Carega Properties SA (Formerly Joran Developments Ltd) v Sharratt

Rent Act–Appeal against possession order–Scope of Schedule 1, para 3 to Rent Act 1968 (now Schedule 1, para 3 to Rent Act 1977)–Meaning of ‘family’–Whether a person between whom and deceased statutory tenant there is no connection by way of consanguinity, of affinity, of adoption or of regular sexual intercourse can be a member of the tenant’s ‘family’–Relationship in present case was platonic and quasi-filial–18 years of ‘kindness and affection’–Held that appellant was not entitled to become a statutory tenant by succession after death of elderly widow–House of Lords refused to undertake a general consideration in this case of meaning of ‘a member of the original tenant’s family’ This was an appeal from the decision of the Court of Appeal reversing the decision of Judge Solomon at the West London County Court. He had refused the landlords an order for possession of flat 48, Coleherne Court, London SW5, on the ground that the relationship between the late statutory tenant, Lady Salter, and the defendant (the present appellant) constituted a ‘familial nexus.’  The Court of Appeal decision was reported at (1978) 247 EG 645, [1978] 2 EGLR 72. Derek Wood QC and Miss T Moorhouse (instructed by Douglas Mann & Co) appeared on behalf of the appellant; Ronald Bernstein QC and J Gaunt (instructed by Alexander Gowers & Co) represented the respondents. In his speech LORD DIPLOCK said: The only question in this appeal is one of construction of the Rent Act 1968. It83 is whether a person between whom and the deceased statutory tenant of a dwelling-house there is no connection by way of consanguinity, of affinity, of adoption (de jure or de facto) during minority or of regular sexual intercourse (past or present) can be a member of the tenant’s family within the meaning of Schedule 1, paragraph 3, to the Act, so as to entitle him to become the statutory tenant of the dwelling-house by succession to the deceased. The facts of the instant case, if they are not unique, are certainly most unusual, and for that reason they do not, in my opinion, provide a suitable occasion for this House to undertake a general consideration of what persons may be included in the expression ‘a member of the original tenant’s family’ where at the time of the tenant’s death there did exist between him and the claimant to a statutory tenancy by succession a relationship of one or other of the various kinds to which I have referred above. In particular, the difficult question posed by Dyson Holdings Ltd v Fox [1976] QB 503 as to the extent, if any, to which changed social attitudes towards cohabitation between unmarried couples and the offspring of such liaisons may have enlarged the meaning of the expression ‘family’ in the Rent Act 1968 does not arise in the instant case and is best left for consideration in the light of the actual facts of a case in which it does arise. The deceased statutory tenant of Flat 48, Coleherne Court, London SW5, of which the respondents claim possession, was Lady Salter, the widow of a High Court judge, who had died as long ago as 1929. In 1957, when she was aged 75, she first met the appellant, Mr Sharratt, who was then aged 24. They shared a mutual interest in politics and the theatre and a close friendship grew up between them. In the following year, Lady Salter suggested that Mr Sharratt should come to live in her flat at Coleherne Court. He fell in with this suggestion and for the first three years that he resided there he paid her £4 a week for bed and breakfast. After that the payments ceased. Lady Salter at all times paid the rent of the flat but the other expenses were shared between them. This continued until her death at the age of 94 in April 1976. The relationship between them throughout was platonic and filial. He behaved towards her as a dutiful and affectionate son and looked after her during her declining years. She would have liked to speak of him as her son, but this was not acceptable to Mr Sharratt, whose mother was still alive; so they decided that he would call her Aunt Norah and she addressed him by an affectionate nickname. There was, throughout, no question of his being financially dependent on her. All that he did for her over the 18 years that he resided with her in the flat had no other motive than kindness and affection. My Lords, the bare recital of these facts makes one desirous, if one can, to gratify Mr Sharratt’s wish to continue to reside in the flat where he had lived for so long before Lady Salter’s death. Judge Solomon in the West London County Court, where the action by the landlords for possession of the flat was brought, felt himself able to do so. ‘I have come to the conclusion,’ he said, ‘that Lady Salter and this defendant achieved through their relationship what must surely be regarded in a popular sense, and in commonsense, as a familial nexus. That is to say, a nexus such as one would find only within a family. I am sure Shakespeare’s man would say: ‘Yes, it is stranger than fiction, but they established a familial tie. Everyone linked to her through the blood was remote by comparison with the defendant.” The reference to Shakespeare’s man is an allusion to the description ‘base common and popular’ which in Langdon v Horton [1951] 1 KB 666, 669, Lord Evershed MR borrowed from Henry V Act IV, Scene 1, to describe the ordinary man mentioned by Cohen LJ in Brock v Wollams [1949] 2 KB 388 at p 395, where he said: ‘The question the county court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether Mrs Wollams was a member of the family or not, have answered ‘Yes’ or ‘No’.’  