Duke and another v Porter

Rent Act 1977 — Animus revertendi — Appellant was the freehold owner of premises used for business but which contained a residential flat — He was also the tenant of a dwelling-house subject to the Rent Act — The question was whether he could resist a possession action by his landlords who alleged that he had ceased to reside in the dwelling-house — There had been earlier unsuccessful proceedings brought by the landlords in which the judge had decided that the appellant had shown an intention to return — The issue in the present proceedings was whether that intention still existed or whether it had been abandoned — The facts were that the appellant had since the death of his wife lived in the flat in his freehold premises where he had assistance in looking after his young children — After the first possession proceedings the appellant took steps to get rid of a subtenant of part of the|page:102| dwelling-house and had begun to redecorate it but ceased to do so when it appeared that the superior landlords wished to modernise it — He used the house largely as a store for furniture — There had been more than one opportunity since 1983 for the appellant to return to the house, but he had not done so until after the present proceedings had commenced, when he and his children did physically go back — He had earlier made some motions towards occupation when the proceedings had become imminent, but sometimes this merely meant that he went to the house to sleep — The judge concluded that these actions were too late and were indeed a facade or pretence and he found that the intention to occupy had been abandoned — Held by the Court of Appeal that there was evidence on which the judge was entitled to so hold and that he had directed his mind to the question of intention as well as to the facts of physical occupation — Appeal dismissed The following case is referred to in this report. Gofor Investments Ltd v Roberts (1975) 29 P&CR 366, CA This was an appeal by Eric Porter, defendant in an action for possession by Richard Dennis Duke and Martin Richard Lewis Duke, landlords of a dwelling-house known as no 3 Cottage, Byrds Farm, Saffron Walden, of which the appellant was the tenant. Judge Taylor, at Bishop’s Stortford County Court, had granted the plaintiff landlords, the present respondents, an order for possession of the dwelling-house. The appellant appeared in person; Simon Tattersall (instructed by Wild Hewitson & Shaw, of Saffron Walden) represented the respondents. Giving the first judgment at the invitation of O’Connor LJ, PARKER LJ said: The appellant, Mr Porter, who appears in person, became the tenant of no 3 Cottage, Byrds Farm, Saffron Walden, in 1950. He has three children, a son Robin and a son Matthew, born respectively in 1963 and 1971, by his first wife, from who he was divorced in 1973. He then married a second time; by his second wife he had a third child, Rachel, born on July 24 1974. Tragically she died on February 5 1975, leaving the appellant with a son aged 4 and a daughter of under one year to bring up. He was then running his own business from freehold premises at 12 Market Hill, Saffron Walden, over which there is a small flat. For some years prior to 1975 he was living partly at no 3 cottage and partly at 12 Market Hill from 1975 until 1982 he lived wholly at 12 Market Hill. For the understandable reason that he would have been quite unable to leave those two very young children in the premises at no 3 Cottage. At 12 Market Hill he was able to obtain the assistance of his mother to look after them in those premises when he could not be there. He did, however, visit no 3 Cottage twice daily to feed cats and chickens and also to look after his garden. He sublet part of the premises at no 3 Cottage in 1979 to a Mr Dalziel. This he did, not only with the consent of, but also at the request of, the respondents, who were, and are, his landlords. On February 16 1982, Mr Porter having been out of occupation since 1975, his landlords gave notice to quit, determining the contractual tenancy on March 17 1982. Thereafter they promptly commenced proceedings for possession. The only issue being raised was that the Rent Acts did not apply, and that Mr Porter was not entitled to the protection afforded by them on the ground that he had ceased to occupy the premises as a resident, and consequently that section 2(1) of the 1977 Act had no application. The landlords contended that he had ceased to occupy since he had not been there for seven years, notwithstanding that his furniture remained in the premises and that part of the premises — that is to say, the part not occupied by Mr Dalziel — could have been occupied by him; that was sufficient to put upon him the burden of showing that his furniture, which remained on the premises as indicia of occupation, was accompanied by a real intention to return. Both those matters were matters which, in the circumstances, were for him to establish: see Gofor Investments Ltd v Roberts (1975) 29 P & CR 366. On that occasion the landlords failed in their action; accordingly possession was not ordered, it being held that the Rent Acts continued to apply. In his notes of judgment on that occasion, His Honour Judge Taylor, from whom the present appeal lies, said this: He tells me he wants to go back. Today I do not disbelieve him. Matters will be very different if he does not go back within the immediate future. That judgment having been given, Mr Porter set about getting Mr Dalziel out of the premises; he did not finally succeed until April 1983. He says that he then started to redecorate no 3 with a view to reoccupying, but that he ceased his redecoration operations when the superior landlords’ agent, Mr Thompson, indicated that there was an intention to modernise the premises. This led to correspondence between Mr Porter’s solicitors and Mr Thompson, which terminated on November 24 1983. The only letter which it is necessary to read from that correspondence is the last letter; it says this: Mr Porter would welcome a modernisation scheme, necessarily involving certain repairs. However, Mr Porter is anxious to hear as to exactly what is proposed to be done and when because his own programme of painting and redecoration undertaken with a view to moving in again after the departure of Mr Dalziel, is now being held up. A start has been made but obviously if window frames are going to come out, plaster be renewed etc., there appears to be little point in Mr Porter going to much expenditure, time and money at this stage. We therefore look forward to hearing from you. In fact they did not hear from Mr Thompson, and no further communication between Mr Porter, or his solicitors, and Mr Thompson occurred thereafter, except that Mr Porter tells us that in about February he had a conversation with Mr Thompson. Unfortunately Mr Thompson ceased to be the agent for the superior landlords in about the spring of 1984, although this was unknown to Mr Porter until shortly before the present proceedings were brought. In February of 1985 the landlords again brought proceedings, this time on three grounds. On the assumption that the Rent Acts applied, their application was