Hildebrand and another v Moon

Rent Act 1977, Schedule 1, para 7 — Succession to statutory tenancy — Whether claimant, daughter of first successor, was ‘residing with’ her mother at the time of and for the period of six months immediately before her death — Appeal from decision of county court judge, who decided against the daughter’s claim and made an order for possession in favour of landlords The appellant’s father was the statutory tenant of the premises in question and on his death her mother became the first successor — The appellant lived in the premises as the family home until she acquired a flat of her own elsewhere in London in 1982 — When, however, her mother became seriously ill the appellant moved back to nurse her and stayed in the premises for more than six months before the mother’s death in 1986 — The appellant spent most of the day and slept there, did most of the shopping and lived with her mother as one household — She retained her own flat but a few months before her mother’s death was contemplating selling it — In evidence before the county court judge she said: ‘I moved in permanently’ and ‘I wanted to make it my permanent home’ — The judge, however, was not satisfied that the statutory requirement of ‘residing with’ her mother, as distinct from merely being a person ‘looking after’ her mother, had been fulfilled — He appeared to have been influenced by the absence of sufficient explicit contemporaneous intention to reside with the mother On appeal Mann LJ gave particular attention to the judgment of Swinton Thomas J in Swanbrae Ltd v Elliott, in which a number of authorities were reviewed and which in its facts bore a considerable resemblance to the present case — The claimant there also was a daughter who had cared for her mother in her last illness, but the Court of Appeal (consisting of Kerr LJ and Swinton Thomas J) held that the daughter did not make good her claim; she had moved in for a limited time and for a limited purpose and did not make her home with her mother within the meaning of ‘residing with’ the mother in the statutory phrase The court in the present case held that the judge had erred in placing too much weight on the need for specific evidence of contemporaneous intention — All the objective indications were that the appellant had made her home with her mother — Her evidence of permanency had been accepted by the judge — There was evidence that the appellant had it in mind to sell her own flat and for that purpose some decorative work had been carried out — The appellant had given sufficient evidence of the ‘subjective intention’ which the judge seemed to find lacking — The Swanbrae case was distinguishable — The daughter there slept in the subject premises three or four nights a week only, spending the other nights in her own house, where her son continued to live — She was a ‘visitor’, although a regular visitor — There was ‘a marked contrast with the facts of the present case’ — Appeal allowed The following cases are referred to in this report. Collier v Stoneman [1957] 1 WLR 1108; [1957] 3 All ER 20, CA Morgon v Murch [1970] 1 WLR 778; [1970] 2 All ER 100, CA Swanbrae Ltd v Elliott [1987] 1 EGLR 99; (1987) 281 EG 916; 19 HLR 86, CA This was an appeal by the defendant, Georgina Moon, from the decision of Judge Dobry QC, at Bloomsbury County Court, awarding possession of premises at 50 Gloucester Place Mews, London W1, to the plaintiff landlords (the present respondents), Ronald Peter Hildebrand and Max Glicker, and rejecting the appellant’s claim to a statutory tenancy by succession. A R De Wilde (instructed by Goodwin & Knipe) appeared on behalf of the appellant; E F Cousins (instructed by Chethams) represented the respondents. Giving the first judgment at the invitation of Bingham LJ, MANN LJ said: There is before the court an appeal from an order of His Honour Judge Dobry QC sitting at Bloomsbury County Court on July 21 1988. The appellant is the defendant in the action and the respondents are the plaintiffs. The action concerns possession of premises at 50 Gloucester Place Mews, London W1. The issue between the parties is as to whether the appellant is entitled to a statutory tenancy of those premises. She asserts her entitlement by reference to para 7 of Schedule 1 to the Rent Act 1977. Omitting what is immaterial, the paragraph reads: . . . a person who was a member of the first successor’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person101 such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence. The history of 50 Gloucester Place Mews is that the appellant’s father acquired a statutory tenancy in the premises. He died on December 17 1981. The appellant’s mother succeeded to that tenancy. The premises had been the family home. The appellant lived there for many years until she moved out in 1982, acquiring a flat of her own in London NW8. Unhappily, the mother, who had succeeded to the statutory tenancy, became ill of a cancer and the appellant moved out of her own flat in order to nurse her mother. The mother died on November 27 1986. The appellant had contemplated selling her own home in May 1986. I should refer to the facts as found by the learned judge. Here it is perfectly clear, as I have already found, that the tenant moved into number 50 certainly more than 6 months before her mother’s death in the sense that she slept there and spent much of the day there. She took her personal effects. She kept all her furniture and papers in number 3. That was the flat in London NW8. She lived with her mother as one household, did most of the shopping, received visitors there rather than at number 3, people telephoned her there and so on. The other factor is that she did retain her former accommodation but merely because she had other premises is not sufficient directly or indirectly to prove that she was not ‘residing with’ although it is a factor which can be taken into account up to a point. The learned judge recites a small passage from the appellant’s evidence before him in these terms: ‘The initial idea was to look after my mother.’  