Rent Act 1977 — Statutory tenancy — Whether tenant continued to occupy flat as his residence — Statutory tenant of a London flat began in 1978, after his retirement as a teacher, to stay with his wife in a cottage in Lancashire which his wife had inherited and which had previously been used for holidays only — Until he came to London for the trial of the present action in 1987 the husband had not been back to London at all and his wife had been back on three occasions only, to visit a sick child, to supervise rewiring and after a burglary — Since 1978 the flat had been occupied by the couple’s four children and three of them, together with the husband of one of them, still lived there or had done until recently — The question was whether, in these circumstances, the defendants could resist an action for possession by the landlords on the ground that the husband’s statutory tenancy continued to subsist — The county court judge decided in the defendants’ favour — He found no difficulty about the establishment of a corpus possessionis in the shape of the furniture and the children left behind in the flat — As regards the animus revertendi, the judge took account of the husband’s statement in evidence that he continued to regard the flat as his London home, that he would probably go back to the flat if his wife died first, and that in a few years’ time he and his wife (both now in their seventies) might well have to move back to the flat, as it would be difficult to cope with the more primitive and uncomfortable conditions in the cottage, despite its scenic attractions — There was some evidence by a daughter that her parents would not be able to manage at the cottage and that she and a sister would like to help to look after them in the London flat — There was some other evidence of less weight, but altogether the judge was satisfied that the animus revertendi was established — The landlords appealed
of his judgment Neill LJ reviewed a number of authorities, in particular Gofor
Investments Ltd v Roberts, Brown v Brash and Tickner v Hearn, and formulated four guidelines as to the correct approach to
be adopted by a county court judge — Held that, although this was a borderline
case, and a troublesome one, it was impossible on the authorities to interfere
with the decision reached by the judge after a careful consideration of the law
and the facts — Ralph Gibson LJ expressed some sympathy with the view that some
of the cases were going too far in discerning an intention to return in spite
of a prolonged voluntary absence, but accepted that the judge’s conclusion had,
on the authorities, been open to him — Appeal dismissed
The following
cases are referred to in this report.
Beck v Scholz [1953] 1 QB 570; [1953] 2 WLR 651; [1953] 1 All ER 814,
CA
Brown v Brash [1948] 2 KB 247; [1948] 1 All ER 922, CA
Cove v Flick [1954] 2 QB 326n; [1954] 3 WLR 82n; [1954] 2 All ER
441, CA
Gofor
Investments Ltd v Roberts (1975) 29 P&CR
366, CA
Hall v King [1987] 2 EGLR 121; (1987) 283 EG 1400, CA
Hampstead
Way Investments Ltd v Lewis-Weare [1985] 1
WLR 164; [1985] 1 All ER 564; [1985] 1 EGLR 120; (1985) 274 EG 281, HL
Tickner
v Hearn [1960] 1 WLR 1406; [1961] 1 All ER
65, CA
This was an
appeal by the landlords, Brickfield Properties Ltd, from a decision of the late
Judge John Edwards, at West London County Court, dismissing their action to
recover possession of a first-floor flat at 20 Ashburnham Mansions, Ashburnham
Road, London SW10. The respondents consisted of the first defendant below, John
Glynne Hughes, the tenant to whom the flat had been let, the second and third
defendants, a daughter and her husband, and the fourth defendant, a son.
David
Neuberger QC (instructed by Memery Crystal & Co) appeared on behalf of the
appellants; M R Dencer (instructed by Oliver O Fisher & Co) represented the
respondents.
Giving
judgment, NEILL LJ said: This is an appeal by Brickfield Properties Ltd, the
landlords, from the decision of the late Judge John Edwards in the West London
County Court on April 2 1987 whereby he dismissed the landlords’ claim for
possession of a flat on the first floor of 20 Ashburnham Mansions, London SW10.
