General Management Ltd v Locke and another

Rent Act 1977–Statutory succession–Facts somewhat obscure, but on the assumption that there had been a joint tenancy and that the wife was the survivor, a question arose as to the position on her death as a statutory tenant–Paragraph 3 of Schedule 1 to 1977 Act–Tenant’s daughter and daughter’s husband residing with tenant at date of her death and for the previous six months–Husband assumed for purpose of appeal to be a member of deceased tenant’s ‘family’–No agreement between daughter and her husband notified to landlords as to who should be the statutory tenant–Landlords’ submission that in the absence of such agreement the statutory tenancy had ceased to exist–Submission rejected–No need for landlords to be party to, or be notified of, agreement–No rule that right to agree, or to apply to court, is lost after lapse of a reasonable time–Unfortunate conflict as to what was said by county court judge–Appeal, however, dismissed This was an appeal by the landlords, General Management Ltd, from a decision of Judge Bernard Lewis at Brentford County Court, refusing them an order for possession of a dwelling-house at 13 Baronsfield Road, Twickenham, Middle-sex. The defendants in the action, and respondents to this appeal, were Mr and Mrs A Locke, the son-in-law and daughter of a Mrs Marshall, whose death, and the events which followed upon it, gave rise to the questions at issue in the action and the present appeal. R H T Smith (instructed by Hunt & Hunt, of Romford, Essex) appeared on behalf of the appellants: N B Primost (instructed by Graham, Harvey & Co) represented the respondents. Giving judgment MEGAW LJ said: This is an appeal from a judgment of Judge Bernard Lewis given in the Brentford County Court on October 24 1979. The action was one between General Management Ltd, to whom I shall refer as the landlords, and Mr and Mrs Locke. The claim by the landlords was for possession of a freehold dwelling-house, 13 Baronsfield Road, Twickenham, Middlesex, and there was a claim also for mesne profits. The learned judge refused to make an order for possession. He directed that the claim for possession should be dismissed and he also, by his order, directed that there should be liberty to apply in respect of the money claimed, that is the amount that had been claimed as mesne profits. We are not concerned with the money claim in this appeal. The landlords ask that the order for possession should be granted to them. The facts are, perhaps, somewhat obscure, but there seems to be no dispute, as I understand it, in relation to a number of matters. A Mr and Mrs Marshall, who were the father and mother respectively of Mrs Locke, the second defendant, took up occupation of and residence in the house, 13 Baronsfield Road, Twickenham, in the year 1940. A rent book was provided by the then freehold owner, the landlord, the ultimate predecessor in title of the present plaintiffs. That first rent book showed on it, no doubt written in by the then landlord or his agent, under the head ‘Name of tenant,’ the names ‘Mr and Mrs Marshall.’  The first recorded payment of rent in the sum of £1 8s 6d was on September 16 1940. That rent book continued through week by week up to January 17 1942. Then a fresh rent book was issued and this time the name of the tenant was entered as being ‘Mr Marshall.’  The first rent paid recorded in that book as having been paid was dated April 13 1942. That rent book carried through to December 1946 and then yet a further rent book was issued with the printed date on it 1947. The tenant’s name was recorded as ‘Mr Marshall’ and the first entry is January 6 1947. Then in 1948 there is another rent book with the name of ‘Mr Marshall.’  In 1949 in the rent book–the landlord or the landlord’s agent having apparently changed some time in the course of the last few years–the tenant’s name is recorded as ‘Mr and Mrs Marshall.’  Thereafter, the name of the tenant was recorded in the various rent books over the years as either simply ‘Marshall,’ or ‘Mr Marshall,’ or ‘Mr E Marshall.’  So much for the rent books. Mr Marshall walked out of the house some time in 1944 and, as I understand it from the evidence, has never been heard from since. One cannot usefully speculate what may have happened to him. It was war-time. But his failure to return home or communicate may have been unconnected with the war. Mrs Marshall, his wife, continued to live in the house until she died in the year 1969. When Mr and Mrs Marshall had first moved into the house they had moved in with three children, including the little girl who is now Mrs Locke, the second defendant. The other two children moved away in the course of the years. Mrs Locke, as she now is, married Mr Locke and Mr and Mrs Locke continued to live in the house from that day to this. Various unfortunate things were done by them. They were concerned, not knowing what their legal rights might be, as to what would happen if they disclosed that Mr Marshall was not living there (in case the landlord did not know that fact) and thereafter that Mrs Marshall had died and that it was Mr and Mrs Locke who were living in the house. As a result of that, on a number of occasions when they had communications from the then landlord or the landlord’s agent, those communications were answered in such a way as to suggest that either Mr or Mrs Marshall was still alive and still in residence in the house: and on various occasions Mrs Locke signed documents, going to the landlord or the landlord’s agent, in the name ‘E Marshall.’ There was evidence in relation to an agent of the landlord having called at the house in the year 1971. The learned judge, it would seem, took the view on the evidence–according to a note that he has made available to this court, to which I shall return hereafter–that the agent of the landlord was then told, and from that time on it was known to the landlord, that Mrs Marshall had died before 1971; and that, therefore, the people who were continuing to live in the house were not Mrs Marshall, nor presumably her husband, who had disappeared from there so many years before. Ultimately, the truth as to what had happened to Mr and Mrs Marshall having more or less come to light, the landlords brought proceedings in the county court claiming possession. The issue which the learned judge had to decide was whether Mr and Mrs Locke were, or one or other of them was, entitled to maintain possession as being a protected tenant by succession. Now, I have said that I would have to return later to the question of the note which the learned judge has made available to this court. In the circumstances I propose to say as little about that matter as possible, as I think no useful purpose would be served in trying to go into it in further degree. Most unfortunately, there is an awkward conflict between the version which the learned judge has given of the arguments which were put to him by counsel who appeared on behalf of the plaintiffs and of the judge’s findings, on the one hand, and, on the other hand, the version of those arguments and those findings as given to us by counsel. Counsel for the plaintiffs had taken a note of the reasons given by the learned judge for judgment. By a series of misadventures, and I do not wish to be critical about it, that note was not shown to the other side in order that there might be agreement between the parties of the note of judgment to be supplied by the judge. When it was sent to the learned judge by solicitors acting for the plaintiffs, the appellants in this court, apparently the learned judge, instead of approving or disapproving of that note, took the course of sending this court, his own version of the arguments of counsel and of his findings. He said that various of the submissions on behalf of the plaintiffs, which are included in the notice of appeal to this court, had not been put before him in argument. Counsel for the plaintiffs says that his contemporary note of the reasons for judgment is accurate, that he had indeed put all those arguments before the learned judge and that there are discrepancies between his note of what the learned judge said in judgment and what the learned judge has said in his note to this court that he recollects as having said. For the purpose of this appeal I am prepared to assume that all that we have been told by counsel for the plaintiffs as to those matters is correct. It will be understood from that that I am not suggesting criticism either of counsel for the plaintiffs or of the learned judge. If it had been necessary to go further into that matter it might have been very difficult to arrive at any conclusion and, if the decision on this appeal had depended upon any question of the differences, it may well have been that the only course that this court could property have taken, with very great reluctance, would have been to order a fresh trial. But, as things have turned out, I am satisfied that, on the material which was before the learned judge, and making all the assumptions as to what happened in the county court which counsel for the appellants would wish us to make, the answer must be that this appeal fails. Accordingly, it is not necessary to remit it for a new trial in order to go further into the question of those discrepancies. Counsel for the appellants submits that there could not here be a proper finding (something which the learned judge according to his note thought had been conceded) that there was originally a joint tenancy of Mr and Mrs Marshall when they first entered into this house in the year 1940. It is said that the onus is on the defendants to show that there was then a joint tenancy of Mr and Mrs Marshall, that the mere fact that the original rent book gave the names of both of them is certainly not conclusive. When one sees that in so many of the subsequent rent books the name ‘Mr Marshall’ is entered, the correct answer, it is said, on balance of probability, is that either the original tenant was Mr Marshall alone or, if it was originally a joint tenancy of Mr and Mrs Marshall, thereafter, by some form of novation, Mr and Mrs Marshall had ceased to be joint tenants and the tenancy had become a tenancy of Mr Marshall alone–this gentleman who walked out of the house in 1944 and who never returned. In my