Housing Act 1980, section 30 — Succession to a ‘secure tenancy’ — Landlords’ appeal against county court judge’s decision refusing possession order on the ground that the deceased tenant’s daughter had satisfied the statutory conditions for succession — Whether daughter occupied the dwelling-house as her only or principal home at the time of her father’s death and whether she had resided with him throughout the period of 12 months ending with his death — Despite some conflict of evidence the county court judge held that the daughter had fulfilled both conditions — No ground for holding that the judge had erred in law or misdirected himself — Appeal dismissed
This was an
appeal by the Governors of the Peabody Donation Fund from a decision of Judge
Hayman at the West London County Court refusing a possession order to the Fund
as plaintiffs in an action for possession of a flat at 132 Wellington Flats,
Ebury Bridge Road, London SW1. The defendant in the action, respondent to the
present appeal, was Mrs Maree Grant.
Michael Bloch
(instructed by Bridges, Sawtell & Adams) appeared on behalf of the
appellants; Steven Weddle (instructed by Child & Child) represented the
respondent.
Giving
judgment, DONALDSON LJ said: This is an appeal by landlords against a judgment
of His Honour Judge Hayman given in the West London County Court on February 9
1982 whereby he refused the landlords possession of premises known as 132
Wellington Flats, Ebury Bridge Road, London SW1.
The landlords,
the plaintiffs in the action, are the Governors of the Peabody Donation Fund, a
well-known charitable organisation who own property in the Ebury Bridge Road
area, which they let out to appropriate tenants. One of those tenants was a Mr
Charles Murphy, who became the tenant of this particular flat in February 1978.
He remained a tenant of that flat until June 1981, when he died. The defendant
is his daughter, and the issue before the learned judge was, quite simply,
whether she was entitled to succeed to the tenancy of Mr Charles Murphy under
section 30 of the Housing Act 1980.
That section
provides that where a secure tenancy is a periodic tenancy and the tenant dies,
if there is a person qualified to succeed him, that person succeeds provided he
was not himself a successor tenant.
The sole issue
before the learned judge was whether Mrs Grant, the defendant, qualified as a
successor under section 30(2) of the Act, which is in these terms:
A person is
qualified to succeed the tenant under a secure tenancy if he occupied the
dwelling-house as his only or principal home at the time of the tenant’s death
and either — (a) he is the tenant’s spouse; or (b) he is another member of the
tenant’s family and has resided with the tenant throughout the period of twelve
months ending with the tenant’s death.
The learned
county court judge, rightly in my judgment, held that the burden was on the
tenant to bring herself within the terms of that section. He further went on to
hold that the tenant had to show two things: she had to show that this flat was
her only or principal home at the time of Mr Charles Murphy’s death and that
she was not only a member of Mr Charles Murphy’s family but had resided with
him throughout the period of 12 months ending with the tenant’s death.
The facts were
somewhat unusual. The defendant had two relevant children, aged about 17 and
13. Prior to 1979 she lived with her mother, her stepfather and the two
children at Salisbury. Later the elder child went to live with godparents and
seems to have dropped out of the picture. The younger daughter continued to
live at Salisbury.
Mr Charles
Murphy became ill and the family rallied round. The daughter, the defendant in
the action, Mrs Grant, progressively moved up to live at this flat — not for
every day of the week, but for a large proportion of the week; that was her
case. She said that there was friction at the mother’s and stepfather’s home,
and that she came to regard the flat in London as being her home.
The learned
judge was faced with that evidence, elaborated of course, and also evidence
called by the landlords from neighbours which suggested that Mrs Grant was not
in fact living at the flat, or alternatively not living there very much,
because they had failed to see her. There was additional evidence in the form
of what was called a census form which had been filled in by Mr Charles Murphy,
which had failed to mention his daughter as being a person living at the flat.
This is all
the essential raw material of a type which any county court judge has to
consider in a case of this sort. There were discrepancies; the learned judge
admitted that there were substantial discrepancies in the evidence, but he was
satisfied that in substance the evidence that was given by the defendant was
correct; he said that the alternative view was that not only was she committing
perjury but that every member of her family was committing perjury, which he
declined to believe. He thought that the witnesses who gave evidence for the
landlord were equally to be believed in the sense that they, like the defendant
and her witnesses, were seeking to give a true and accurate account of what had
occurred, but he said that he thought they were mistaken in as much as they
might not have seen the defendant at the flat much more than they in fact
remembered because of the hours that she was keeping although he did not accept
that the hours were quite those which the defendant herself was putting
forward. It was a typical case involving conflicts of fact, which in my
judgment could only be resolved by the judge who saw and heard the witnesses of
fact.
The learned
judge concluded on the evidence that from the beginning of 1980 the defendant
was staying four nights a week at the flat; he found that by that time all her
clothes and her books were at the flat, and the learned judge said that he
accepted her evidence that she had come to regard it as her home. He went on to
find that the defendant occupied the flat as her home at the time of her
father’s death, but he said that if by any chance he was wrong about that and
if the defendant’s mother’s home at Salisbury could be regarded as being the
defendant’s home by reason of the fact that the daughter was still living
there, the London flat was to regarded as the defendant’s principal home.
He then went
on to consider the second question, whether the defendant resided with her
father throughout the period of 12 months prior to his death. He accepted that
‘residing with’ was different from, or could be distinguished from, ‘residing
at’ a particular premises, and he said that he accepted that it involved
spending a significant part of one’s time with the person with whom one was
said to be residing. The learned judge was satisfied that there was a
sufficient measure of, as he put it, factual community of family living and
companionship to constitute residence with Mr Charles Murphy.
For my part I
am quite unable to say that the learned judge erred in any way in the
conclusions which he reached. Whether I would have reached the same conclusions
of fact, I have no idea. In saying that, I am not for one moment criticising
the learned judge, but this is supremely a case where one needed to see and
hear the witnesses in order to arrive at the factual truth. I have not heard or
seen the witnesses, and I fully accept the learned judge’s conclusion; there
were no traces that I can see that he erred in law or misdirected himself in
any respect, and I would dismiss the appeal.
Agreeing, SIR
DAVID CAIRNS said: This case was treated with the utmost care by the learned
judge. It was, I think, a borderline case. He reviewed the evidence in detail;
he accepted the evidence of the defendant in essential respects, though not in
relation to every particular of her evidence. At the end of the day he made two
essential findings of fact, the finding that the defendant occupied the flat as
her home at the time of her father’s death and the finding that she resided
with her father throughout the period of 12 months prior to his death.
In effect, the
argument put before us by Mr Bloch, very persuasively and with no waste of
time, was that the learned judge was using the word ‘home’ in some wrong sense,
and presumably using the word ‘reside’ in some wrong sense too. I do not think
he was. I do not think there was anything to indicate that he was not using
those two words correctly.
I am quite
satisfied that upon the evidence that he had heard and upon the findings that
he made as to primary facts, which are not challenged, there was ample material
for him to arrive at his conclusions, and that there is nothing that this court
can do but dismiss the appeal.
The appeal
was dismissed with costs; legal aid taxation was ordered.