Mr J G Hughes,
the first defendant, who is now aged 74, was granted a lease of the flat in
July 1965 by the predecessors in title of the landlords for a term of seven
years from September 29 1961. The lease expired on September 29 1968, and it is
common ground that thereafter, until the summer of 1978, Mr Hughes remained in
the flat as a statutory tenant. It is to be noted that Mr Hughes had in fact
lived at the flat with his wife since their marriage in 1954.
The question
at issue before the judge was whether Mr Hughes continued to be a statutory
tenant after the summer of 1978 and could therefore rely on the protection of
the Rent Act 1977. The judge decided this issue in his favour.
The primary
facts were not in dispute.
In or about
1970 Mrs Hughes inherited a cottage at Carnforth in
holidays. In 1978, however, Mr Hughes retired from his work as a teacher. After
spending the summer holiday in the cottage that year Mr and Mrs Hughes stayed
on. They have been in the cottage at Carnforth ever since. Indeed, until he
came to London at the end of March 1987 for the purpose of attending the trial,
Mr Hughes had not been back to the flat at all. In those eight and a half years
or so Mrs Hughes has been back to the flat on three occasions only, but on each
occasion there was a special reason for the visit and all the visits were
before 1982. On one occasion she came to visit a sick child; on another
occasion she came so that there could be someone in the flat when rewiring was
being carried out; and on the third occasion there had been a burglary.
Since 1978 the
flat has been occupied by the four children of Mr and Mrs Hughes. It was the
home where they were brought up and some of them have stayed on since they
became adults. Mrs Nicholas, the second defendant, a daughter now aged 32,
lives there with her husband, the third defendant. Two other children —
Jonathan (33), who is the fourth defendant, and Polly (29) — also live there or
have done until recently. David Hughes, now 31, lives in Lancashire, not far
from his parents.
What, then, is
the law, because, as the judge put it in his judgment: ‘in ordinary terms and
language’ Mr and Mrs Hughes were living in the cottage between 1978 and the
date of the trial?
Section 2 (1)
of the Rent Act 1977 is in these terms:
Subject to
this Part of this Act —
(a) after the termination of a protected tenancy
of a dwelling-house the person who, immediately before that termination, was
the protected tenant of the dwelling-house shall, if and so long as he occupies
the dwelling-house as his residence, be the statutory tenant of it.
It is also
necessary to read section 2 (3). That subsection provides:
In subsection
(1)(a) above and in Part I of Schedule 1, the phrase ‘if and so long as
he occupies the dwelling-house as his residence’ shall be construed as it was
immediately before the commencement of this Act (that is to say, in accordance
with section 3 (2) of the Rent Act 1968).
That takes one
to the 1968 Act. Section 3 (2) of the 1968 Act is in these terms:
In paragraph
(a) of subsection (1) above and in Schedule 1 to this Act, the phrase
‘if and so long as he occupies the dwelling-house as his residence’ shall be
construed as requiring the fulfilment of the same, and only the same, qualifications
(whether as to residence or otherwise) as had to be fulfilled before the
commencement of this Act to entitle a tenant, within the meaning of the
Increase of Rent and Mortgage Interest (Restrictions) Act 1920, to retain
possession, by virtue of that Act and not by virtue of a tenancy, of a
dwelling-house to which that Act applied.
The effect of
section 3 (2) of the Rent Act 1968 was considered by Cairns LJ in Gofor
Investments Ltd v Roberts (1975) 29 P&CR 366. At p 369 the
learned lord justice said:
So the effect
of that subsection was that in considering whether a person did retain a
dwelling-house as his residence, one had to look at the authorities prior to
1968 to see what the position was.
It was laid
down in a number of cases from the 1920s onwards that the fact that the person
was not physically in residence at any particular time did not mean that the
house had ceased to be his residence. I take as a convenient summing-up for the
purpose of this case one sentence from the judgment of Ormerod LJ in Tickner
v Hearn [1960] 1 WLR 1406
as expressed
in the headnote:
In such cases
that is cases
of the kind to which I have been referring
there must be
a real hope of return coupled with the practical possibility of its fulfilment
within a reasonable time.
