Hall v King and another

Rent Act 1977 — Whether wife qualified for security of tenure — A husband, whose marriage had broken down and who was living with another woman, took a tenancy of a cottage within the Rent Act limits in order to provide accommodation for his wife, who had suffered from serious ill health, and in the hope that the young son of the marriage might get used to living with his mother — For the first six or seven weeks the husband slept at the cottage four or five nights each week, arriving late at night and leaving early in the morning — Apart from this he continued to live with the other woman and there was no question of any reconciliation or resumption of married life with the wife — The arrangement for the son to live with his mother came to an end after seven weeks and thereafter the husband’s visits ceased and the wife lived alone at the cottage — Later the landlord terminated the husband’s protected tenancy of the cottage and claimed possession against both the husband and wife — The county court judge made possession orders against both; the husband accepted the decision, but the wife appealed, claiming security of tenure — As the husband had not been occupying the cottage as his residence, he had never had a claim to security of tenure, but it was submitted that the wife had an entitlement either under the Matrimonial Homes Act 1983 or under case law — The Court of Appeal pointed out that the claim under the Act was clearly ruled out by section 1(10) as the cottage had at no time been the matrimonial house of the spouses — Analysis of the relevant case law was also fatal to the wife’s claim — A wife’s right to occupy the matrimonial home depended on her status as a wife and not on any leave or licence of her husband — Attempts to elevate this status-based right into an overriding interest in property failed — But the one factor common to all the cases was that the wife was in occupation of what was or, before the husband moved out, had been the matrimonial home — That was not the position here — The wife in the present case was simply the licensee of an absentee tenant — Her occupation was thus unprotected and the landlord was entitled to possession — Appeal dismissed The following cases are referred to in this report. Brown v Draper [1944] KB 309 National Provincial Bank Ltd v Ainsworth [1965] AC 1175; [1965] 3 WLR 1; [1965] 2 All ER 472, HL Old Gate Estates v Alexander [1950] 1 KB 311; (1949) 65 TLR 719; [1949] 2 All ER 822, CA Penn v Dunn [1970] 2 QB 686; [1970] 3 WLR 321; [1970] 2 All ER 858, CA Robson v Headland [1948] WN 438; (1948) 64 TLR 596, CA This was an appeal by Mrs Emma King, one of the defendants below, against the decision of Mr Assistant Recorder Schaffer, at Uxbridge County Court, granting orders for possession of 6 Grays Cottages, Breakspear Road, Harefield, Middlesex, against both James Cyril King and Mrs Emma King, his wife. The plaintiff below, the present respondent, was Benjamin Sidney Hall. Philip Walter (instructed by Booth Bennett & Co, of Uxbridge) appeared on behalf of the appellant; G L Aldous (instructed by Turberville & Woodbridge, of Uxbridge) represented the respondent. Giving judgment, SIR JOHN DONALDSON MR said: In August 1984 Mr Hall let his cottage at Harefield, Middlesex, to Mr King for a period of 364 days. One year later he began proceedings to resume possession, only to find that he was destined to join the long line of landlords who, however unwillingly, have contributed to the legal learning concerning the Rent Acts. The facts Mr and Mrs King had married in 1971 and had a son who, in August 1984, was aged 11. Some six years before, Mrs King had developed schizophrenia, which had adversely affected her behaviour and had led to the breakdown of the marriage. The son had been made a ward of court in 1982 and care and control given to Mr King. At about the same time Mr King started living with a Miss Driver in Clapham. Mrs King was living in Wales. At some stage between 1982 and 1984, Mrs King’s health appeared to improve and Mr King found accommodation for her in Battersea, allowing their son to live with her, but there was no question of the Kings resuming married life. This arrangement did not work out, because Mrs King preferred more rural surroundings, and it was with a view to meeting this wish that Mr King sought other accommodation for her and found it at Harefield. 122 When Mrs King moved to Harefield, she took their son with her. For the first six or seven weeks Mr King slept at the Harefield cottage for four or five nights each week, arriving late at night and leaving early in the morning. However, his home continued to be Miss Driver’s house in Clapham. The purpose of the overnight visits to Harefield, as found by the learned judge, was not to attempt to effect a reconciliation and still less to resume married life with Mrs King. It was to assist in getting their son used to living with his mother. This process came to an abrupt end after seven weeks when Powys County Council, who had a supervisory role under the wardship order, objected to Mr King having allowed the son to live with his mother. Thereafter Mrs King lived alone at the Harefield cottage. The proceedings Mr Hall’s claim for possession was made against both Mr and Mrs King and was heard by Mr Assistant Recorder Schaffer in the Uxbridge County Court on December 8 1986. The learned judge made orders for possession against both defendants and Mr King has accepted that decision. Mrs King has, however, appealed, claiming that she is entitled to security of tenure under the Rent Act 1977. The issues Mr King’s tenancy of the Harefield cottage was a protected tenancy under the Rent Act 1977 and, accordingly, upon its termination he would become and remain a statutory tenant ‘if and so long as he occupies the dwelling-house as his residence’ (section 2(1)(a)). Quite plainly, upon the termination of the tenancy in July 1985 the Harefield cottage was not in fact occupied by Mr King as his residence or at all. Mr Walter, for Mrs King, has therefore sought to make good a claim for what might be described as ‘a deemed residential occupancy’. He does so in reliance alternatively upon the Matrimonial Homes Act 1983 and upon case law. The Matrimonial Homes Act 1983 Section 1(6) of the Act provides that a spouse’s occupation of a dwelling-house by virtue of the section shall, for the purposes of the Rent Act 1977, be treated as possession by the other