Joram Developments Ltd v Sharratt

Rent Acts–Succession on death of statutory tenant–Meaning of ‘member of the original tenant’s family’–Platonic friendship between elderly widow and much younger man–Looked upon as nephew–Strict view taken by Court of Appeal, reversing decision of County Court judge–No blood, marriage or adoptive relationship–No ‘familial nexus’–Claim to succession rejected but leave given to appeal to House of Lords in view of state of the authorities This was an appeal from a decision of Judge Solomon at West London County Court who gave judgment for the defendant, Frank Sharratt, in an action for possession of Flat 48, Coleherne Court, London SW5, brought by the landlords, Joram Developments Ltd, after the death of the statutory tenant, Lady Salter. The defendant claimed that he had become the statutory tenant by succession. Ronald Bernstein QC and Jonathan Gaunt (instructed by Titmuss, Sainer & Webb) appeared on behalf of the appellants; Derek Wood and Miss T Woodhouse (instructed by Douglas Mann & Co) represented the defendant. Giving judgment, MEGAW LJ said: By paragraph 3 of Schedule 1 to the Rent Act 1968 it is provided that on the death of the original statutory tenant, not leaving a widow, ‘a person who was a member of the original tenant’s family,’ and who had been residing with him (that is, with the original tenant) for six months immediately before his death, shall be the statutory tenant. Lady Salter had for many years lived in Flat 48, Coleherne Court, London SW5. Her contractual tenancy expired in April 1973. She thereupon became a statutory tenant and so remained until her death. She died at the age of 94 on April 1 1976. Francis Sharratt, the defendant in the action out of which this appeal arises, had lived in Flat 48 since 1958. After Lady Salter’s death, the plaintiffs, Joram Developments Ltd, who had become the owners of Coleherne Court in 1974, sought to obtain possession of the flat as against Mr Sharratt, who continued in occupation. Mr Sharratt claimed that he had become the statutory tenant on the death of Lady Salter. The plaintiffs brought an action in the West London County Court, claiming possession of Flat 48. The sole question in issue before Judge Solomon when the action came on for trial was whether the defendant did or did not satisfy the qualification that he was ‘a member of the original tenant’s [Lady Salter’s] family’ at the date of her death. If so, there was no doubt that he satisfied also the residence qualification. The learned judge, having heard evidence on September 27 1977, delivered judgment the same day. After a careful review of the evidence and reference to three decisions of this court, he reached the conclusion that the defendant was a member of Lady Salter’s family. Accordingly he gave judgment for the defendant. The plaintiffs appeal. The judge unhesitatingly accepted the whole of the evidence of the defendant, who, the judge said, was honest and was clearly trying to be accurate. That conclusion is in no way challenged in this appeal, and I gladly adopt it. It is apparent also from the evidence and from the judge’s findings thereon that the defendant’s conduct in his relationship with Lady Salter over the 18 or 19 years of their friendship was wholly admirable and of the highest standard. When the two met in 1957, Lady Salter was 75. She had been a widow since 1929. She lived alone in the flat. The defendant was then 24. A friendship arose between them, which grew over the years and lasted without interruption until Lady Salter’s death in 1976. It was, as will have been understood from what I have already said, at all times what has been called, in default of a better word in the English language, ‘platonic.’  After about 16 months’ acquaintance, in 1958, Lady Salter73 suggested that the defendant should take up residence with her. He rather reluctantly gave up his flat in Woolwich and moved into the flat in Coleherne Court. There, it would seem, apart from absence on holidays and perhaps at times because of illness, he continued to live until the present day. He was living there when Lady Salter died. For the first three years or so of his residence there, the defendant paid £4 a week, which Lady Salter estimated was a fair assessment for the bedroom and breakfast. That payment ceased in 1961. Lady Salter at all times paid the rent of the flat, but the other expenses were thereafter shared between the two. Neither was financially dependent on the other. The learned judge has expressly held that none of the defendant’s motives were influenced by financial self-interest. I quote from the judgment: ‘He said so and I believe him absolutely. He stuck by her to the end. Nobody else in her family did so. Had it not been for the presence of the defendant, in the last five years she would have been obliged to enter a nursing home or else her family would have had to arrange to receive her into their midst. She was able to remain in her home, to be looked after by a much younger person. . . . Their relationship was sensitive, loving, intellectual and platonic.’ Lady Salter had no children of her own. At one stage she had wanted to call the defendant her son, but he pointed out that his mother was alive. There was, of course, no kinship at all. They were not related in blood, or by marriage, or by any process of adoption. The note of the defendant’s evidence reads: ‘I called her Lady Salter and at first she called me Francis, and later Bunny. She asked me when I had been there well over a year, possibly two years, to call her Aunt or Cousin. I called her Aunt Nora.’  