Cairns LJ then
went on to cite a passage from the judgment of the Court of Appeal delivered by
Asquith LJ in Brown v Brash and Ambrose [1948] 2 KB 247. Brown
v Brash can be regarded as the leading authority in this branch of
the law, and I therefore propose to cite the same passage. In Brown v
Brash Asquith LJ, delivering the judgment of the court, said at pp 254-5:
We are of
opinion that a ‘non-occupying’ tenant prima facie forfeits his status as a
statutory tenant. But what is meant by ‘non-occupying’? The term clearly cannot cover a tenant who,
for however short a time, or however necessary a purpose, or with whatever
intention as regards returning, absents himself from the demised premises. To
retain possession or occupation for the purpose of retaining protection the
tenant cannot be compelled to spend twenty-four hours in all weathers under his
own roof for three hundred and sixty-five days in the year. Clearly, for
instance, the tenant of a London house who spends his week-ends in the country or
his long vacation in Scotland does not necessarily cease to be in occupation.
Nevertheless, absence may be sufficiently prolonged or unintermittent to compel
the inference, prima facie, of a cesser of possession or occupation. The
question is one of fact and of degree. Assume an absence sufficiently prolonged
to have this effect: The legal result seems to us to be as follows: (1) The
onus is then on the tenant to repel the presumption that his possession has
ceased. (2) In order to repel it he must at all events establish a de facto
intention on his part to return after his absence. (3) But we are of opinion
that neither in principle nor on the authorities can this be enough. To suppose
that he can absent himself for five or ten years or more and retain possession
and his protected status simply by proving an inward intention to return after
so protracted an absence would be to frustrate the spirit and policy of the
Acts, as affirmed in Keeves v Dean [1924] 1 KB 685 and Skinner
v Geary [1931] 2 KB 546. (4) Notwithstanding an absence so
protracted the authorities suggest that its effect may be averted if he couples
and clothes his inward intention with some formal, outward, and visible sign of
it; that is, installs in the premises some caretaker or representative, be it a
relative or not, with the status of a licensee and with the function of
preserving the premises for his own ultimate home-coming. There will then, at
all events, be someone to profit by the housing accommodation involved, which
will not stand empty. It may be that the same result can be secured by leaving
on the premises, as a deliberate symbol of continued occupation, furniture;
though we are not clear that this was necessary to the decision in Brown v
Draper [1944] KB 309. Apart from authority, in principle, possession in
fact (for it is with possession in fact and not with possession in law that we
are here concerned) requires not merely an animus possidendi but a corpus
possessionis, namely, some visible state of affairs in which the animus possidendi
finds expression. (5) If the caretaker (to use that term for short) leaves
or the furniture is removed from the premises, otherwise than quite
temporarily, we are of opinion that the protection, artificially prolonged by
their presence, ceases, whether the tenant wills or desires such removal or
not.
In addition, I
propose to refer to the judgment of Upjohn LJ in Tickner v Hearn [1960]
1 WLR 1406. I can take the facts of that case conveniently from the headnote:
An elderly
lady, the statutory tenant of a rent-controlled house in which she lived with
her unmarried daughter, went on a temporary visit to another daughter in July
1954. While there, she had a breakdown and was admitted to a mental hospital
under a summary reception order, suffering from paranoid schizophrenia. She
remained in the hospital continuously thereafter, though by November 1959, when
she was 73, she had so far improved as to be regraded to voluntary status and
became entitled to discharge herself at short notice. Her unmarried daughter
continued to maintain the house as their home.
In December
1959, landlords, who had purchased the house in January of that year, brought
proceedings against the tenant and her daughter, claiming that in view of her
long absence the tenant was no longer entitled to the protection of the Rent
Restriction Acts, and as the daughter’s right to occupation depended on that of
her mother, she was similarly disentitled from remaining in possession.
The county
court judge found that, though it was unlikely in view of the tenant’s age and
condition that she would ever leave the hospital, she had always regarded the
house as her home and frequently expressed the hope of going back there, and
that in view of the advances in medical treatment and her own improvement the
possibility of her return to her home one day could not be ruled out. He held
that the evidence was just sufficient to discharge the onus on the tenant, and
had satisfied him that there had been no real abandonment of possession. On the
landlords’ appeal:
Held,
dismissing the appeal, that there was evidence on which the judge could find an
intention to return to live in the house.