This test, which does no more than say that ‘family’ where it is used in the Rent Acts is not a term of art but is used in its ordinary popular meaning, has been repeatedly referred to and applied in subsequent cases. The Court of Appeal (Megaw, Lawton and Browne LJJ) unanimously reversed the judgment of Judge Solomon. Megaw LJ after quoting the ‘Cohen question’ went on to say, in my view quite correctly: It is for this court to decide, where such an issue arises, whether, assuming all the facts found by the judge to be correct, the question may, as a matter of law, within the permissible limits of the meaning of the phrase ‘a member of the tenant’s family’ be answered ‘Yes.’ Megaw LJ and Lawton LJ both answered the question with a confident ‘No’; and so would I. Browne LJ agreed, but rather more hesitantly. However, he also thought that the Court of Appeal was bound to allow the appeal because of two previous decisions of its own, Gammans v Ekins [1950] 2 KB 328 and Ross v Collins [1964] 1 WLR 425. Gammans v Ekins was a case of cohabitation by an unmarried couple, a relationship which raises questions upon which I find it unnecessary and inappropriate to enter for the purpose of disposing of the instant appeal. Ross v Collins, on the other hand, was much like the instant case, save that the sexes of the older party, who was devotedly cared for, and the younger party who did the caring, were reversed. As my reason for dismissing the instant appeal, I would not seek to improve upon what was said there by my noble and learned friend (then Lord Justice Russell): Granted that ‘family’ is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man–where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is ‘step-,’ or where the link is ‘in-law’ or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man. I would accordingly dismiss this appeal with costs up to June 12 1979, being the date on which the respondents became aware that a legal aid certificate had been issued to the appellant. It being conceded on behalf of the appellant that the order of the Court of Appeal as drawn up omitted the decision of the Court of Appeal that the present appellant should pay the present respondent’s costs of the appeal to that court. The order of that court as drawn up should be varied by adding ‘And that the costs of the plaintiffs of this appeal be taxed and paid by the defendant.’ Agreeing that the appeal should be dismissed, VISCOUNT DILHORNE said: The meaning to be given to the words ‘a member of the original tenant’s family’ in Schedule 1, paragraph 3, to the Rent Act 1968 is in my view a question of law. ‘Family’ is a word the content of which varies with the context in which it is used. When used in a statute, it has not in my opinion the same meaning as the word ‘household.’  While a household may consist only of members of a family, it can include persons not capable of being so regarded. I accordingly cannot accept the argument that ‘family’ in the Act can be read as meaning ‘household.’  While the question which Cohen LJ said in Brock v Wollams [1949] 2 KB 388, 395 the county court judge should have asked himself, namely: ‘Would an ordinary man, addressing his mind to the question whether Mrs Wollams was a member of the family or not, have answered ‘Yes’ or ‘No’,’ has not infrequently been84 posed, the answer to the question is not likely to extract any more than the judge’s personal view. It is to the highest degree unlikely that a judge would ever say, ‘I think the answer is ‘Yes’ but I think an ordinary man would say ‘No” and if a judge did that he would in my opinion be wrong. It is for the judge to construe the statute and it is for him to state his conclusion as to the meaning to be given to the word ‘family’ in the context in which it appears, giving it, unless the context otherwise requires, its ordinary natural meaning. To such a question if posed in the present case, I would unhesitatingly answer that the appellant was not a member of Lady Salter’s family. Indeed were it not for the argument addressed to us in the House I would have been content to express my agreement with the judgments of Megaw and Lawton LJJ and with the speech of my noble and learned friend Lord Diplock. LORD ELWYN-JONES, LORD FRASER OF TULLYBELTON and LORD RUSSELL OF KILLOWEN also agreed that the appeal should be dismissed. The appeal was dismissed, the order for costs being as mentioned at the end of the speech of Lord Diplock.