In the notes of evidence the defendant is recorded as saying in cross-examination: ‘She looked upon me as her nephew. I was looked upon as her nephew by everyone–her family knew the truth that I was not.’  In an affidavit by Lady Salter’s step-grandson, Mr Whelon, put in as evidence on behalf of the defendant, this is said: ‘I believe that Mr Sharratt and my grandmother were very close and that my grandmother turned to him for help and companionship as she became older. Their relationship, from the way in which my grandmother spoke of it, was certainly not that of just landlady and lodger, but closer to that of aunt and nephew.’ When Lady Salter was in hospital in the course of her final illness, the defendant visited her daily. He was described in the hospital records as being her next-of-kin. Mr Whelon, when he became aware of this, wrote to the defendant saying: ‘I am sure it is best to leave it like that as you have done most for her and are closest to her.’  A nursing sister in the hospital ward said in an affidavit put in evidence on behalf of the defendant: ‘Lady Clavell-Salter stated that Mr Frank Sharratt was her stepnephew and wished him to be noted as her next-of-kin.’ The phrase ‘member of the tenant’s family,’ in the selfsame context as its context in paragraph 3 of Schedule 1 to the Rent Act 1968, was first used by Parliament in section 12 (1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. The phrase has been considered by this court since then in a large number of cases in relation to varying facts. The judgments in eight of those cases were carefully analysed, first by counsel for the plaintiffs and then by counsel for the defendant. With great respect to the interesting arguments of counsel, I do not, for reasons which I hope will become clear, find it necessary to follow the same course. To my mind, the decision at which we ought to arrive in the present case is dictated by the decision of this court in Ross v Collins [1964] 1 WLR 425. In Ross v Collins, Miss Collins, who had no relationship by blood or marriage with the statutory tenant, Mr McRae, had looked after him devotedly for a substantial time before his death at the age of 92 in 1962. She was nearly 40 years younger. On his death, she claimed to be the statutory tenant as being ‘a member of the tenant’s family’ residing with him. In evidence, Miss Collins said that Mr McRae ‘treated me as a member of his family. . . . I always regarded him as a sort of elder relative, partly as my father, partly as my elder brother.’  They did not address one another by their Christian names; nobody referred to Mr McRae as her father, nor to Miss Collins as his daughter. They did not pass themselves off as father and daughter. The judge in the county court rejected Miss Collins’ defence to the landlord’s claim for possession. He said: ‘I find that [Miss Collins] never passed as [Mr McRae’s] daughter, nor did she ever regard him as her father and that he never stood to her in loco parentis. . . . There was no blood relationship between these people, there was no relationship by marriage of these people, and there was no assumption of the title of father by him, and both being of full age when they met there was no question of either one having parental control over the other.’  The county court judge’s decision was affirmed by this court. Pearson LJ, at p 428, said (and I respectfully agree) that it is not easy to extract from the earlier decisions the relevant principles or tests. However, one broad and general principle, but only a broad and general principle, is Pearson LJ said, clearly established. That is to be found in the judgment of Cohen LJ in Brock v Wollams [1949] 2 KB 388 at p 395: ‘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’?’ In the present case, the learned county court judge asked himself that question. He held on the facts of the case, ‘which,’ he said, ‘if not unique, must be very rare,’ that the answer to the question was ‘yes.’  Lady Salter and the defendant ‘achieved through their relationship what must surely be regarded in a popular sense, and in common sense, as a familial nexus. That is to say, a nexus such as one would find only within a family.’ Mr Wood, for the defendant, in his very cogent argument, submitted that, in the light of the Brock v Wollams principle, the answer by the count court judge is conclusive. The judge, he contended, cannot be faulted on his assessment of the evidence, he has asked himself the correct question, and, unless it can be said that the answer which he gave was one that an ordinary man could not sensibly give, the answer must stand. Certainly this court would not be entitled to overrule the judge’s answer merely because some or all of the members of this court would have answered the question differently. The fallacy in that argument in relation to the present case, with all respect, is that 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.’ Judge Solomon recognised, as I read his judgment, that, if a passage in the judgment of Russell LJ in Ross v Collins was a correct statement of the law, the question in the present case would have had to be answered ‘no’. But, as I understand it, the judge took the view that the passage in question was obiter dictum and, further, not a correct statement of the law. What Russell LJ said, at p 432, was this: 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. Whether or not this statement is obiter dictum, I would respectfully agree with it. Hence, unless it could be shown to be74 inconsistent with other binding authority, I should regard it as conclusive of the present case adversely to the defendant. I do not see that it is inconsistent with any of the earlier authorities which have been cited to us, even though, in relation to one of them, Jones v Whitehill [1950] 2 KB 204, the distinction is a fine one. But, it may be said, the line has to be drawn somewhere; and, wherever it is drawn, that criticism can be made. In Jones v Whitehill the person who was held to be capable of being, and to be, ‘a member of the tenant’s family’ was the niece of the tenant’s wife. There was, therefore, in that case, what Russell LJ described as ‘an in-law link.’ Whatever difficulties may arise as to the ratio decidendi of the later decision of this court, Dyson Holdings Ltd v Fox [1976] 1 QB 503, we do not, in my opinion, have to consider them in this present case. For there would be nothing in Dyson v Fox which would affect the issue in the present case unless it could be suggested–and it is not suggested–that there has been some change in the ordinary meaning of ‘member of the tenant’s family’ since 1962 (the relevant year in Ross v Collins) in relation to the facts of the present case. Hence we do not have to consider the possibly somewhat serious and difficult problems which would arise, on the basis of Dyson v Fox, by reference to a suggested change in the meaning of words used in a statute. In my judgment, then, the defendant’s claim to be a member of the family is defeated because the law, to adopt the words of Russell LJ, is that an adult man and woman who establish a platonic relationship cannot–I stress that it is, as matter of law, ‘cannot’–establish a ‘familial nexus’ by acting as son and mother would act, even if they refer to each other as such and regard their association as tantamount to such. It must follow that the ‘familial nexus’ cannot be established in this case by the assumed, less close, relationship of aunt and nephew. When one considers the judgment of Pearson LJ in Ross v Collins it emerges, as it seems to me, that the ratio decidendi of that case, binding upon us, precludes the defendant from succeeding in the present case. As appears from the facts of Ross v Collins as I have summarised them, the county court judge rejected the existence of what has been called a ‘de facto’ father-daughter relationship. But it was still contended in this court that the facts showed a ‘de facto’ relationship, ‘something intermediate between a daughter and a sister.’  ‘But,’ said Pearson LJ, ‘in my view, that is not a possible method of arriving at a decision in this case.’  As I understand it, Pearson LJ is there saying that, whatever might be the legal position if there were shown to have been a ‘de facto’ filial relationship, with the word ‘filial’ used in its true sense, some other, lesser, fictitious, or ‘de facto,’ kinship will not do. A ‘de facto’ relationship somewhere intermediate between a daughter and a sister would, presumably, be closer than a ‘de facto,’ or assumed, relationship of uncle and niece, or aunt and nephew. If the closer assumed relationship will not do, as a qualification entitling the person concerned to be considered as a possible ‘member of the tenant’s family’–and, as I understand it, Pearson LJ said that as a matter of principle it would not do–it must follow that the less close assumed relationship of nephew or ‘step-nephew’ (which is what is relied on in the present case) will not do. As I have already said, in the light of Ross v Collins, I take the view that the various other interesting questions argued before us do not arise. I therefore express no views on them. I would allow the appeal. Agreeing, LAWTON LJ said: For the purposes of this judgment I have asked myself the question which Cohen LJ suggested in Brock v Wollams [1949] 2 KB 388 at p 395 should be asked and to which Megaw LJ has already referred. There are, in my opinion, three possible answers: ‘yes’ or ‘no’ (the ones given by Lord Justice Cohen) and ‘I am not all that sure but I would say ‘yes’ (or ‘no’, as the case might be).’ The possibility of a third answer is of importance, first because the ordinary man does not exist–he is an intellectual concept–and, secondly, because the word ‘family’ has no precise meaning. What it does mean depends upon the context. It is a word which has changed its meaning through the years. The Shorter Oxford Dictionary, for example, gives a number of meanings, including, under the date 1545, ‘the body of persons who live in one house or under one head, including parents, children, servants, etc.’  Another meaning, under the date 1667, is given as ‘all those who are nearly connected by blood or affinity.’  