Among the
issues which the judge had to decide were whether, in view of her mental
condition, Mrs Hearn was capable of forming an intention to return and whether
there was a real possibility of her return within a reasonable time. At p 1416
Upjohn LJ dealt with the second of these issues as follows:
. . . I am of
opinion that to establish an intention to return, by itself, is not necessarily
sufficient to obtain the protection of the Acts. The ultimate fact to be
established is the fact of occupation, for it is only those in occupation whom
the Act protects. If a tenant is out of occupation for some time he must at
least prove an intention to return; but if the circumstances of the case are
such that by reason of mental or physical illness or for some other reason the
intention, even if clearly and bona fide held, seems most unlikely to be
achieved within a reasonable time, it must surely be open to the judge in a
proper case to find as a fact that the tenant is not in occupation.
A little
later, having referred to a passage in the judge’s judgment, Upjohn LJ
continued at p 1417:
. . . As I
read his judgment
that is the
judgment of the judge
the
conclusion which he reached was that, looking at all the facts during her
mental illness, he regarded it as a borderline case, but he came to the
conclusion on those facts that she had established an intention to return and,
at least, a real possibility of her return within a reasonable time.
From these
passages, and from other passages to which we were
extract the following guidelines as to the correct approach to be adopted by a
county court judge:
(1) Where the tenant’s absence is more prolonged
than is to be explained by holiday or ordinary business reasons and is
unintermittent, the onus lies on the tenant of establishing an intention to return
if he seeks the protection of the Act.
(2) An inward intention, however, is not enough.
It must be accompanied by some outward and visible sign of the tenant’s
intention. The continued occupation by a caretaker or relative or the continued
presence of furniture may be sufficient, but in each case the question is
whether or not the person or furniture can be regarded as a genuine symbol of
his intention to return ‘home’.
(3) In addition the tenant must show that there
is a ‘practical possibility’ — to use the phrase used in Tickner and by
Ormerod LJ in Gofor — or a ‘real possibility’ — to use Upjohn LJ’s
expression in Gofor — of the fulfilment of that intention within a
reasonable time. What is a reasonable time depends on the circumstances, but it
is to be noted that in Gofor the Court of Appeal declined to interfere
with the judge’s finding that in the circumstances of that case 10 years was a
reasonable time.
(4) The protection of the Act can be claimed even
though the tenant has another home or residence — the two words appear to be
synonymous in this context (see Lord Brandon in Hampstead Way Investments
Ltd v Lewis- Weare [1985] 1 WLR 164, 169)* — but the court will look
with particular care at two-home cases.
*Editor’s
note: Also reported at [1985] 1 EGLR 120.
Before turning
to the facts of the present case, I propose to remind myself finally of the
words used by Lawton LJ in Gofor when considering the approach of an
appellate court where the judge had correctly directed himself as to the law.
Having decided that the judge had asked himself the correct question, Lawton LJ
continued (at p 375):
This court
next has to inquire whether the evidence was sufficient to support his
findings. Another way of putting this issue is to ask whether his findings on
the evidence were so unreasonable as to be perverse. The judge gave most
careful attention to the evidence in this case and he came to the conclusion,
surprising, perhaps, to some, that there was a real intention to return and a
sufficient corpus possessionis.
I return to
the case presently before the court. I can deal shortly with what is called the
corpus possessionis. Mr Hughes relied on the fact that the flat was
occupied by members of his family and on the fact that, though he had taken his
clothes with him, he had left his furniture and books behind. It was argued on
behalf of the landlords that, though these facts were not disputed, there was
no evidence that either the family or the furniture were there for the purpose
of the alleged homecoming, and the only reason why the furniture had not been
taken was because the cottage was fully furnished.