Then she (the appellant) said twice ‘I moved in permanently’, ‘I wanted to make it my permanent home.’ Then the judge said: I accept that she is a genuine person. The method of application of para 7 of the First Schedule to the Rent Act 1977 was elaborately analysed in this court in Swanbrae Ltd v Elliott [1987] 1 EGLR 99. The authorities were reviewed by Swinton Thomas J. I do not think it necessary to refer to the facts of the case, but it is convenient to pick up a number of the learned judge’s quotations. He first referred [at p 100] to Collier v Stoneman [1957] 1 WLR 1108: Jenkins LJ cited a passage in the judgment of Lord Evershed MR in Neale v Del Soto [1945] KB 144 in which the Master of the Rolls said that the words ‘residing with’ must be given their ordinary popular significance. They do not involve any technical import or have some meaning only to be defined by lawyers. The fact that the words must be given their ordinary and natural meaning does not necessarily make the task in a case such as the present case any easier. Swinton Thomas J then referred to Morgon v Murch [1970] 2 All ER 100: At p 103 Winn LJ said that in his view the word ‘reside’ was synonymous with the words ‘live at’. That is, of course, contrary to the view expressed by Sachs LJ in Foreman v Beagley [1969] 1 WLR 1387 and, if it is necessary for me to do so, and with the greatest respect, I agree with the view of Sachs LJ that ‘residing with’ is something more than ‘living at’. Winn LJ then continues: ‘In my opinion there is no doubt at all that the learned judge here made a finding, or drew an inference, which he was only qualified to draw, or purported to be qualified to draw, as a lawyer, since he posed to himself a test which he was regarding as a test having validity in law. He was not merely finding an inference of fact from primary facts established by his own findings. In my personal opinion he erred in that he took, as his crucial test, and the dominant criterion, the question whether or not the defendant had abandoned, and intended no longer to return to, his own former living place or — I have to use the word — residence . . . . The important word is residing which requires reasonably permanent residence — seven months’ residence was not enough unless he gave up his own home. Had the defendant given up his home?’ The learned judge then looks at the facts of that particular case. Having considered further cases, Swinton Thomas J continues [at p 101D]: When considering an appeal from a judge of first instance who has heard the evidence it is very important, in my view, for this court to bear in mind that questions of ‘residence’ and ‘residing at’ are very much ones of fact and degree. A judge must view the quality of the residence alleged and come to a conclusion upon the totality of it as to whether in truth it falls within the proper usage of the term ‘residing with’. In his notice of appeal on behalf of the defendant/appellant Mr Gallivan makes a number of criticisms of the learned judge’s judgment. On p 3 of his judgment the judge quotes a passage from Morgon v Murch (supra) and poses what is, in my view, the correct test, namely whether the defendant is entitled to claim that she was residing with her (the mother) at the time and had been for six months before her death. He then goes on in the next passage to say: ‘I should add that it was submitted by counsel for the plaintiff in my view correctly that if a person intends to return to her abode or does not make a decision as to her future while living at her mother’s house she cannot be classified as a person ‘residing with’ her mother.’ Mr Gallivan criticises that passage and says that it is wrong and that therefore the judge posed the wrong test. Taking the passage alone as it stands, it is open to some criticism. If a person intends to return to her abode, in this case 4 Gainsborough Avenue, that may well be a relevant factor in deciding whether she is ‘residing with’ her mother at 49 Wellington Road. It may also be a factor that she had not ‘made a decision as to her future while living at her mother’s house’. However, as was made clear in Morgon v Murch, the defendant does not have to establish that she has been residing with her mother with an intention to reside there indefinitely in the sense that she would not intend ever to move away. She has to establish merely that for the relevant period she was residing with her mother. Later in his judgment the learned judge said [at p 101G]: Mr Gallivan further criticises the learned judge’s finding that ‘residing with’ connotes an element of intention. Winn LJ in Morgon v Murch specifically refers to ‘the time which he spends there and the intention which he has when he spends it’. The words of Sellers LJ, ‘making their home there’, the words of Russell LJ, ‘being a member of the tenant’s household’ and the words of Sachs LJ, ‘some measure of factual community of family living and companionship’ all suggest an element of intent. Although intent is, in my judgment, a relevant factor, none the less the question of whether or not it has been established that the defendant was or was not residing with her mother over the relevant period must be judged objectively on all the facts of the case. My final quotation from Swinton Thomas J is [at p 101M]: Further, it always has to be borne clearly in mind in a case of this nature that a judge sitting in the county court has heard all the evidence and neither the notes which