The width of the meaning which this word can have is of importance because, being a word in ordinary use, the trial judge in this case had to decide as a matter of fact what it meant and whether it applied to the relationship under consideration. This court would only be entitled to say that the trial judge was wrong if we thought that his decision was one which no tribunal acquainted with the ordinary use of language could reasonably have reached: see Cozens v Brutus [1973] AC 854 per Lord Reid at p 861(E). In paragraph 3 of Schedule 1 to the Rent Act 1968 the word ‘family’ has a context. The problem is whether Mr Sharratt was a member of Lady Salter’s family residing with her at the time of and for a period of six months before her death. The concept of living as a family is implicit in the statutory words. This cuts down the width of the word ‘family,’ for example, as it is used in the phrase ‘the Royal Family.’  In my judgment those who live together as a family have a degree of affinity with each other based upon blood, marriage (including the in-law relationship) or adoption (whether formal or informal) during childhood. Someone lacking this degree of affinity, as Mr Sharratt did, may be treated as a member of the family, but that, in ordinary English as used in the past two decades, is not the same as being a member of the family. In saying this I have not overlooked the decision of this court in Dyson Holdings Ltd v Fox [1976] 1 QB 503 and the problems of statutory construction and precedent which that case raises. The relationship which was under consideration in that case, namely, that between a man and a woman cohabiting, is of no relevance to the decision in this appeal. I, too, would allow the appeal. Also agreeing, BROWNE LJ said: With, I think, more hesitation than my Lords, I have also come to the conclusion that this appeal must be allowed. Megaw LJ has fully stated the facts, and I need not repeat them in detail. For about 18 years before Lady Salter’s death Mr Sharratt had lived with her at 48 Coleherne Court in a relationship which, as Lord Justice Megaw has said, ‘has been called, in default of a better word in the English language, ‘platonic” and which the county court judge described in the passage of his judgment which Lord Justice Megaw has quoted. It seems to me that, in the words of Sir Raymond Evershed MR in Langdon v Horton [1951] 1 KB 666 at p 669, Mr Sharratt ‘had by [his] conduct assumed, as it were, a filial character,’ especially in the last years of her life. He called her ‘Aunt Nora.’  She looked on him as her nephew, and everyone looked upon him as her nephew; her family knew he was not, but it is clear from Mr Whelon’s affidavit that they thoroughly approved of the relationship. But is this enough to entitle a court to hold that he ‘was a member of the original tenant’s family’ within paragraph 3 of Schedule 1 to the Rent Act, 1968? The foundation of all the later decisions of this court on this problem is what Cohen LJ said in Brock v Wollams [1949] 2 KB 388 at p 395: ‘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’.’  But I entirely agree with Megaw LJ that ‘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’.’  In Gammans v Ekins [1950] 2 KB 328 this court held that it could not, and reversed the decision of the county court judge that the defendant in that case was a member of the tenant’s family: this was the only case75 cited to us in which this court reversed a finding by the county court judge that a person was a member of the tenant’s family; in several cases it reversed findings that a person was not a member of the family and in others it affirmed such findings by the county court. As I understand the authorities, two elements have to be considered in deciding whether or not a person was a member of the tenant’s family–relationship and conduct (see especially Pearson LJ in Ross v Collins [1964] 1 WLR 425 at pp 430-431). There is also the additional requirement of residence with the tenant for at least six months before his or her death, which of course Mr Sharratt amply satisfied. In my view, on the judge’s findings, he clearly satisfied the ‘conduct’ requirement, but the question is whether he can, as a matter of law, satisfy the ‘relationship’ requirement. In Gammans v Ekins [1950] 2 KB 328 this court held that the defendant could not satisfy it, and in Ross v Collins [1964] 1 WLR 425 the majority of this court (Davies and Russell LJJ) thought that that decision bound them to come to the same conclusion. I think that Pearson LJ based his decision on a different ground, namely, that on the facts of that case there was no family relationship (see pp 428 and 430). Those decisions are of course binding on us for what they decide. I confess that I have some difficulty in formulating what Gammans v Ekins did decide. In that case the defendant and the deceased tenant had been living together, either as man and wife or in a ‘platonic’ relationship. Asquith LJ, who delivered the leading judgment, approved Mr Blundell’s argument as to the ‘categories’ in which the authorities up till that time had held that the necessary relationship existed, though with an alteration in the description of Mr Blundell’s first category. But in the last paragraph of his judgment he said: ‘But I would decide the case on a simpler view. To say of [the defendant and the deceased tenant] that they were members of the same family, seems to me an abuse of the English language. . . .’  