The judge,
however, disposed of this matter in a few words. According to the note of his
judgment with which we have been provided he said:
I move to the
corpus possessionis;, it is in dispute. However I feel I can deal
with that matter pretty shortly on a simple finding. Listed in the further and
better particulars are the items of furniture etc left by the first defendant
in the flat. Mr Hughes spoke of them in evidence. That is the first element.
Secondly, quite apart from that, it cannot be disputed that he left behind some
of his children. There is a dispute as to their status in the flat. I believe,
however, that I am entitled to find, and do find from the facts that the bulk
of his possessions and his loved ones are left in the flat, that Mr Hughes does
quite easily establish corpus possessionis.
It seems to me
that there was evidence on which the learned judge could reach that finding,
and it is not a finding with which I think this court can or should interfere.
The arguments
concerning Mr Hughes’ intention, however, are more difficult. Here it is
necessary to cite a substantial passage from the judge’s judgment. First the
judge set out the test which he had to apply. He put it in this way:
Does the
defendant prove
(i) an intention to return;
(ii) plus a real possibility of returning;
(iii) within a reasonable time.
Lower down on
p 46 he continued as follows:
That leaves animus
revertendi. I have already said that I accept everything that Mr Hughes
told me and think it fair to comment that he was a conspicuously honest
witness. It would have been only too easy for him to say that he was intending
to go back to the flat some time. However, he has not said that. He says that
he intends to live and to continue to live indefinitely in Carnforth in the
bungalow. However, he has also said that he has continued to regard the flat as
his London home, and says he did not positively say or do anything to assign it
over to his children.
It does count
a little that he has continued to pay for the flat, although he has been taking
contributions from his children. Relevant and marginally weighty are six
factors linking him to London. They are not worth much, as both counsel are
agreed.
The learned
judge then set out a number of matters, such as the fact that his pension book
showed his London address and his entry in the London telephone directory.
However, as the judge regarded them as of only limited importance I do not
think it is necessary for the purposes of this judgment to refer to them in
detail. The judge continued:
These are some
practical things. Now I turn again to what he said and what he meant.
Though he
lived in the bungalow as his current main home since 1978, he said that
he has considered 20 Ashburnham Mansions as his London home throughout. That
may be of light weight, but it is relevant.
Secondly, he
has said that he intends to go back to the flat one day to live. He said that
most clearly, I regret to say, in answer to a question from me, and I am not
quite sure what his exact answer was. The defendants’ solicitors’ note, which
roughly accords with mine, is that ‘I did have a basic intention to go back’.
My own note reads: ‘Basic intention was to go back to the flat one day’. I do
not remember if ‘basic’ was his word or mine. He went on to say that he would like
to go back to the flat, but his wife was happier in Lancashire and he was too.
Counsel for the plaintiffs had a slightly different recollection and note.
Anyhow, I take from Mr Hughes a statement that he does intend to go back to
live in the flat.
There are two
clear circumstances which he indisputably said would involve him going back to
the flat.
The first, and
especially notable, is if his wife should die first. He would probably have to
go back to the flat then; he is 74 and she is 71, but, as he told me, not well.
The point is that if he was left alone in the bungalow he could not cope on his
own. He would have to go back to London to be looked after by his daughters.
The second
circumstance in which he might have to go back is in a few years’ time — he
mentioned a period of 5 years from now — when it might come about that he and
his wife could not continue to cope at Carnforth. There is plenty of evidence
about Carnforth. It is attractive scenically, but uncomfortable and primitive.
What he means and what I accept is that the time cannot be far away when both
he and his wife, ageing as they are, will have to move back to the flat.
A third
element comes from the evidence of his daughter Jane. I find as a fact, if
necessary, that the family is an affectionate and close one and they get on
well together.
Jane says: ‘I
should like to take care of my father at the flat . . . I think that will have
to happen pretty soon . . . I’d rather like my father and my mother to come
here and live with us. The cottage looks pretty but I don’t think they could
manage much longer or last another winter there. Polly would help.’ I think I am entitled in my judgment to give
weight to Jane’s evidence at least on the second aspect of the observations I
have cited from Upjohn LJ, namely the ‘real possibility’ of the first defendant
returning to 20 Ashburnham Mansions.