based on nuisance to adjoining occupiers or acts of waste and then on arrears of rent. The third ground was that the Rent Acts no longer applied. As I have said, the proceedings commenced in February; they were adjourned to April 12 and finally to June. In April, on the advice of the tenants’ association, Mr Porter and his children physically moved back into the premises. At the hearing the respondents in effect failed on grounds 1 and 2, but succeeded on the third ground, namely that the Rent Acts did not apply. Accordingly, on June 3 the judge made an order for possession; it is from that judgment that Mr Porter now appeals. The judge referred back to his notes for judgment; there is no suggestion that his notes taken then were in any way inaccurate. The finding that the learned judge did not disbelieve Mr Porter on that occasion must be taken as a positive finding that he had at that time an intention to return. So far as the hearing last year is concerned, it is only necessary to read a small part of the judgment, much of which, as was the evidence, was taken up concerning the condition of the premises and garden, particularly with regard to the period from April 12 onwards. At p 24 of the bundle the learned judge said this: . . . the evidence of the plaintiff is that the defendant and his family have not lived there since the last hearing before me save that there was a tent in the garden for a night or two in August 1984. Mrs Maytum-Wilson’s evidence is compelling and I accept it. Defendant says he intended to move in. He says he was delayed by Dalziel until March 1983. Delayed by Mr Thompson until August 1983. Did work in summer of 1983 and 7 weeks in August 1984. As to the use of the property, all the evidence from the neighbours and the other witnesses is that the property was used as a store for furniture which is piled up in it . . . I have seen all the parties and witnesses examined and cross-examined and waiting in court. I bear in mind the defendant’s warning that all the plaintiff’s witnesses are employed by the plaintiff. That does not apply to Mrs Maytum-Wilson. I have to say that where the evidence of the plaintiff and his witnesses conflict with that of the defendant on his occupation of the house I far prefer that of the plaintiff. I have no doubt as to what my decision should be. It is impossible not to have considerable sympathy for defendant. Left with two young children to bring up without their mother. In July 1982 I did not disbelieve him when he said he wanted to go back. In February 1983 there was an opportunity to start returning which he didn’t take. He filled up the space which Dalziel vacated with furniture. His use of the property in August 1984 was as a camping ground. He still has the Saffron Walden premises freehold. I find that from the time Dalziel left, he was occupying these premises not as a dwelling-house but as a warehouse or store, and continued so to do for 14 months, when with these proceedings imminent he purported to occupy them as a dwelling, and to back it up after proceedings had started. This was too late in the day. It was not genuine anyhow. At times he merely arrived there to sleep. Harrison’s evidence rings true to me. What|page:103| has happened is that the time of the adjournment has been occupied by making a facade or pretence that he is occupying the house as a dwellinghouse, I find he is not and the evidence of Mrs Maytum-Wilson is compelling. In my judgment the position is this, that having found that there was an intention to return in 1982, the question in the present proceedings was whether that intention had been abandoned. It would seem clear that it had not been abandoned until at the earliest November 1983. Mr Porter had set about getting Mr Dalziel out; had succeeded in April 1983; he had started to redecorate; he had stopped when the modernisation plan was produced, and he was entitled to expect that his intention to return should be regarded as having been maintained until that time. In my judgment not only was he entitled to expect that, but the judge so found, for he refers in the passage from his judgment which I have just read to Mr Porter’s failure to use the premises as a dwelling-house for 14 months up to the time the proceedings had started. The questions therefore are presumably these: first, was there evidence on which the learned judge was entitled to find that an intention to return, which was essential to the continued protection of the Rent Acts, and which had existed in 1982 and continued to exist until November 1983, had been abandoned? Second, whether the learned judge had directed his mind to that question at all. I have no doubt that there was evidence on which he could have held that the intention had been abandoned. Had the intention remained, it is plain that Mr Porter could have moved in in the summer of 1984, or indeed at any time after November 1983. Mr Porter gave evidence that he had done so; the evidence of the other witnesses was that he had not — that he had merely used it as a camping ground during the holidays in the summer of 1984. The learned judge was entitled to accept the evidence of the other witnesses. That he could have so moved in appears to be beyond all argument, since he moved in finally in April of 1985 and has remained there since. The matter on which I have felt some doubt was whether or not the judge had properly directed himself to the right question and had instead merely considered whether there was physical occupation in the period. Having reread his notes of judgment more than once, I have come firmly to the conclusion that the learned judge did direct his mind to the right question. His reference to Mr Porter’s position ‘not being genuine anyhow’ can, I think, only refer to the intention to return. It makes no sense unless it is so regarded, and when a learned judge with the experience of the Rent Acts that this learned judge must be taken to have proceeded on that basis, I find it impossible to hold that he has not directed his mind to the right question. Indeed, Mr Porter’s notice of appeal itself indicates that there is no real matter upon which this court could interfere. It appears at p 3 of the bundle; again and again one finds the submission being made that the learned judge failed to give proper weight to his evidence, or that he failed to give proper weight to other matters. The question whether there has been a continued, and continuing, intention to reoccupy is, as has been pointed out in many cases, and not least in Gofor, a question of fact for the judge, on which this court would interfere only if well-known conditions were satisfied. None of them is in this case. Accordingly, although, like the learned judge, I have sympathy with Mr Porter, I would dismiss this appeal. SIR GEORGE WALLER agreed and did not add anything. Also agreeing, O’CONNOR LJ said: Like Parker LJ, I, too, have some sympathy with Mr Porter, but I can find no grounds which would enable this court to interfere with the decision of the learned judge. I, too, would dismiss the appeal. The appeal was dismissed with costs, including costs already reserved. Possession was ordered in two months from date of judgment.