Landlord and tenant — Possession claim — Whether occupier a tenant — Claim to council tenancy — Conflicting indications from council — Assessments of rent rebate — Issue of rent book — Payments for ‘use and occupation’ — Suggestion that the three indicia recognised in Street v Mountford were present — Reference by council to ‘Your unlawful occupation’ and to forthcoming legal proceedings for recovery of possession — Appeal against county court judge’s possession order dismissed
dwelling-house in question had been the home for a number of years of a couple
to whom the council had granted a tenancy — Eventually the wife ceased to live
with the husband and the appellant (defendant below) moved into the house, the
idea being that the husband and the appellant
long; the husband moved out after some months and did not come back — The
appellant remained in occupation — After a break-in she had occasion to visit
the council offices and was told by an official that she had no lawful right to
reside in the premises, that an action would be taken against her if she stayed
and that any money she paid would be regarded as for use and occupation — Later
the husband’s tenancy was terminated and the appellant received a letter from the
council referring to her ‘unlawful occupation’ and confirming that legal
proceedings had been instituted — It went on to say that she would be
responsible for damages by way of use and occupation charges, stated what the
charge would be per week and mentioned the times when the council offices would
be open to receive payment — The letter ended with the sentence: ‘In making the
payments as Use and Occupation Charges this arrangement is not intended as the
creation of a tenancy or a Licence akin to a tenancy in any way whatsoever’ —
After that letter, however, the appellant applied for a rent rebate and was
assessed and reassessed under the council’s rent rebate scheme — Later she was
issued with a rent book; this was after proceedings against her for recovery of
possession had begun
court judge made a possession order — On appeal it was submitted on behalf of
the appellant that among the conflicting signals emanating from the council
there were three indicia recognised in Street v Mountford as the hallmarks
of a tenancy, the grant of permission to occupy, exclusive occupation and
regular payments referable to that occupation — The court did not accept this
interpretation — It was negated by the last sentence of the council letter
referred to above — Although there were signs that the council’s left hand did
not know what their right hand was doing, the sense of the letter was: ‘We
desire you to vacate the premises. We trust that you will do so voluntarily. If
not we shall take steps to remove you. Meanwhile we are not going to let you
remain there free of charge and to make sure that we are paid we shall expect
to receive payment at the stated rate in the stated manner until we succeed in
regaining possession’ — Such things as the issue of a rent book, which taken by
themselves might point the other way, did not prevail against the clear
evidence of the council’s attitude — The judge below had come to the right
conclusion — Appeal dismissed
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
This was an
appeal by the defendant, Beatrice Basson, against the possession order made by
Judge Finestein QC, at Bloomsbury County Court, in respect of 12 Aldsworth
Close, Amberley Estate, London W9, in favour of the plaintiffs, Westminster
City Council.
Angus J
Macpherson (instructed by Gillhams, of Willesden), appeared on behalf of the
appellant; Miss Erica Foggin (instructed by the solicitor to Westminster City
Council) represented the respondent council.
Giving
judgment, MUSTILL LJ said: This is an appeal against a possession order
made by His Honour Judge Finestein QC made in the Bloomsbury County Court on
October 1 1989. The order was in favour of Westminster City Council. The
subject-matter was council accommodation at 12 Aldsworth Close, Amberley
Estate, London W9. The defendant was Miss Beatrice Basson. The issue before the
judge was whether, as Westminster Council maintained, Miss Basson was a trespasser
or whether, as she maintained, she had since September 1985 been a tenant of
the premises or alternatively became a tenant in April 1987.
The history of
the matter is as follows. During December 1977 the council granted to a Mr and
Mrs Simpson the tenancy of the premises in question. In 1984 Mrs Simpson ceased
to live with her husband at the premises and in July 1984 the appellant moved
into those premises with Mr Simpson so they should live together as man and
wife. That relationship appears to have come to an end some months later, for
in February 1985 Mr Simpson moved out and never moved back. In September 1985
there was a break-in at the premises and various items, including items of Mr
Simpson’s furniture, were taken away. This prompted the appellant to visit the
council offices and have a conversation with Mr Merriman, a council official.
The judge at the hearing of the application for possession believed Mr
Merriman’s account of what was then said and according to the judge’s notes of
evidence Mr Merriman told the appellant that she had no right to reside in the
premises, that action would be taken if she stayed and that any money paid
would be for use and occupation. On September 23 Mr Simpson’s tenancy was
terminated and on September 27 a letter was written by the district housing
officer of Westminster Council to the appellant in the following terms:
Dear Sir/Madam
Address: 12
Aldsworth Close
I refer to
your unlawful occupation of the above accommodation and confirm that legal
proceedings have been instigated for the recovery of vacant possession of the
dwelling.
As the
previous tenancy was terminated on September 23 1985 and you have been in
occupation since this date I hold you responsible for damages by way of Use
& Occupation Charges until such time as you leave the accommodation.
The charge
per week is £30.13 and I enclose a payment card for your use in paying these
charges. The payments should be made to the office either by post or in person
at the following times:
|
Monday |
9.00 |
|
Tuesday |
9.00 |
|
Wednesday |
9.00 |
|
Friday |
9.00 |
In making the payments as Use and Occupation Charges this
arrangement is not intended as the creation of a tenancy or a Licence akin to a
tenancy in any way whatsoever.
I shall return
to this letter at a later stage, but I make two points upon it. In the first
place, although the letter stated that legal proceedings had been instigated,
in fact proceedings were not taken until more than a year later. Second, the
payment card which was enclosed with the letter was not put in evidence at the
hearing before the county court judge and we have not ourselves seen it.