It seems to
me that my task is to weigh up these considerations, which I accept, against
the potent effect of evidence that the first defendant has lived elsewhere for
nearly 9 years and has never come to London. It is a matter of balancing the
evidence, and there is a conflict of inference. The proper basis on which to
approach the matter is the balance of probabilities. The burden is on the first
defendant, as I have said. All I can say is that the matter is not simple and
is very borderline, but in all these circumstances, I have reached the clear
conclusion that the first defendant has established what he has to, namely that
he has an intention to return. Although he has been living in Lancashire for
nearly 9 years, my decision is that he has a sufficient animus revertendi,
that is an intention coupled with a real possibility of perfecting that
intention, and that he is therefore still in occupation of 20 Ashburnham
Mansions as his residence, and so his statutory tenancy still survives.
It was argued
on behalf of the landlords that the two possibilities mentioned by Mr Hughes —
that his wife might predecease him and the risk that, with increasing age, they
might not be able to cope at Carnforth, even if they both survived — showed
that his intention was conditional and was too vague and uncertain to satisfy
the test of intention laid down in the cases.
The question
which the judge had to consider was whether, on the facts, there was a real
possibility that Mr Hughes’ intention to return would be fulfilled in a
reasonable time. As to this the judge was clearly impressed by the daughter’s
evidence that she did not think that they could last another winter in the cottage.
It seems to me that, though the prospect of Mr Hughes coming back because his
wife had predeceased him might well have failed the test of a real possibility,
the judge was entitled to infer and did infer that there was a real possibility
that with advancing years they will both have to come back
I confess that
I have found this a troublesome case, but in the end I have come to the
conclusion that it is impossible, in the light of the authorities, to interfere
with the decision which the judge reached after what was clearly a very careful
review both of the law and the facts. Accordingly, I for my part would dismiss
the appeal.
I would add
this. As the judge recognised, this is a borderline case. It seems to me that
in a case such as the present the burden on the trial judge is an onerous one,
because the scope for an appellate court to interfere is very limited. The
court is clearly under a duty to extend the protection of the Rent Act to all
those who need it. But it is to be remembered that the policy of the Act is to
protect a personal right of occupation and that the words in section 2(1) of
the Rent Act 1977 are ‘if and so long as he occupies the dwelling-house as his
residence’. It seems to me, therefore, that it is particularly important in
cases where it is said that the tenant has two homes to scrutinise the evidence
with care in order to distinguish between the case where the second ‘home’ is
indeed a present residence and the case where the second ‘home’ is retained
merely as a convenience for possible occasional visits or as premises which one
day in the future may become a residence. I have in mind the words of Sir
Raymond Evershed MR in Beck v Scholz [1953] 1 QB 570 where, at p
575, he said:
. . . I
cannot see that it would be in accordance with the main principle and purpose
of the rent restriction legislation to hold that a man may have statutory
protection for any premises to which he may occasionally find it convenient to
resort, and in which he may keep furniture and install a caretaker, when in no
true sense of the term are those premises his ‘home’, for example, where they
are merely used as a matter of convenience for occasional visits.
Nevertheless,
on the facts of the present case, and in the light of the judge’s findings, for
the reasons which I have endeavoured to outline, I for my part would dismiss
this appeal.
Agreeing,
RALPH GIBSON LJ said: There is in my judgment only one real issue in the
appeal, namely whether such intention to return to the flat as Mr Hughes has
had over the years is sufficient for the purposes of the Rent Act 1977. On this
matter I have found the case of some difficulty.
The learned
judge reached the ‘clear conclusion’ that Mr Hughes had established an
intention to return. The matter was, in the judge’s view, very borderline. The
intention to return was sufficient because the intention was coupled with a
real possibility of perfecting the intention.
The nature of
Mr Hughes’ intention which the judge found to be established is as follows.
