Chios Property Investment Co Ltd v Lopez

Rent Act 1977, Schedule 1 — Statutory tenant by succession — Whether a person cohabiting with deceased tenant was a member of the deceased tenant’s family — Whether test of permanence and stability of relationship was satisfied — The respondent, defendant in a possession action in the court below, had lived with the deceased tenant for some two years, initially with the intention of cohabiting but subsequently with the intention of marrying him when financial circumstances permitted — The judge found that both regarded their relationship as permanent and he held that the respondent was a member of the deceased’s ‘family’, residing with him at the time of, and for the period of six months immediately before, his death — The judge referred to Dyson Holdings Ltd v Fox, Helby v Rafferty and Watson v Lucas and formulated the test as being that the claimant has to show ‘that a sufficient state of permanence and stability has been reached in the relationship with the deceased protected or statutory tenant for it to be said that in all the circumstances the occupant was a member of the original tenant’s family’ — The judge held that this test had been satisfied and that the respondent was entitled to possession as a statutory tenant by succession — Held on appeal that there were no grounds for interfering with the judge’s conclusion — He had heard the evidence and had applied the correct test — Criticisms by the landlords founded on the absence of children, the comparative shortness of the relationship and the fact that the appellant kept her maiden name could not invalidate the judge’s finding based on the evidence and the authorities — The court, however, gave a warning — This was an exceptional case and should not be regarded as a precedent for drawing a similar inference from a short period of cohabitation — Landlords’ appeal dismissed The following cases are referred to in this report. Dyson Holdings Ltd v Fox [1976] QB 503; [1975] 3 WLR 744; [1975] 3 All ER 1030; (1975) 31 P&CR 229; [1976] EGD 309; 239 EG 39, CA Helby v Rafferty [1979] 1 WLR 13; [1978] 3 All ER 1016; (1978) 37 P&CR 376; [1978] EGD 365; 247 EG 729, CA Watson v Lucas [1980] 1 WLR 1493; [1980] 3 All ER 647; (1980) 40 P&CR 531; [1980] EGD 443; (1980) 256 EG 1171, CA This was an appeal by the landlord company, Chios Property Investment Co Ltd, from a decision by Mr Assistant Recorder Mann QC, at Bloomsbury County Court, in favour of the defendant, the present respondent, Miss A Arranz Lopez, in an action concerning the possession of Flat 5, 24 Pembridge Square, London W2. Mark Piercy (instructed by Wegg-Prosser & Farmer) appeared on behalf of the appellants; S Dougall (instructed by Nathoo & Co) represented the respondent. Giving the first judgment at the invitation of Parker LJ, SIR GEORGE WALLER said: This is an appeal from a decision of Mr Assistant Recorder Mann QC, sitting at Bloomsbury County Court. He held that the respondent, Arranz Lopez, is the statutory tenant of Flat 5, 24 Pembridge Square, London W2, in succession to Mr El-Din. The judge held that she was a member of Mr El-Din’s family residing with him at the time of, and for a period of six months immediately before, his death. The background facts were that Mr El-Din was an Egyptian. Miss Lopez, who is Spanish, came to England in 1980 or 1981 and met Mr El-Din in March 1981. They saw each other regularly for the next two years and on February 10 1983 she moved to Mr El-Din’s flat with the intention of marrying him as soon as financial circumstances permitted. The judge found that she moved with the intention of cohabiting with Mr El-Din initially as his fiancee and thereafter as his wife when financial circumstances should permit, that by July 1985 or thereabouts, when it became apparent to Miss Lopez and Mr El-Din that they were likely to become better off imminently, they resolved to marry and for that purpose to secure the blessing both of his family in Cairo and her family in Spain and that they both regarded their relationship at all material times as being permanent albeit that marriage was to be conditional on improved financial circumstances. The judge referred to the three recent authorities, namely Dyson Holdings Ltd v [1976] QB 503, Helby v Rafferty [1979] 1 WLR 13 and Watson v Lucas [1980] 1 WLR 1493, and then set out the test as follows: What the claimant has to show is that a sufficient state of permanence and stability has been reached in the relationship with the deceased protected or statutory tenant for it to be said that in all the circumstances the occupant was a member of the original tenant’s family. The judge went on: Hence the question is one of fact and degree, and it is for consideration now whether the facts of this case warrant the inference that Miss Lopez’s relationship with Mr El-Din was of sufficient permanence and stability and endured for the period of six months immediately before Mr El-Din’s death. The judge then summarised the evidence and said: In my judgment, although the case is not an easy one, Miss Lopez was indeed a member of Mr El-Din’s family residing with him at the time of and for the period of six months immediately before the death in the sense of para 3 of Schedule 1 to the Rent Act. In my judgment, Miss Lopez has proved that permanence and stability in the relationship which is necessary in order to satisfy the statutory provisions. I have no doubt that had either she or Mr El-Din been asked whether they regarded their relationship as permanent, albeit not yet sealed by marriage, they would have answered in the affirmative sense. Before this court it has been submitted that in applying the test which I have already quoted, the judge erred and should have asked himself whether the common man would have regarded them as a family. This was an expression used in Dyson. In my judgment, the test which the judge posed went to the heart of the relationship and the evidence of the witnesses which the judge accepted, including the evidence of Miss Lopez’s reception in Egypt by his family after his death, all supported this. It was also argued that the absence of children and the shortness of99 the relationship should have resulted in a different conclusion. Counsel cited the very much longer periods in the reported cases referred to above. In my judgment, there can be no rule about length. Of course, the longer the relationship, the easier it will be to infer permanence, but there can be no rule about length. For a relationship of only two years to be regarded as permanent must be rare, but the judge for reasons which he gave found this was permanent and I see no reason for disagreeing. The appellants also submitted that there were periods of being apart, eg when the deceased was in Egypt and at holiday time, but I do not think that these made any difference. Finally, it was submitted that the fact that she still used her maiden name indicated that they did not constitute a family. This I found the most persuasive of all the appellants’ arguments, but at the end of the day the judge had to make a finding of fact bearing in mind the authorities I have quoted. He heard the evidence, he applied the right test and he came to the conclusion that this was a permanent relationship, so recognised by others, and that Miss Lopez was ‘a member of the tenant’s family’. I can see no reason for interfering with this conclusion, and I would dismiss this appeal. I would only add that this was a most exceptional case, and it should not be regarded as a precedent entitling courts to draw a similar inference from a similar short period of time unless there are wholly exceptional surrounding circumstances. PARKER LJ agreed and did not add anything. The appeal was dismissed with costs.