Rent Act–Position of wife remaining in matrimonial home after husband had left it and after subsequent divorce–Tenancy had been vested in husband only–No order for transfer of tenancy applied for under section 7 of Matrimonial Homes Act 1967–Submission that ex-wife could assert against landlords a statutory tenancy through ex-husband who had no intention of returning, rejected–Robson v Headland applied–Further submission rejected that on the facts there had been a surrender of the ex-husband’s tenancy and a grant of a new contractual tenancy to ex-wife–Order of county court judge giving possession to landlords upheld
This was an
appeal by Amelia Burchell against the order of Judge McDonnell at Lambeth County
Court in favour of the landlords, Heath Estates Ltd, in a possession action
brought by them against the appellant’s former husband, William Frederick
Burchell, and the appellant as defendants. The premises of which possession was
sought consisted of a house at 3 Green Walk, Southwark, London SE1. The former
husband, who had not appeared at the county court hearing, took no part in the
present appeal.
D W Van Hee
(instructed by Southwark Law Project) appeared on behalf of the appellant; Miss
J R Moss (instructed by Rooks, Rider & Co) represented the respondents.
Giving
judgment at the invitation of Ormrod LJ, GEOFFREY LANE LJ said: This is an
appeal from an order of His Honour Judge McDonnell in the Lambeth County Court
which he made on March 14 of this year. By virtue of that judgment he gave to
the plaintiffs, Heath Estates Ltd, possession of certain premises at 3 Green
Walk, Southwark, against the first and second defendants. The first defendant,
William Frederick Burchell, had in former times been married to the second
defendant, Amelia Burchell, but that marriage had been dissolved as will emerge
from the history. In fact he left the premises, never to return, many years
ago. He accordingly did not appear either at the original hearing or on this
appeal, and the action has to all intents and purposes been conducted between
the plaintiffs on the one hand and Amelia Burchell, the second defendant, on
the other, to whom I shall refer for convenience sake as ‘the wife.’
The facts of
the case are these: The plaintiffs have been the freeholders of the premises
since June 20 1978. On that date they bought the place knowing it to be the
subject of a tenancy to the first defendant and knowing that the first
defendant had been the tenant since about 1968. The tenancy was a weekly one at
the sum of £3.25 per week. As already indicated, the first defendant left the
matrimonial home at this address in about 1970 and has not resided there since.
He has no intention of returning. So much is conceded. Consequently, he is no
longer a protected tenant except possibly through the wife. It is only through
her that he can be protected. After the husband had left, the wife stayed on in
possession and she has continued to pay the rent ever since. The rent book has
at all times been in the husband’s name. No one ever accepted the wife as
tenant. Mr Van Hee, on behalf of the defendant, concedes that.
In 1976 the
first defendant petitioned for divorce on the basis of five years’ separation.
The decree nisi was pronounced on March 5 1976 and the wife obtained a
maintenance order of £20 per month against her erstwhile husband. That sum has
been regularly paid by him to her. Unfortunately she did not apply, for reasons
which have not been explored before us, for the tenancy to be transferred to
her under section 7 of the Matrimonial Homes Act 1967 and, equally
unfortunately, she is now out of time for any such application to be made. It
seems to me that therein lies the real trouble which faces this unfortunate
lady.
The wife takes
two points on this appeal through her counsel. The first point is this: He
submits that in certain circumstances a divorced wife living in the former
matrimonial home can assert against the landlord a statutory tenancy through
her ex-husband and so remain in possession even though her ex-husband no longer
resides on the premises and has no intention of coming back. That was the way
in which the proposition was stated to us by Mr Van Hee. The submission has to
contend with the provisions of section 2(1)(a) of the Rent Act 1977. It runs as
follows:
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; . . .
Subsection (3)
of that section, cited as was subsection (2), by the learned judge, runs as
follows:
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 . . .
There are, and
no one seeks to argue to the contrary, certain exceptions to that statutory
provision; certain cases, in other words, where a person who is no longer
occupying the dwelling-house as its resident may nevertheless be the subject of
protection. There is, for example, the case of temporary absence–the sea
captain who is away on a voyage but intends to return to the house. There is the
situation where there is a merely nominal tenant but the landlord knows the
tenant is merely nominal and that the real tenant is somebody else. In those
circumstances the real tenant may be protected. The third common feature is
where the husband is occupying through his wife whom he has a duty to house. Mr
Van Hee, however, submits that there is another class of case where the tenant
does not wish to reside or return, but he wishes someone else to remain in the
premises even though that person is not related to him and is, for example, his
divorced wife. That is the proposition which he put forward to this court, and
he submits that the learned judge was wrong in not applying this principle and
wrong accordingly in not extending protection to this divorced wife. He faces
immediately the difficulty of a decision of this court in Robson v Headland
(1948) 64 TLR 596. It is only necessary for me to read the headnote of that
case to make it apparent how difficult Mr Van Hee’s task is. It runs as
follows:
The plaintiff
in 1941 granted to the defendant a quarterly tenancy of a flat which was
subject to the Rent Restriction Acts. In 1947 the defendant was divorced by his
wife. He left the flat and had no intention of residing in it again; but his
former wife, and a child of the marriage the custody of whom had been awarded
to the wife, continued in occupation. The plaintiff gave the defendant notice
to quit terminating the tenancy on March 1 1948, but the defendant refused to
give up possession and claimed the protection of the Rent Restriction Acts. He
contended that although he had ceased to reside in the flat himself and had no
intention of returning to it, the continued occupation of the flat by the woman
who until the divorce had been his wife was sufficient to keep his tenancy
alive. The plaintiff now appealed against the decision given in the county
court dismissing his action to recover possession.