Since leaving the flat in 1978 Mr Hughes:
(1) Has had no wish to return to the flat. He and
his wife prefer to live in Lancashire.
(2) After eight and three-quarter years without
personally visiting the flat Mr Hughes still has no wish to return there: he
and his wife still intend to live in the cottage in Lancashire indefinitely for
so long as they are able to do so.
(3) The ‘basic intention’ to return which the
judge accepted Mr Hughes had always had would be carried out only, first, if
his wife should die before him and, second, when he and his wife could no
longer cope with living at the cottage. Mr Hughes thought that might happen in
five years from April 1987, but the judge accepted that that time could not be
far away.
It is clear
that when a tenant claims to be the statutory tenant of a dwelling-house on the
ground that, although he is not residing there, nevertheless he ‘occupies it as
his residence’ by reason of his intention to return to it, the question whether
any intention he has is sufficient for the purposes of the Rent Act is one of
fact and degree to be decided by the judge in all the circumstances of the
case: see Gofor Investments Ltd v Roberts per Cairns LJ at p 373
and Lawton LJ at p 374.
It is open to
this court to set aside the finding of the county court judge on that issue if
it should appear to the court that, on the evidence, the intention which the
tenant had was not such as to satisfy the requirements of the Rent Acts
because, for example, it was too ‘contingent’ or remote as to implementation
(see Cove v Flick [1954] 2 QB 326 per Somervell LJ at p
328).
I think that
the phrase ‘real intention to return’ used by Lawton LJ in the Gofor
Investments case at p 375 includes not only the reality of any purpose of
returning which the defendant may assert but also the remoteness in time and
contingency of any likely implementation of that purpose.
References
have been made to remoteness in terms of the number of years: thus in Brown v
Brash, already cited by Neill LJ, Asquith LJ said:
. . . To
suppose that
a
non-occupying tenant
can absent
himself for 5 or 10 years or more and retain possession and his protected
status simply by proving an inward intention to return after so protracted an
absence would be to frustrate the spirit and policy of the Acts.
But Asquith LJ
continued:
. . .
Notwithstanding an absence so protracted . . . its effect may be averted if he
couples and clothes his inward intention with some formal, outward and visible
sign of it.
In the
Gofor Investments case the tenant had gone out of occupation of the
dwelling-house, a flat, in 1970, and her intention was to return after a period
of ‘not more than 10 years’. It was submitted to the county court judge in that
case that that was not a reasonable time, but he held that the reasonableness
of the time over which the intended absence would extend was to be judged in
the context of all the circumstances. Since the husband was ‘on a pension’ it
was not unreasonable to intend to be away for about 10 years. The county court
judge thought it might be different ‘if they were merely going for pleasure or
something of that sort’, but there was nothing unreasonable ‘in saying that
this flat does not cease to be their home for the time that the children are
being educated in Malta’.
Cairns LJ,
after reciting those parts of the judgment of the county court judge, said that
in his opinion the judge was applying the right test. Lawton LJ noted that
counsel for the landlords had conceded that the judge had asked himself the
right questions, but it is clear I think that Lawton LJ did not question the
correctness of the concession. Accordingly, it seems to me to be impossible for
this court to say that some limit can be set to the length of intended absence:
any absence must be judged in the context of all the circumstances.
I said that I
had found this part of this case to be difficult. My reason is that I find it
hard to see by reference to what principles the county court judge is required to
make his decision ‘in the context of all the circumstances’. He is concerned
with the fact of occupation as a residence and not with general reasonableness
or greater hardship. Parliament has not enacted that a statutory tenant may
retain a dwelling-house ‘as his residence’ if he uses it in fact to provide a
place to live for his children. The test to be applied is that the tenant will
remain a statutory tenant under the Act ‘if and so long as he occupies the
dwelling-house as his residence’, but that phrase is to be construed and
applied in accordance with the case law established immediately before the
commencement of the Rent Act 1968: see Hall v King, June 22
1987,* decided in this court by Sir John Donaldson MR, Lloyd LJ and Balcombe
LJ.
