relationship are by no means decisive. However, I do not believe that this is a
case of labels at all. It looks from the transcript of the appellant’s evidence
that what she said was of no particular significance in the determination of
the precise relationship.
The only other
point on labels arises out of the form which the appellant filled up on October
21 1988 in making her application for housing benefit and in which, in answer
to a printed question, she and her husband stated to be subtenants. The judge
said that he did not consider that the contents of that document supported the
assertion that the appellant was a subtenant of Mr Roberts. I entirely agree.
The judge did not, on the other hand, say that it in any way supported the
assertion that she was a licensee. If he had, I would have agreed with that as
well. I think that that form is entirely without any probative value in the
case.
I repeat that,
what the judge was really saying, and what he was entitled to say, was that
there was no evidence that there was ever any intention as between Mr Roberts
and the appellant to create a subtenancy. Bearing in mind the nature of the
arrangement under which they went into occupation of the property, it would be
impossible for the court to infer, on the evidence as a whole, that any such
relationship had been created.
Where two
persons move into residential premises together under a tenancy granted to one
but not the other of them, each occupying a bedroom or bedrooms and the
remainder of the premises being shared between them, the court will be slow to
infer a common intention that the one who is not the tenant shall be the
subtenant of the one who is. The natural inference is that what is intended is
a contractual house-sharing arrangement under the tenancy of one of them. The
inference is greatly strengthened where, as here, there is a written agreement
between the landlord and the tenant and none between the tenant and the other
occupant.
Mr Watkinson
submitted that the judge had effectively found that the appellant had exclusive
occupation or exclusive possession, it matters not which, of her two bedrooms.
I think it clear from the judge’s observation that all the evidence pointed to
the appellant being no more than the lodger or licensee of Mr Roberts that he
did not make any such finding. At the most, he found that that there was an
exclusive right to use or enjoy the two bedrooms, but not one which prevented
Mr Roberts from entering the rooms if he wished to do so on some reasonable
ground. Moreover, on the basis of the entirely informal nature of the
arrangement it would be simply ludicrous to suggest that there had been an
intention between these two persons to create the relationship of landlord and
tenant.
For these
reasons, I think that Judge Glyn Morgan came to an entirely correct decision
and I would affirm it accordingly.
WALL J agreed and did not add anything.
Appeal
dismissed.