he takes nor his judgment can encompass the totality of the evidence. In a case such as this, which is essentially one of fact and one of degree, the judge of first instance has an opportunity of making a judgment on the evidence which is denied to this court. Those are cautionary words. The learned judge in the court below achieved his conclusion in this way: I do not find the facts in relation to the one household concept are conclusive but there is more to be said about the tenant. In relation to satisfying the statutory test, what I have taken into account is that during that year — that is the year of the mother’s illness — the shock and uncertainty of her mother being ill did not create circumstances in which her status in her own mind or objectively was or could have been defined as being settled to have become resident with, rather than being a person looking after her mother. I have no doubt that much thought was given to the possibility of the arrangement being permanent but I find that neither in May nor in November was there a state of affairs from which I can infer that she was ‘resident with’ her mother. I find without hesitation that in May 1986 none of the relevant circumstances were sufficiently fixed or established to satisfy the statutory requirements. It is with some regret that I have to say that the landlord is entitled to possession. On behalf of the landlords Mr Cousins said that the judge decided this case by reference to intention. He said there was no contemporaneous evidence of an intention to reside with the mother. We were referred to a letter which the appellant wrote to the landlord when they discovered, apparently to their surprise, that she had been living there. The letter is dated December 12 1986 and reads: With regard to ‘occupancy’. I lived here at number 50 for twenty five years, before moving away eight years ago. I then returned, but only for a short while, after my father’s death, five years ago. But in February of this year, when my Mother became ill with cancer, I moved back in to help nurse her. Mr Cousins also points out that the appellant had another home and he draws attention to what Kerr LJ said in the Swanbrae case at p 102: While I certainly do not exclude the possibility that a defendant who has his or her own home–in the fullest sense of the word–elsewhere may nevertheless satisfy the test of this legislation, such cases will inevitably be rare. It must, I think, be clear from the findings of the learned judge which I have recited that all objective indicia are that the appellant had made her home with her mother. Her evidence as to permanency was accepted by the learned judge. All the indicia being as they are, the absence of specific evidence of contemporaneous intention cannot, in my judgment, be decisive. The indicia being as they are, and having regard to the tests formulated in the authorities to which I have referred, I would, notwithstanding the caution one must have in dissenting from the judge in the court below, allow this appeal. Agreeing, BINGHAM LJ said: Since we are taking a different view from the learned county court judge, I shall endeavour to summarise my own conclusions in my own words quite briefly. One starts with the statutory provisions to which Mann LJ has referred, and in particular one starts with the words ‘residing with him at the time of and for the period of 6 months immediately before his death’. So far as the period is concerned, there is, I think, on the facts of this case, no problem, since it is common ground that, if the appellant resided, she did so from February until November, subject to any question of intention. So the question in simple terms is: was the appellant residing with her mother at the time of her mother’s death and for six months immediately before her mother’s death?  It seems to me, in agreement with Mann LJ and on the plain findings of the learned judge, that the objective indicia of residence are on their face satisfied. The learned judge said, in the course of his most clear and helpful judgment: I find that between February and November 1986 the defendant resided continuously at number 50 Gloucester Place Mews except for two periods — one week and another of 5 days when repairs had to be carried out to the roof of number 50 when both mother and daughter moved to number 3 Gateforth Street. While she was at number 50 at first the mother did more shopping than later on, but the daughter helped. The daughter is an actress and was not working continuously. The shopping was shared; later the defendant did the shopping. They had meals together. They lived as one family, having regard to the size of the premises and what I infer to be a close relationship between them. So it appears from the learned judge’s description and findings that the appellant and her mother lived as mother and daughter, sharing their lives essentially together. It is, of course, true, as Mann LJ has mentioned, that the appellant had her own flat, but the evidence was, and the learned judge accepted, that by about May 1986 anyway the appellant had it in mind to sell the flat and for that purpose to decorate it. The learned judge said: By about May 1986 the daughter contemplated the sale of her premises at Gateforth Street. I find as a fact that some time in May some redecoration work was carried out there which was not unconnected with the possibility of selling the flat. Her plan was to sell in September, which she believed to be the best time. So one has the picture of a daughter who has moved back into her mother’s house to live with her mother and who is making preparations to part with her own property. The learned judge said, as he approached the end of his judgment: In my judgment, taking into account all the