*Editor’s
note: Reported at [1987] 2 EGLR 121; (1987) 283 EG 1400.
In the Gofor
Investments Ltd case the county court judge thought that for the wife of a
man on a pension to go with him to Morocco or Malta to live for 10 years while
the children were educated in Malta was more ‘reasonable’ than if the visit
abroad was for ‘mere pleasure’. That showed — since his view was approved by
this court — that some prolonged absences may be seen as more meritorious than others
for the purposes of the Rent Acts.
It seems to me
to be clear that there is a relevant distinction between an absence caused by
employment or government service or through illness, on the one hand, and an
absence which is more truly voluntary, on the other. Examples of less voluntary
absences are the sea captain mentioned in the early cases and, in Tickner v
Hearn [1960] 1 WLR 1406, to which Neill LJ has referred, the tenant, a
voluntary patient in a hospital, who wished to return to her home but remained
in hospital at all times after a short period of certification because she was
advised to stay and was too unwell to leave.
Mr Neuberger
submitted that the distinction between the absence caused by work or illness
and what he called a purely voluntary absence was of crucial importance in the
judging of a long-intended absence. He argued that the intended absence of Mr
Hughes in this case from 1978 until such time as he and his wife found
themselves unable to cope with life in the cottage in Lancashire was voluntary
and that, having regard to its probable duration in 1978 and the time over
which it has in fact continued, this court should rule that it was not open to
the county court judge to find that Mr Hughes had, for the purposes of the Rent
Acts, a sufficient intention to return.
The learned
judge did not in his judgment expressly consider the matter of voluntariness.
Mr Neuberger, however — rightly, as I consider — disclaimed any contention that
the learned judge had in that regard failed properly to direct himself. Mr
Neuberger had submitted to the judge below the argument that he addressed to
us, and the judge’s use of the word ‘sufficient’ indicated that he was finding
not only that Mr Hughes had at all times had the intention described above but that,
in the light of the authorities, it had the necessary quality. The learned
judge had, in short, considered it in the light of all the circumstances in
accordance with the guidance given by the Gofor Investments case and
found it sufficient. Mr Neuberger submitted, nevertheless, that the judge was
wrong. The cases had, he said, gone too far and this court should draw the line
so as to exclude Mr Hughes from the protection of the Rent Acts.
I listened to
this submission with some sympathy. On first reading the papers I found it
surprising that this learned judge reached the conclusion which he did reach in
this case. It is not easy to say of Mr Hughes that, by reason of an intention
to return to it, he has throughout been occupying the flat (the dwelling-house)
as his residence. Mr Hughes has in fact at no time had a present desire or
purpose to return to the flat: he has had no more than what the judge called
‘the basic intention’, that is to say, as it seems to me, the recognition and
acceptance that the time will come when he will have to return to be cared for
there by his children, and a purpose to return when that time arrives. The
distinction between Mr Hughes and the tenant in Tickner v Hearn is
obvious. The only dwelling-house of her own which that tenant had was the house
of which she was tenant, and throughout it was her immediate wish to return to
it; but Mr Hughes has throughout lived in the dwelling-house which he and his
wife have preferred to occupy as a residence, namely the cottage in Lancashire.
I see force in
this submission; and I think that a judge, in trying such cases, might on
similar facts find such a submission decisive; but in my judgment it is
impossible for this court to apply the point made by Mr Neuberger so as to rule
that the judge’s conclusion was not open to him as a matter of law. The absence
of 10 years intended by Mrs Boyd, the tenant in the Gofor Investments case,
was, so far as I can see, in no relevant sense less voluntary than the absence
of Mr Hughes. Mrs Boyd and her husband found it financially convenient, and, no
doubt, agreeable, to live in Morocco and Malta. Mr and Mrs Hughes had found it
agreeable, and it may be also cheaper, to live during their active retirement
in a cottage in Lancashire. In the light of the decision of this court in the Gofor
Investments case it was open to the learned judge to decide the case as he
did, and I therefore agree that this appeal should be dismissed.
