Landlord and tenant — Secure tenancy — Surrender by operation of law — Matrimonial Homes Act 1983 — Whether landlord’s right to possession on a surrender frustrated by 1983 Act rights of spouse remaining in occupation
In 1990 the respondent housing association granted
Mrs C a secure weekly tenancy of the subject maisonette, the occupation of
which she shared with her cohabitee, the appellant. In July 1995 Mrs C and the
appellant married. In September 1996 Mrs C and her children left the
maisonette. In January 1997 Mrs C returned the keys to the maisonette and the
housing association requested the appellant to leave. In proceedings for
possession against the appellant, the assistant recorder held that it was
possible for Mrs C to surrender the tenancy notwithstanding that her husband,
who had asserted his right to occupy and pay rent under the Matrimonial Homes
Act 1983, was in occupation; he also held that the tenancy had in fact been
surrendered. The appellant appealed.
dismissed.
contractual tenancy by operation of law in February 1997 when Mrs C did all
that she could in compliance with the housing association’s stipulation that
she should vacate the premises and return the keys.
Matrimonial Homes Act 1983 to restrict Mrs C’s right to terminate her
contractual relationship with the housing association and nothing within that
section to vest in the appellant indefinite rights of occupation of the former
matrimonial home only terminable by an order under section 1(2)(a) or
otherwise within the court’s jurisdiction derived from the suit. The tenancy
was surrendered for valuable consideration and, accordingly, the appellant had
no right to register a Class F land charge under section 2(1) and 2(7) of the
Land Charges Act 1972. The provisions of section 2(6) of the Matrimonial Homes
Act 1983 did not create rights but provided the
against a landlord.
The following cases are
referred to in this report.
Brent London Borough Council v Sharma (1993) 25 HLR 257, CA
Hoggett v Hoggett
(1980) 39 P&CR 121, CA
Middleton v Baldock
[1950] 1 KB 657; [1950] 1 All ER 708, CA
Old Gate Estates Ltd v Alexander [1950] 1 KB 311; [1949] 2 All ER 822; 65 TLR 719
This was an appeal by the
defendant, Donald Campbell, from a decision of Mr Assistant Recorder Warren QC,
who determined two preliminary issues in possession proceedings by the
plaintiff, Sanctuary Housing Association.
Julia Smart (instructed by Martin Shepherd &
Co, of Enfield) appeared for the appellant; Anthony Tanney (instructed by
Stafford Young Jones) represented the respondent.
Giving the
judgment of the court, THORPE LJ
said: This appeal raises ultimately the following legal question: where a
contractual tenant surrenders the tenancy by operation of law, leaving a
co-occupier in possession, is the landlord’s ordinary right to possession
against the co-occupier in possession frustrated if the co‑occupiers were
spouses and the co-occupier in possession asserts the rights bestowed by
section 1(1)(a) of the Matrimonial Homes Act 1983? It is conceded that
had the appellant not been married to the tenant he would have no defence to
the respondent’s possession action. So, the answer to the question must lie in
family law.
The facts of the case are comparatively simple and
not in dispute. On 9 April 1990 the respondent granted to Claudia Shaw a secure
weekly tenancy of a three-bedroom maisonette at 3 Belmont Road, London N15. It
seems that, from the outset, she occupied the premises not only with her three
children, but also with her cohabitee Donald Campbell. The couple married on
22
children left, expelled, as Mrs Campbell asserts, by her husband’s violence. On
11
appellant’s behalf, introducing him as the tenant’s husband and offering to pay
the rent. The respondent refused this offer saying that it would require vacant
possession when its tenant was rehoused. On 16 January Mrs Campbell wrote to
the respondent saying that she was rehoused, that she was giving up her
tenancy, but was not sure what to do about the keys. The respondent informed
her that she must first empty the maisonette of all her possessions before
returning the keys, and that until such time as the keys were returned she
would remain liable for the rent. In her reply, Mrs Campbell explained that she
could not empty the premises because the appellant was still in possession and
that he had changed the locks. With that letter she enclosed her keys and asked
the respondent to give her the opportunity to clear any of her possessions left
behind by the appellant when he vacated. On receipt of Mrs Campbell’s letter
the respondent wrote to the appellant requiring him to leave. On his behalf,
the Tottenham Legal Advice Centre asserted his right to occupy and pay rent
under the Matrimonial Homes Act 1983.
