Hallwood Estates v Flack

Landlord and tenant — Possession — Bedroom in premises used as school — Occasional occupation — “Animus revertendi” — Landlord’s appeal dismissed This was the appeal of Hallwood Estates, Ltd, against the dismissal by Deputy Judge Webber at Kingston-on-Thames County Court, of their claim against Mr Samuel Harvey Flack, for an order for possession of “The Firs,” Palace Road, East Molesey. Mr RE Megarry (instructed by HCC Hanne & Co) appeared for the appellants; Mr Leslie Wainstead (instructed by Zeffert, Heard and Morley Lawson) represented the respondent. Mr Megarry said the claim concerned a large house used as a private school (of which Mr Flack was the proprietor) with the exception of one room that was fitted up as a bedroom which was occupied occasionally by him. The sole point in the case was whether the respondent sufficiently resided in the premises so as to have conferred on him the benefits of a statutory tenancy under the Rent Restrictions Acts. His actual residence, that was the house he occupied with his wife, was some distance away. Counsel said there was a line of cases covering the point. He was going to say: “I think I am right in saying that this case goes further than any reported case,” when the Master of the Rolls (Sir Raymond Evershed) said: “They all do.” Mr Megarry read the judgment of the Deputy County Court Judge, who said that the notice to quit given by the appellants expired in July, 1948. Since then Mr Flack had retained possession, claiming to be protected by the Rent Restrictions Acts. The Deputy Judge declared that he had proved an intention to return and live at “The Firs,” when the house where he and his wife actually lived was sold. Mr Megarry submitted that after some date in 1949 Mr Flack ceased to occupy the premises as a home, and he could not thereafter put forward or revive an intention to reside there. Mr Wainstead, replying for Mr Flack, said the evidence was that the latter had had intention for some time to move from his house at Lower Teddington Road and live permanently at “The Firs.” That, he said, was a question of fact and Mr. Megarry had unsuccessfully tried to turn a question of fact into one of law. A mere animus revertendi was not enough, he agreed. There must be some overt act, and that was supplied by Mr Flack providing a furnished bedroom at “The Firs.” That furnished room was his dwelling-house for which he was entitled to the protection of the Rent Acts. The Master of the Rolls, giving judgment, said he had come to the conclusion that the decision of the Deputy County Court Judge was right. He referred to the case of Brown v Brash (1948, II KB) as having a particular application to the present appeal, and went on to say that cases of “two-home men” were not of common occurrence, and each one had to be considered on its own facts. Any attempt to extend the application of decisions in such cases as Brown and Brash and Menzies v Mackay (1938, Sessions Cases) which latter dealt with the position of a sailor, might be, as Mr Megarry had suggested, to say that seafaring men could have a statutory tenancy in every port. His Lordship went on to deal with the facts of the present appeal, and said that Mr Flack slept in the bedroom at the school during the war, and in 1949 he used the room, “but not on a lot of occasions.” The County Court Deputy Judge said that although Mr Flack “ceased to occupy the bedroom as his home” during the latter part of 1949, yet he had repelled the presumption that he did not intend to return by leaving on the premises a “deliberate symbol of continued occupation,” viz, a bedroom furnished for use. The question whether the presumption had been repelled was a question of fact, and in order to determine that question it had to be decided whether the respondent had the intention of returning to live at “The Firs” as his home. The Judge found that he had, and, said his Lordship, that finding was correct. He also referred to the case of Elliott v Camus, reported only in THE ESTATES GAZETTE Digest for 1949, and the ‘Current Law Year Book, 1949.’ Lord Justice Asquith, agreeing, said the animus had been abundantly established, and that the respondent had also proved the necessary corpus. Lord Justice Jenkins also agreed. The appeal was dismissed, with costs.