Held, that
after the date of the divorce the former wife of the defendant was a stranger
to him and was not in occupation of the flat as his representative; and that as
he had abandoned possession himself the Rent Restriction Acts did not apply.
It seems to me
that that is a decision which is precisely on all fours with the present case
and a decision by which we are bound. It is fatal to this contention of the
appellant.
Undeterred, Mr
Van Hee draws to our attention another case which he says is inconsistent with
that decision in Robson v Headland. The name of the second case
is Wiles
this report exceedingly difficult to understand. It seems to me first of all
that it is not an accurate report of what took place in the Court of Appeal. It
was a case which bears a superficial resemblance to the present case and Robson
v Headland. However, the distinguishing feature of Wiles v Morse
is that the tenancy there had been granted to both husband and wife. The
husband had left the wife who had continued to reside in the premises. In due
course she had taken into those premises Mr Farnham, the man whom she
eventually married. So Mrs Morse became Mrs Farnham and she was there in the
premises living with Mr Farnham. The question of whether her tenancy had come
to an end in those circumstances is entirely different from the question of the
present case where the wife was never a tenant and had only occupied the
premises by virtue of her husband’s tenancy. Consequently it seems to me that
this case in no way impairs the validity of the decision in Robson v Headland.
The result is that, so far as this first point is concerned, the wife’s case
must fail.
We had our
attention drawn to a passage in Megarry on the Rent Acts, vol 1, p 189,
10th ed, where the learned editor does draw attention to the case of Wiles
v Morse and this is the passage as it appears on that page:
The making of
a decree absolute of divorce will not necessarily determine the statutory
tenancy in such cases . . .
under that is
cited Wiles v Morse:
. . .
although it usually will.
Then he cites Robson
v Headland. Those observations are no doubt correct but they do not
assist the wife’s case. In the upshot, so far as this first point is concerned,
the learned judge was correct to have rejected it as he did. I agree with his
reasons.
The second point
is this. It is said that there has been a surrender of the ex-husband’s tenancy
by operation of the law and the grant of a new tenancy to the wife. The facts
on which the matter is based are these. The wife, when the plaintiffs became
the landlords, asked for her name to be put on the rent book in place of her
husband’s name. That the landlords refused to do. She paid the contractual rent
on two occasions in July 1978, but on July 31 that year the rent officer
registered a rent of £6.75 per week in respect of these premises. On August 4
the plaintiff landlords served notice of increase and addressed that notice to
the husband at the address of the house. The notice was to increase the rent to
£4.42 with effect from July 31. The reason for the difference between the £6.75
and the £4.42 was that the landlords assumed the husband was entitled to
certain phasing benefits. On about August 14 the wife went to the landlords and
she paid the rent to them at the higher rate. By this time they knew she had
been divorced. It was on this occasion that she was told that she could not
have her name put on the rent book in place of her husband’s name. She was
indeed told that she would have to leave the premises and that a notice to quit
would be served on her husband in due course. This conversation took place
between the wife and a Mr Rose, who was apparently the director in charge of
these affairs at the landlords’ premises. Mr Rose marked all the amounts
received in the rent book over the material period as mesne profits.
On August 21 a
notice to quit was addressed to the husband, expiring on September 25 1978. In
those circumstances, against that factual background, Mr Van Hee makes his
second submission. What he says is this: the rent could only lawfully be
increased by the grant of a new tenancy or by service of a notice of increase
operating as a notice to quit. That certainly did not take place. Therefore, he
says there must have been a new contractual tenancy created in the wife. He
concedes that the surrender, if there was one, must have been a surrender by
the old tenant (that is the husband). He, the husband, must either have
acquiesced in the surrender or stood by and done nothing while this matter was
going on, knowing that it was going on. In point of fact, it is plain that he
did neither. He did not know what was going on at all and therefore did not
acquiesce nor did he stand by. That difficulty Mr Van Hee seeks to meet by
saying the wife was the agent of the husband to the surrender. There is no
evidence that she was anything of the sort, and indeed a communication which
was sent by the husband to the landlords trying to urge them not to take steps
against the wife makes it perfectly plain that there can be no question of any
such agency. Secondly, and this was the basis on which the learned judge dealt
with this submission, the real question is in circumstances such as these, when
it is alleged that certain acts amounted to a surrender of a tenancy, what was
the intention of the parties? That is
made perfectly plain by the well-known judgment of Lord Goddard CJ in Clark
v Grant [1950] 1 KB 104. The learned judge sets out the well-known words
of Lord Goddard in his judgment and there is no need for me to repeat them. The
question is simply quo animo did these things take place? The answer to that question is that the
landlords made it perfectly plain by reason of all the things I have set out
that the last thing they intended to do was to create any new tenancy in the wife.
What the judge said in the last four or five lines of his judgment was this:
. . . it is
entirely wrong to draw the inference that Mr Rose in talking to the second
defendant evinced any intention on the plaintiffs’ behalf to grant a new
tenancy to the second defendant. This is the last thing the plaintiffs intended
to do.
I agree with
that as I agree with the rest of the contents of this very lucid judgment of
His Honour Judge McDonnell. For those reasons I would dismiss this appeal.
EVELEIGH and
ORMROD LJJ agreed.
The appeal was dismissed with costs.