On 10 March the respondent issued its summons for
possession in Edmonton County Court. On 11 June the appellant filed his defence
and almost a year later, on 1
Mr
agreed facts. The first preliminary point was whether, on the facts, it was
possible for Mrs Campbell to surrender the tenancy notwithstanding that her
husband was at all material times in occupation. The second preliminary point,
if the first were answered in the affirmative, was whether Mrs Campbell in fact
surrendered the tenancy. In a reserved judgment dated 8
assistant recorder answered both questions in the affirmative. However, the
order subsequently drawn on 8 August 1998 gave the appellant leave to appeal,
and it is that appeal that we now determine.
I say at once that I am satisfied that the
assistant recorder was correct to answer the preliminary points in the
affirmative. I would only criticise his first conclusion of express surrender.
Mr Anthony Tanney, for the respondent, realistically conceded that he could not
support that finding. Accordingly, the argument in this court concentrated on
whether or not on the agreed facts there had been a surrender of the contractual
tenancy by operation of law.
Mr Tanney relied upon the very clear judgment of
Scott LJ in Brent London Borough Council v Sharma (1993) 25 HLR
257. At p260 Scott
Surrender of a tenancy by operation of law may
come about in a variety of different circumstances. In the present case the
tenant… left the premises… of which she was tenant, making it clear, by the
events attending her departure, by the contents of the document which she sent
to the council and which was received by the council on November 29 1988, and
by her occupation of other premises in Milton Keynes, that she was abandoning
her tenancy. By her conduct over the period following her departure from (the property)
and including the time in the early months of 1989 when she was living with her
two children in Milton Keynes, she represented unequivocally that she was
treating her tenancy of… (the property) as at an end.
Of course, unilateral conduct by one of the
parties to a tenancy cannot by itself bring an end to the tenancy. Surrender by
operation of law requires unequivocal conduct by both landlord and tenant…
The council’s conduct in December 1988 may,
correctly viewed, have been equivocal. But, in my judgment, by February 1989 at
the latest the council’s conduct had become entirely unequivocal. If both
tenant and landlord are unequivocally treating a tenancy as at an end, the law
has no business to insist on its continuance.
In the present case there was nothing equivocal in
the conduct of either the respondent or Mrs Campbell. A fortiori I
conclude that on the agreed facts there was a surrender of the contractual
tenancy by operation of law in February 1997, when Mrs Campbell, having
rehoused herself, did all that she could in compliance with the respondent’s
stipulation that she should vacate the premises and return the keys. Her
husband, a violent man as she asserts, was in possession and denying her
access. Unless it was incumbent upon her to seek either an ouster order in
divorce proceedings or an order terminating his rights of occupation under the
Matrimonial Homes Act 1983, there was nothing more that she could have done.
Miss Julia Smart, for the appellant, concedes that
had her client not married Mrs Campbell in 1995, he would have had no defence
to the respondent’s claim for possession. Her appeal depends substantially, if
not entirely, upon the right conferred upon her client by the Matrimonial Homes
Act 1983 in consequence of the marriage. In the definition of that right, she
relies upon the decision of this court in Hoggett v Hoggett
(1980) 39 P&CR 121. Superficially, and as set out in the headnote, that
authority supports her propositions that, for there to be a surrender by
operation of law, there must be a delivery of possession by the tenant, and
that the tenant can make no valid surrender if the tenant’s spouse remains in
occupation of the house. Mr Tanney, for the respondent, submits that that
proposition arrives in the headnote by concession and without argument to the
contrary, being derived from two cases decided in 1949 under the common law
preceding the Matrimonial Homes Act 1967: Old Gate Estates Ltd v Alexander
[1950] 1 KB 311 and Middleton v Baldock [1950] 1 KB 657. The
concession is recorded in the judgment of Sir David Cairns at p127 where he
said:
The most significant factor to be considered,
however, in my judgment, is whether or not the judge was entitled to hold that
the wife remained in occupation despite being physically absent from the house,
because it is accepted on behalf of the appellant that, if she did, there can
have been no valid surrender: see Oldgate Estates Ltd v Alexander
and Middleton v Baldock.