factors, except her subjective intention, one is left in a state of some doubt whether the defendant was firmly established as resident with her mother in the statutory sense. However, if I were to decide the case disregarding intention, although one cannot, I think that she might well have established on balance that she was resident with her mother rather than resident in her premises. It seems to me, with great respect to the learned judge, that, leaving intention aside and looking simply at the facts of the appellant’s life, the judge would really have been bound to conclude on the evidence that the appellant resided with her mother from February onwards. It was the element of intention which led him to conclude that the appellant had failed to establish that she had resided with her mother, and the passage in which the learned judge really comes to that conclusion is, I think, the following: I do not find the facts in relation to the one household concept are conclusive but there is more to be said about the tenant. In relation to satisfying the statutory test, what I have taken into account is that during that year the shock and uncertainty of her mother being ill did not create circumstances in which her status in her own mind or objectively was or could have been defined as being settled to have become resident with, rather than being a person looking after her mother. I have no doubt that much thought was given to the possibility of the arrangement being permanent but I find that neither in May nor in November was there a state of affairs from which I can infer that she was ‘resident with’ her mother. I find without hesitation that in May 1986 none of the relevant circumstances were sufficiently fixed or established to satisfy the statutory requirements. It appears, therefore, that the learned judge felt that the appellant lacked the requisite intention to fulfil the requirement of residing with her mother. For my part, and in accordance with the authorities, I accept that intention is relevant and, indeed, one can readily understand that it may make the difference between a visitor and a resident; but I think that the learned judge erred in law in giving this aspect a weight which, particularly in the circumstances of this case, could not be justified. In any event, it seems to me that the appellant did give sufficient evidence of her subjective intention, evidence which apparently the judge accepted. He referred to and made a finding concerning her plans to sell the flat. He referred, in the course of his judgment, to evidence of the appellant to the effect that she moved in permanently and that she wanted to make her mother’s house her permanent home and, according to the note of judgment approved by the judge, having quoted that evidence he immediately added: ‘I accept that she is a genuine person’. So that it appears on the evidence which was accepted that the learned judge did accept the appellant as somebody genuinely having intended to remain in her mother’s house, at any rate for the foreseeable future. The learned judge did attach great importance to the fact that the appellant moved back into the house to nurse her mother, and Mann LJ has referred to the letter in the course of which the appellant said, writing in December 1986: I moved back in to help nurse her. There is, however, in my judgment, no reason why the fact that the daughter returns to her mother’s house to help nurse her should lead to the conclusion that the daughter does not from the moment of moving back thereafter reside with her mother. It would, of course, be entirely different if she came back, rather like a professional nurse, to do a job but with the intention of leaving as soon as the job was done. In finding a contrast between ‘residing with the tenant’ and ‘looking after the tenant’, again, as I respectfully think, the learned judge fell into error. Our attention has very helpfully been drawn to Swanbrae Ltd v Elliott [1987] 1 EGLR 99 and 19 HLR 86. The learned judge regarded the present case as almost indistinguishable from the Swanbrae case. It is, however, to be noted that in that case Mrs Elliott, who was seeking to establish the tenancy, slept in the subject premises for three or four nights a week only, spending the other nights in her own premises, and that, moreover, Mrs Elliott’s son continued to live in her own premises. Moreover, I think that there is help to be derived from the passage in the judgment of Kerr LJ where he said at p 102D of the Estates Gazette report: The judge regarded Mrs Elliott as a ‘visitor’, for want of a better word. One of the dictionary meanings of ‘visit’ is ‘temporary residence with person or at place’. For want of a better word, I think that Mrs Elliott was a visitor, a temporary resident, but without having made her home with her mother, within the ordinary and dictionary meaning of ‘residing with’ her. Her position can hardly be put better than she did herself, entirely frankly, in her evidence, when she said: ‘I moved in with my mother for so long as was necessary.’ There is, in my judgment, a marked contrast with the facts of the present case. On the facts here the appellant could not, on the evidence which the learned judge accepted, fairly be regarded as a visitor. Indeed, the true view would be that she visited her own flat often, but lived with her mother. If, therefore, one asks the simple question, ‘Where and with whom (if anyone) did the appellant reside?’, the answer could, I think, only be that she resided at 50 Gloucester Place Mews with her mother. The corollary of that conclusion must be that which Mann LJ has already indicated, that the appeal should be allowed. The appeal was allowed with costs here and below. Leave to appeal to the House of Lords was refused.