After that
letter the appellant made an application to the respondents for a rebate under
their rent rebate scheme and for this purpose she completed two documents. One
was a request to her employers for them to furnish to the local authority
particulars of her earnings and the second was a verification form intended to
be completed by those employers. The appellant also completed an application
form in relation to the rent rebate. The only materiality of this, so far as I
can see, is that in the hand of some unknown person, no doubt an employee of
the council, there was written at the top of the form — ‘1st App [short for ‘application’]
commencement of tenancy.’
In due course
a rent rebate was assessed on a form designed for the internal use of the
council, which made more than one reference to the rent and also stated that
the tenancy commenced on September 23 1985. There was more than one round of
applications by the appellant for a reassessment of the rent rebate and
reassessments were indeed made. On October 3 1986, in the middle of the second
round, the council issued a possession summons and shortly after the reassessment
was made there was a conversation between an official of the plaintiff council
and the appellant in which he told her that she must vacate the premises.
Finally, in the middle of November 1986, the possession proceedings were
served. This does not seem to have made any difference to the practice of the
appellant to apply for, and of the council to grant, a rent reassessment;
indeed such a rebate reassessment was in progress when on February 9 1987 the
defence was served in the possession proceedings. Finally, in the spring of
1987 the respondents issued the appellant with a rent book. There was then a
long interval until the matter came before the county court judge with the
result which I have already described.
I now return
to the letter of September 27 1985, which has been the focal point of this
appeal. As has been recorded, it begins with the words, ‘I refer to your
unlawful occupation of the above accommodation and confirm that legal
proceedings have been instigated for the recovery of vacant possession of the
dwelling’. These words are plainly inconsistent with any notion that the
appellant was in occupation of the premises with the consent of the council. It
is, however, argued by Mr Macpherson on her behalf that the effect of the first
paragraph is nullified by what followed. I need
making administrative arrangements in advance for the payment of monetary
consideration labelled ‘Use and Occupation Charges’. That expression is an
accurate description of sums paid in respect of a tenancy. It is not apt
terminology, so the submission goes, for amounts payable by a trespasser. Thus,
it is submitted, the letter must have been intended to communicate the consent
of Westminster Council to the appellant’s continued occupation of the premises.
Accordingly, we have present all three indicia of a tenancy, recognised in Street
v Mountford*, namely the grant of permission to occupy, exclusive
occupation and regular payments referable to that occupation.
*Editor’s
note: Reported at [1985] 1 EGLR 128.
That argument
would have had at least something to commend it if the letter had not begun in
the way which I have described and if it had not ended with the words ‘In
making the payments as Use and Occupation Charges this arrangement is not
intended as the creation of a tenancy or a Licence akin to a tenancy in any way
whatsoever’. That seems to me to show plainly that the draftsman of this letter
was not using the expression ‘Use and Occupation Charges’ in a technically
correct manner. The sense of the letter is perfectly clear, particularly when
it is read against the background of the earlier conversation with Mr Merriman.
The council were saying ‘We desire you to vacate the premises. We trust that
you will do so voluntarily. If not we shall take steps to remove you. Meanwhile
we are not going to let you remain there free of charge and to make sure that
we are paid we shall expect to receive payment at the stated rate in the stated
manner until we succeed in regaining possession’. Speaking for myself, I feel
no doubt that this letter is entirely inconsistent with the proposition that
the appellant was remaining in the council premises with the consent of the
council.
Reliance was
placed on subsequent events to displace the plain inference to be drawn from
the conversation with Mr Merriman and the letter. There are, it is true,
isolated references to rent and a tenancy, but, in my view, these merely show
that one department of the council was not fully aware of what was happening in
the other departments. That this is so is clearly demonstrated by the fact that
although proceedings for possession had been taken in October 1986, the same
grounds of rent rebate applications and reassessments employing the same
terminology proceeded as if the action had never started and it seems to me impossible
to hold that at the time when the possession action was well under way the
council can possibly have intended, by the use of these isolated turns of
phrase, to convey that the character in which the appellant was in occupation
of the premises was radically different from the character which the council
were asserting in the pending proceedings. In agreement with the learned judge,
I am satisfied that nothing which happened after September 27 1985 served to
demonstrate that the letter did not mean what it said or, alternatively, that
there had in some way been a change in the character of Miss Basson’s
occupation.
There is a
separate point to which I should briefly draw attention. I have mentioned that
in April 1987 the council issued the appellant with a rent book. In the cover
of the rent book there are certain instructions for payment and conditions for
tenancy which, if taken in isolation, would have given strong support to a
contention that the appellant was indeed a tenant of the council. There is an
unfortunate degree of obscurity as to what use was made of the issue of the
rent book at the hearing before the county court judge. It was argued before us
that even if the appellant was wrong in maintaining that she had been a tenant
from the outset, the issue of the rent book marked a change in her status. I
think that is an impossible argument to maintain once it is recognised that the
rent book was issued not only after the possession action had begun but after
it had reached the stage of defence. It is quite inconceivable that the council
should have intended, or the appellant understood, that by the issue of this
rent book the ground should be cut entirely from under the feet of the council
as regards their pending proceedings for possession.
Since I have
formed this clear opinion I do not think it necessary to enter into any details
as to the manner in which this particular feature of the history was deployed
in the county court. It is not referred to in the judgment or in the judge’s
note. We have been told by counsel that, in spite of the fact that the point
was not pleaded, reliance was placed on it in the county court and we are
perfectly prepared to proceed on the assumption that that is so. We would not
wish the appellant to think that she has lost these proceedings because of an
omission in the pleadings or in the judge’s notes of evidence. Even on the
assumption that the point was made, in my opinion it is quite unsustainable.
Accordingly,
for these various reasons I would hold that the appeal must be dismissed.
STAUGHTON
LJ agreed and did not add anything.
The appeal
was dismissed with costs, not to be enforced without the leave of the court.
Legal aid taxation was ordered.
