D J Crocker Securities (Portsmouth) Ltd v Johal

Rent Act 1977, section 2(1) — Statutory tenancy — Condition requiring occupation of dwelling-house as tenant’s residence — Whether sufficient residence — Two-home question — Appeal by tenant of flat from decision of county court judge holding that appellant had not satisfied residence condition103 and that his statutory tenancy had determined The facts were briefly as follows — Appellant, born in the Punjab, came to the United Kingdom via Malaysia in 1971 to study for the Bar and moved into the flat in question — He occupied the flat until 1977, during which period he was called to the Bar — He married in 1977 and had three children, the eldest born in this country, the other two in Malaysia — In 1977 when his father became ill the appellant returned to Malaysia and was shortly afterwards joined by his wife — In substance they had lived in Malaysia ever since, the appellant building up there a successful law practice — From 1980 the appellant and his wife made short visits, of between 9 and 26 days, to this country and occupied the flat (no visits in 1983 or 1986) — From 1977 to 1985 a brother-in-law of the appellant visited the flat from time to time to see that all was well — In 1985 a niece of the appellant came from Malaysia and went into occupation and over the next two or three years a number of different people stayed at the flat as lodgers or subtenants of the niece In the Court of Appeal the appellant complained that the judge below had directed his attention mainly to the insufficiency of the appellant’s evidence that he intended to return and make the flat his permanent home — It was suggested that the judge had overlooked the alternative argument that, notwithstanding the shortness of the appellant’s stays in the flat, he was occupying it as one of his homes, by reason of the intermittent visits of his brother-in-law, the leaving of the furniture there and the occupation by his niece — The appellant placed reliance on a passage in the judgment of Buckley LJ in Bevington v Crawford — The Court of Appeal did not agree that the judge had overlooked any of these matters and he had expressly referred to the situation where a tenant had more than one home — The judge’s reasons could not be challenged — Stuart-Smith LJ said that, having regard to the very limited extent to which the appellant was in this country and used the flat, and the fact that his home and place of work were plainly in Malaysia, it was really an abuse of language to describe him as occupying the flat as his residence or home — Mann LJ agreed and added that he regarded Bevington v Crawford ‘as being a case which is very much at the limit’ — Appeal dismissed The following case is referred to in this report. Bevington v Crawford [1974] EGD 300; (1974) 232 EG 191, CA This was an appeal by Gurubachan Singh Johal from a decision of Judge Graham, at Willesden County Court, granting possession of Flat no 3, Corringham Court, Corringham Road, London NW 11, to the plaintiffs (respondents to the appeal), D J Crocker Securities (Portsmouth) Ltd. Richard Robinson (instructed by Winston & Co) appeared on behalf of the appellant; Simon T Cheves (instructed by Higby Hargreaves) represented the respondents. Giving judgment, STUART-SMITH LJ said: This is an appeal from a judgment of His Honour Judge Graham, sitting at Willesden County Court on August 19 1988. In that judgment he ordered possession of a dwelling-house known as Flat no 3, Corringham Court, Corringham Road, London NW11, to be delivered to the plaintiff. It was common ground that at the material time the defendant’s occupation of the flat, if it was an occupation within the Rent Act, was as a statutory tenant. The material question which the judge had to determine was whether or not the defendant was residing at the premises in question as his residence or as his home. The material words of section 2(1) of the Rent Act 1977 are: 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; The learned judge came to the conclusion that the defendant had ceased to occupy the flat as his home and, therefore, the statutory tenancy had determined. The facts of the matter were these, in outline. The defendant came originally from the Punjab, where he was born. He came to this country in 1971 via Malaysia to study for the Bar. Some time in 1971 he moved into the flat in question. Thereafter he lived in this country and occupied the flat until about 1977. In that time he was called to the Bar in this country. In 1977 he married a lady who is Czech by origin, but she is the holder of an English passport. They have three children, the eldest being born in this country, the younger two being born in Malaysia. The children are all British citizens, as is the wife as I understand it. In 1977 the defendant’s father became ill and the defendant returned to Malaysia to look after him and be