judgment, the only conclusion that could be arrived at on the material which was before the learned judge, on balance of probability, is that originally Mr and Mrs Marshall were joint tenants and joint protected tenants. I see no reason on the material before us to come to the conclusion that that joint tenancy had altered in such a way as to make Mrs Marshall cease from being either a joint tenant or a sole tenant. I do not think we have to consider or arrive at a conclusion whether Mr Marshall in all the circumstances may have ceased to be a joint tenant; but I am satisfied that, on the material before us, the right conclusion is that Mrs Marshall continued to be a tenant and a statutory tenant up to the date of her death in 1969. That being so, one comes to the question whether her then statutory tenancy passed by succession. The relevant statutory provisions are to be found in the Rent Act 1977, Schedule 1, paragraphs 2 and 3 of Part I. I say the Rent Act 1977–in fact, the statutory enactment which was in force at the relevant time was the Rent Act 1968 but, for present purposes, the corresponding provisions in the two Acts are the same. Therefore, one can take it from the 1977 Rent Act. Paragraph 2 of Schedule 1, Part I, to the 1977 Act provides: If the original tenant was a man who died leaving a widow84 who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence. Let it be supposed here in favour of the plaintiffs that that paragraph does not apply. Paragraph 3 goes on: Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence. It is said here on behalf of the plaintiffs that, assuming that Mrs Marshall was a statutory tenant at the date of her death, then the members of her family residing with her at the time of her death and for a period of six months immediately before would have been, not merely Mrs Locke, her daughter, but Mr Locke, her son-in-law and Mrs Locke, her daughter. I am prepared to assume for the purposes of this appeal that counsel for the appellants is right in his submission that Mr Locke would be a member of Mrs Marshall’s family for this purpose. It is then said that no agreement between Mr and Mrs Locke was notified to the landlord either immediately after Mrs Marshall’s death or at any time up to the date of the hearing that they or one of them had elected to continue as a statutory tenant. Therefore, it was contended, the statutory tenancy did not exist. I can find nothing in the provisions of that paragraph of the schedule or anywhere else in the provisions of the Act to which we have been referred which warrants the submissions that were made to us by counsel for the plaintiffs. He submitted that the agreement which is referred to in paragraph 3 should be regarded as being an agreement to which the landlord for the time being is a party. To my mind that is not a correct construction of the statutory provision. The agreement is an agreement between the tenants. I can see nothing to suggest that, if such an agreement is not made within a reasonable time (however ‘reasonable time’ is to be construed), the right of the members of the family to agree between themselves, or to have a decision of the court in the absence of such agreement, has been irretrievably lost and, as a consequence, there is no longer a statutory tenancy. If there were any difficulty in the matter it was one which could have been resolved by agreement between Mr and Mrs Locke, assuming that Mr Locke was properly to be treated as a member of the family, and that agreement could have been made at the time of the hearing in the county court. I see no reason why it should not be made thereafter, if not then. Nor do I see that there is any justification for saying that a lack of communication to the landlord destroys the statutory tenancy which otherwise would exist. It is said that, in this case, the possibly misleading communications to which I referred earlier in this judgment ought to be taken as, in effect, putting an end to the right of Mr and Mrs Locke to decide between themselves who shall be the statutory tenant or, in the absence of agreement between them, putting an end to the right of the court so to decide in default of agreement. I do not think that that submission is justified. It seems to me that, on the material before the learned judge, and, as I say, making all the assumptions that can be made as to the matters of disagreement in favour of what is put forward by counsel for the plaintiffs as being what happened in the court below, this appeal cannot succeed. I would, accordingly, dismiss it. Agreeing, TEMPLEMAN LJ said: Mother and father and daughter went to live in a dwelling-house. Mother and father were the first tenants. Father died or disappeared. Mother died and the daughter has lived there for 39 years. Counsel for the landlord has juggled with possible combinations of circumstances and events and implications of law but, juggle as he may, it seems to me that the statutory tenancy must have descended to the daughter. I agree with my Lord’s conclusions and reasoning and that the appeal must be dismissed. SIR PATRICK BROWNE also agreed. The appeal was dismissed with costs.