It is important to emphasise that all three cases
considered the position of separated spouses whose matrimonial home prior to
separation had been the subject of tenancies controlled by the Rent Acts, under
which members of the tenant’s family enjoyed statutory protection, only being
subject to eviction in very restricted circumstances. The contractual tenancy
in the present appeal was simply a secure tenancy within the meaning of the
Housing Act 1985, the effect of which is only to restrict the circumstances in
which the landlord may pursue unilateral termination. I conclude that the dicta
of Denning LJ in the 1949 cases upon which Miss Smart relies are of no
surviving force in relation to a contractual secure tenancy where the rights of
the spouses are controlled by the Matrimonial Homes Act 1983. The foundation
upon which Denning LJ constructed his opinion was surely the right of the
deserted wife to be housed and maintained. In the circumstances of this case, a
parallel right could hardly be asserted by the appellant. I also conclude that
Mr Tanney is right in his submission that the authority of Hoggett v Hoggett,
which seemingly supports Miss Smart’s submissions, is distinguishable. Not only
was the court there concerned with a Rent Act tenancy, but the wide proposition
in the headnote is clearly founded on the appellant’s concession, which in turn
is founded upon the 1949 authorities. Furthermore, counsel’s concession was
almost inevitably made in the circumstances of that case where there had
clearly been neither actual nor ostensible delivery up of possession. The court
found the husband’s case to be a sham. While pretending that he had vacated the
matrimonial home, in reality he remained in control of it.
So, in determining Miss Smart’s submissions, it is
necessary to go to the statute from which she submits that her client’s rights
derive. Indeed, in my judgment, any right that her client may have to
continuing occupation of the maisonette must derive from that provision or from
some other provision of family law. Section 1 of the Matrimonial Homes Act 1983
is the relevant provision. It re-enacts the Matrimonial Homes Act 1967 and has
in turn itself been re-enacted in the Family Law Act 1996. Section 1(1)
provides:
Where one spouse is entitled to occupy a dwelling
house by virtue of a beneficial estate or interest or 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, then, subject to the provisions of this Act,
the spouse not so entitled shall have the following rights (in this Act referred
to as ‘rights of occupation’) —
(a) If in occupation, a right not to be
evicted or excluded from the dwelling house or any part thereof by the other
spouse except with the leave of the court given by an order under this section;
Miss Smart’s submission is that this enactment is
wide enough to protect her client not only from eviction or exclusion by Mrs
Campbell but also from the respondent’s otherwise lawful entitlement to
possession. She submits that the rights conferred on her client by this section
so confined Mrs Campbell’s right to terminate her contractual relationship with
the respondent that any purported surrender or termination in order to be
effective had to be preceded by an application to the court for an order
terminating the appellant’s rights under section 1(2)(a) of the statute.
She submits that Mrs Campbell’s conduct in purporting to terminate the
contractual tenancy at a time when she well knew that her husband continued in
occupation constituted a constructive eviction contrary to section 1(1)(a).
Mr Tanney, for the respondent, makes the simple
submission that any rights of occupation that the appellant derives from the
statute must be dependent upon the existence of, in this instance, a
contractual right of occupation in the other spouse. Therefore, the logical
development of Miss Smart’s submission would be that Mrs Campbell remains to
this day the tenant entitled to occupation and liable for rent despite the
surrender effected in 1997. That would be manifestly absurd.