with him. Shortly after the defendant’s arrival in Malaysia his wife joined him, and in substance they have lived there ever since. From 1980 either the defendant or his wife or both have made trips to this country, and for periods between some nine and 26 days they have stayed at the flat in question. They did not do so in 1983 and they did not do so in 1986. The defendant having qualified at the Bar in England, when he went to Malaysia he obtained various jobs there and in due course set up in practice as a lawyer with one or two partners. He has a thriving practice in that country. So far as what happened to the flat is concerned, between 1977 and 1985 the defendant’s brother-in-law, Mr Basra, from time to time visited the flat to see that all was well. He is a businessman in the Midlands, where he is married and lives. He simply visited the flat when he came to London. In 1985 the defendant’s niece, a Miss Harbans, came to this country from Malaysia. She, too, studied for the Bar, and she went into occupation of the flat. Over the next two or three years a number of different people stayed as lodgers or subtenants of Miss Harbans at the flat, including a gentleman called Mr Mariathasan who became a subtenant of a room in the flat some time in 1986. There was a dispute in 1987 between Mr Mariathasan and the defendant, the former refusing to leave the flat when he was asked to do so by the defendant. The particulars of claim were served on August 2 1985 alleging the defendant was no longer the statutory tenant within the meaning of sections 2 and 3 of the Rent Act 1977. The defence was served on September 23 1985 in which the defendant averred that he was and remained the statutory tenant. The learned judge, having heard all the evidence, in the course of his judgment first of all referred to the section of the Act to which I have referred. He then cited a number of authorities to which his attention was drawn, and said he did not propose to set out the facts, I imagine, in those cases, and then said: The principles I draw are: (1)  To qualify for statutory protection relevant character of occupation must be occupation as a home. (2)  The fact that not physically in residence at time does not preclude occupation as a home. (3)  In case of two-home situation, nothing in Rent Act prohibits protection in more than one home. (4)  In considering the quality of occupation of premises as a home, the court should take into consideration the following factors: (i)    was there a genuine intent to return and use premises as home? (ii)   was there a realistic prospect of fulfilling intention within a reasonable time? (5)  Question of whether tenant occupies a home is a matter of fact and degree in all circumstances of case. (6)  Provided correct principles are applied, court’s decision is one of fact. Mr Robinson on behalf of the defendant does not quarrel with that statement of principle, but he submits that the learned judge, when he refers to a ‘two-home situation’, does not really go far enough. He submits that from the cases there are really to be found two strands or types of case which show that the tenant may still be occupying the premises as his residence. One type of case is where he has in fact two homes but uses the one in question intermittently, and the second one is where he is not in occupation of the flat or premises in question but has an intention to return and live there permanently in due course. Mr Robinson submitted that the learned judge really approached the case only on the basis of the latter proposition. He derives that proposition particularly from a judgment of Buckley LJ in the case of Bevington v Crawford (1974) 232 EG 191. The facts of the case are not material and it does not assist the court to be referred to facts of particular cases and invited to conclude that the same conclusion should be reached in the case in question. Buckley LJ agreed with Lord Denning MR that the county court judge’s decision in favour of the appellant should be upheld and said: 104 The difficulties of this appeal have arisen mainly from the fact that the learned judge in his judgment made no express findings as to the quality of the defendant’s possession of the flat at February 1 1971, when his contractual tenancy came to an end, or as to his intentions to revert to using the flat as a home in the future, if on the true view of the facts he was not at that time or could not at that time be said to be using it as a home. But the learned judge in the course of his judgment, which was a reserved judgment, incorporated a lengthy note on the authorities, and in the course of that note he referred to Skinner v Geary [1931] 2 KB 546; Brown v Brash & Ambrose [1948] 2 KB 247; Hallwood Estates Ltd v Flack [1950] WN 268; and Dixon v Tommis [1952] 1 All ER 725, all of which bear upon the intention of a tenant who, for one reason or another has