Jenkins LJ and Sir Raymond Evershed MR seem to me to have based their judgments on the view that the defendant could not, in the ordinary meaning of words, be described as a member of the tenant’s family. In my view that case did not decide that as a matter of law a person cannot be a member of the tenant’s family unless he or she falls within one of the ‘categories’ referred to by Mr Blundell and Asquith LJ, and I understand Pearson LJ to have taken this view in Ross v Collins, or at least the view that the ‘categories’ had not yet been fully or finally defined (see pp 431-432). In my judgment, Gammans v Ekins and Ross v Collins require us to hold that–whatever may have been their conduct–two adults who live together in a ‘platonic’ relationship, without any ‘recognisable family relationship’, cannot be members of each other’s families. The necessary ‘family relationship’ or ‘familial nexus’ can be established in various ways. Megaw LJ has already quoted what Russell LJ said in Ross v Collins at p 432. In the same case Pearson LJ said (at p 430): If it were necessary, it might be a difficult task to determine exactly what the three classes or groups or categories of relationship are. In my view, however, it is not in the present case necessary to face these difficulties. It is sufficient to say that there must have been a family relationship of some kind between the surviving person and the deceased person, if the surviving person is to qualify as a possible member of the deceased person’s family. There may have been a relationship by blood. There may have been a relationship through marriage, as, for instance, in Jones v Whitehill. Also in some cases a de facto family relationship has been recognised as sufficient. In Brock v Wollams there had been a de facto adoption at the age of five and a long continuance of the child and parent de facto relationship. Hawes v Evenden was a case in which a man and his mistress and the several children of the association had been living together as a family. It was held after the man’s death that his mistress, by virtue of the fact that they had been living together with their children as a family, could be regarded as a member of his family for this purpose. In the present case, however, there was no family relationship of any kind and the defendant for that reason must fail to qualify as a member of McRae’s family. She was in no sense his daughter, neither de jure nor de facto nor in any other way; and no other family relationship can be suggested, except (as Mr Lawson put it) something intermediate between a daughter and a sister, or, on the other side something intermediate between a father and an elder brother. But, in my view, that is not a possible method of arriving at a decision in this case. I agree with Megaw LJ that we do not have to consider the ground on which the majority of this court in Dyson Holdings Ltd v Fox [1976] 1 QB 503 distinguished Gammans v Ekins, because there is no suggestion that there has been any change in the meaning of words or in social attitudes which is relevant to the present case. Apart from this distinction, Gammans v Ekins remains binding on us, as the majority of this court held in Dyson Holdings Ltd v Fox. If a de facto relationship can be enough, I confess that I find it difficult to distinguish between a decision that a husband is a member of his wife’s family (Salter v Lask (No 2) [1925] 1 KB 584) and a decision that a man who has been living for years with a woman as his wife, though without any marriage ceremony, is not; the latter seems to me to be a case ‘where the link would be strictly familial had there been a marriage’, as Russell LJ said in Ross v Collins (at p 432). But only the House of Lords could solve this problem. The possible scope of de facto relationships seems to me difficult to define. The only case cited to us in which a de facto relationship was held to be enough was Brock v Wollams [1949] 2 KB 388, where a child had been de facto ‘adopted’ at the age of five or six but without the necessary legal formalities, and had lived with the tenant for 36 years except for a break of three years. In such a case the law would recognise a de jure relationship of parent and child if the necessary steps had been taken; and, as Sir Raymond Evershed MR said in Langdon v Horton [1951] 1 KB 666 at p 670–‘An adopted child is clothed with all the characteristics of a child so far as the outside world is concerned.’  But our law does not recognise any de jure adoption of adults. I am not satisfied that any de facto relationship except adopting parents and adopted children or (on the authority of Dyson Holdings Ltd v Fox) two people living together as man and wife could provide the necessary element of ‘relationship.’ If Mr Sharratt had in fact been the nephew of Lady Salter (or of Sir Arthur Clavell-Salter) this could have been a sufficient relationship (see Jones v Whitehill [1950] 2 KB 204) and it seems to me hard that this de facto relationship of aunt and nephew, coupled with his conduct, should not be enough. But the line must be drawn somewhere, and if he could be included among those who can be members of the tenant’s family it would be difficult, if not impossible, to exclude the cases put in several of the authorities of two old cronies sharing a house, and perhaps calling themselves and each other brothers or sisters. In my judgment we are bound by Gammans v Ekins and Ross v Collins to allow this appeal. Appeal allowed with costs. Judgment below set aside. Judgment to be entered for plaintiffs for possession, with costs on Scale 2. Leave to appeal to House of Lords granted. Stay of order for possession for six weeks: if within that time petition of appeal lodged, stay to continue pending hearing of appeal. Liberty to either party to apply.