It is perhaps surprising that there appears to be
no authority directly on the point raised by the present appeal. However, I am
of the clear opinion that there is nothing within section 1 of the Matrimonial
Homes Act 1983 to restrict Mrs Campbell’s right to terminate her contractual
relationship with the respondent and nothing within that section to vest in the
appellant indefinite rights of occupation of the former matrimonial home only
terminable by an order under section 1(2)(a) or otherwise within the
court’s jurisdiction derived from the suit.
The section is plainly intended to operate to
regulate the rights of spouses inter se. Although advised by the
Tottenham Legal Advice Centre in or after November 1996, the appellant neither
registered a Class F charge nor initiated any proceedings against Mrs Campbell
under the Matrimonial Homes Act. He sought no relief against his wife until
filing a petition for dissolution on 24
pleadings in the possession action were already closed. We were told by Miss
Smart that Mrs Campbell subsequently filed an answer but that the defended
proceedings were later compromised. However, within those proceedings the
appellant has apparently issued an application under section 37 of the
Matrimonial Causes Act 1973 to set aside Mrs Campbell’s surrender of the
tenancy. I cannot refrain from expressing concern at the extent to which public
funds have been committed to sustaining the appellant’s fight to remain in
occupation both within these proceedings brought by the respondent and within
the proceedings for dissolution.
There remains a subsidiary point in relation to
the appellant’s right to register a Class F land charge during the subsistence
of Mrs
Act 1972. It is common ground that despite the appellant’s failure to register,
the tenancy is kept alive for the purposes of preserving the charge for so long
as it would have continued had the tenancy not been surrendered, unless the
respondent gave valuable consideration for the surrender. Miss Smart, of
course, submits that the respondent did not give valuable consideration. She
says that, in reality, the surrender of a secure tenancy confers a windfall on
the landlord. The only release given by the respondent was from the future
liability to pay rent, which is no more than the effect of the surrender
itself. For the purposes of this appeal, Mr Tanney does not assert that Mrs
Campbell was released from any liabilities accrued or due at the date of
surrender. His submission is that surrender is an essentially consensual
process under which the parties invariably negotiate the basis upon which their
contractual relationship is to end. Since there will in all cases be, as a
minimum, the tenant’s release from the liability to pay future rent, he
concedes that, on his analysis, there is no such thing as a surrender of a
contractual tenancy without consideration.
Again, I prefer Mr Tanney’s submission. The
respondent made it plain that it would not release Mrs Campbell from her
continuing liability for the rent of the maisonette unless and until she
returned the maisonette to its possession in the manner stipulated. She met her
side of the bargain in so far as she was able and to the respondent’s satisfaction.
The release that it thereupon granted was effectively the price that it paid to
liberate the maisonette from her tenancy. Mr Tanney responsibly drew our
attention to the fact that this conclusion is likely to prove fatal to the
appellant’s outstanding application under section 37 of the Matrimonial Causes
Act, since subsection (4) of the section removes from the court’s review any
disposition made for valuable consideration to a person who, at the time of the
disposition, acted in relation to it in good faith and without notice of any
intention on the part of the other party to defeat the applicant’s claim for
financial relief.
By way of footnote, I record that Miss Smart has
subsequently sought to raise a new point by lodging with the court after judgment
had been reserved a further written submission. She contends that section 2(6)
of the Matrimonial Homes Act 1983 ensures that ‘the charge created by the
appellant’s rights of occupation still exists after surrender and that
surrender is subject to the charge’. Were there validity in the submission then
it would not have been too late to recognise it. But I am satisfied that there
is none. Section 2(6) does not create rights but provides the mechanics by
which rights arising from the registration of a charge operate against the
landlord.
For all these reasons, I would dismiss this
appeal.
POTTER LJ agreed and did not add anything.
Appeal dismissed.