ceased to occupy the premises in respect of which protection under the Rent Act is claimed with the degree of regularity and continuity which would prima facie suggest that he was using it as a home. All those authorities indicate the importance of the court making a finding as to whether he has or has not a true intention to return and to use the premises as his home as soon as his circumstances permit, and I cannot believe that in the present case the learned judge did not apply his mind to that aspect of the matter. Unfortunately, as I say, he made no express finding about it. But I agree with [Lord Denning MR] in thinking that we can only infer from the fact that the learned judge decided in the tenant’s favour that he took the view that the evidence here either established that the user was throughout such as would justify his treating it as use of the flat by the defendant as a home, albeit for only a few days each year or, alternatively, that although his use of it as a home was temporarily suspended because of his business commitments and interests in France, he had a genuine intention when practicable to revert to using it as his home. In my judgment it cannot possibly be said that such a finding was one which the learned judge should not have made on the evidence before him; and in those circumstances I agree that this is a case in which the learned judge’s decision ought not to be disturbed . . . So, says Mr Robinson, that passage to which I have referred clearly illustrates the two types of consideration which may be relevant. It is true that the learned judge devoted most of his attention and conclusions to reaching the view, which he did reach, that the defendant’s evidence that he intended to return and live permanently in the flat was not made out. He rejected the defendant’s evidence to that effect and he gave cogent reasons why he rejected that evidence. Mr Robinson does not seek to disturb that finding, and indeed he could not do so. But, he says, since the judge directed his attention only to the question of the intention to return, he has overlooked the alternative argument that, notwithstanding the fact that the defendant was only here for a few days each year, nevertheless he was occupying it as his home through the presence first of all intermittently of his brother-in-law, by the leaving of his furniture there and subsequently by the occupation of his niece. For my part I think it is perfectly clear that the learned judge did have that matter in mind. First of all, as Mr Robinson frankly accepts and as one would expect, that was part of the argument which was addressed to the learned judge. Second, the judge refers in terms to the decision in Bevington v Crawford, which is the case upon which Mr Robinson primarily depends for the proposition which he submits. Third, the judge, as I have already indicated, expressly refers to the situation which may exist of a tenant having more than one home. Finally, as it seems to me, the learned judge in terms says that he does not accept that the defendant was occupying the flat as his home. He says: I have come to the conclusion that the defendant, at all material times, ceased to occupy the flat as his home and that therefore his statutory tenancy determined. He then gives his reasons for doing so. It is not necessary to go through all those reasons. They are not and cannot be challenged. But among them he says, as reason no 5: If genuine intent to return he would have done so earlier, no reasonable explanation why remained in Malaysia in 1981 after father died and set up practice rather than come here if wish to settle permanently. I am bound to say that it seems to me it is really a travesty of the notion that the defendant used this flat as his home. Having regard to the very limited extent to which he was here, the fact that his home and his place of work were plainly in Malaysia and the very limited extent to which he uses the flat in this country, it really is an abuse of language to describe him as residing and occupying it as his residence or his home. For my part I am by no means satisfied that the learned judge did not approach this matter in entirely the correct way. He stated the principles correctly and he made findings of fact which, in my judgment, are insuperable, so far as the defendant is concerned. I would dismiss this appeal. Agreeing, MANN LJ said: I also would dismiss this appeal. It does not raise any question of principle or of law. It seems to me to be wholly a question of fact. The learned judge below came to a conclusion on the facts which in this court is not assailable. I add only this. Like Stuart-Smith LJ, I would regard it as absurd to describe this flat as being the ‘home’ of the appellant. I would also say that I regard Bevington v Crawford (1974) 232 EG 191 as being a case which is very much at the limit. The appeal was dismissed with costs.