spouse. I need not explore this subsection further, because its effect is dependent upon section 1(10), which provides: This Act shall not apply to a dwelling-house which has at no time been a matrimonial home of the spouses in question and it is clear beyond argument that the Harefield cottage was never the matrimonial home of Mr and Mrs King. It was the home of Mrs King, which had been provided for her by Mr King. Case law One might have thought that the phrase ‘if and so long as he occupies the dwelling-house as his residence’ bore a quite intelligible meaning and that, in any event, it would fall to be construed in the light of any judicial decision on its meaning in the context of previous Rent Acts. However, section 2(3) has been included to inform us that the phrase is to 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)’. All agog for enlightenment, we turned to that subsection only to learn that the phrase was to 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. Bearing in mind the well-known complexity of the five statutes constituting the Rent and Mortgage Interest (Restrictions) Acts 1920 to 1939 in force at the time of the passing of the 1968 Act, not to mention the mass of case law, I do not find this helpful and, in terms of informing ordinary citizens of their rights and obligations, which must be one of the principal purposes of any statute of this nature, quite useless. Fortunately, unlike ordinary citizens, we have had the assistance both of Mr Walter and of Mr Aldous (appearing for Mr Hall), who have taken us through the authorities on the rights of deserted wives. From these it is clear that a wife’s right to occupy the matrimonial home is of a very special nature, depending upon her status as a wife and not upon any leave or licence of her husband (National Provincial Bank Ltd v Ainsworth [1965] AC 1175). This accords with common sense and experience. Whoever heard of a husband expressly or impliedly saying to his wife: ‘Do come and stay with me in the matrimonial home, dear.’  By contrast, the right of a parent, parent in law or other dependent relative to occupy a matrimonial home can only rest upon leave or licence, in the absence of having a legal or equitable interest in the land. Attempts were made to elevate this status-based right into an overriding interest in property, but failed. The adverse social consequences of that failure, when the wife was living in a house which was or had been the matrimonial home, were remedied by the Matrimonial Homes Acts 1967 and 1983. Similar attempts in relation to the position of a wife where the husband was the statutory tenant of the matrimonial home were more successful and it is to that line of authority that I therefore turn. It stretches from Brown v Draper [1944] KB 309, Robson v Headland (1948) 64 TLR 596 and Old Gate Estates v Alexander [1950] 1 KB 311 to Penn v Dunn [1970] 2 QB 686. In the latter case it was explained by Salmon LJ in the following terms at p 691: Clearly, the Rent Act, 1968, and the statutes it replaced did not by themselves directly confer any protection upon anyone other than the tenant. The common law, however, applied the Rent Acts so that they indirectly afforded considerable protection to a tenant’s wife if she was in occupation of the matrimonial home. Her ‘occupation’ has been treated as the husband’s so as to give her the benefit against the landlord of the tenant’s statutory protection: see National Provincial Bank Ltd v Hastings Car Mart Ltd [1965] AC 1175, 1252. This was achieved on the following basis: a husband owes his wife a duty to provide her with a home; therefore he cannot turn her out of the house she occupies unless he provides her with another; accordingly, a wife occupies the house on behalf of her husband and her occupation is deemed to be his occupation. The husband is still notionally in occupation of the house, even though he had left his wife and had no intention of returning to it and, indeed, was anxious for the landlord to resume possession. The husband as the statutory tenant cannot contract out of his rights under the Rent Acts. It follows that no order for possession could be made against him or his wife save on the grounds specified in the Rent Acts: see, for example, Old Gate Estates Ltd v Alexander [1950] 1 KB 311. However, the one factor which is common to all these cases is that the wife was in occupation of what was or, before the husband moved out, had been the matrimonial home. Her occupation was deemed to be that of the husband, because of her status as a wife and the fact that it was the matrimonial home. She no doubt had a right to be maintained by the husband, but no case suggests that she had a right to occupy premises which he was occupying, unless it was the matrimonial home. This again makes sense. Take this case. Throughout the currency of the contractual tenancy Mr King was occupying the house of Miss Draper and it would have been astonishing if that had given Mrs King a right to move in. Take another scenario. Mr King might well have taken a lease of the cottage at Harefield to accommodate himself and Miss Draper. Again it would have been astonishing, and is not the law, that Mrs King should have had a right to move in too. So what is Mr King’s position in relation to that cottage?  Mr King took the tenancy not in order to provide a matrimonial home for his wife and himself. He took it to provide a home for her and invited her to live in it without him. This is very different from a wife exercising a status-based right to live with her husband. It involves either expressly or impliedly the granting of a licence by the husband. It is in fact indistinguishable from the situation which exists where a son provides a separate home for his widowed mother. That being so, it is impossible to hold that when the contractual tenancy terminated, Mrs King was occupying the cottage ‘on behalf of her husband’, to use the words of Salmon LJ, so as to enable him to claim the protection of the Rent Acts and thus legitimise her occupation. She was simply the licensee of an absentee tenant. It follows that her occupation was unprotected and Mr Hall was entitled to an order against her for possession. I would dismiss the appeal. LLOYD and BALCOMBE LJJ agreed and did not add anything. Appeal was dismissed; respondent to recover his costs from the Legal Aid Fund, such order not to be drawn up for 10 weeks; legal aid taxation of the appellant’s costs.