Potsos and another v Theodotou

Rent Act 1977, Sched 15, Case 9, para (b) — Dwelling-house reasonably required by landlord for ‘any son or daughter of his over 18 years of age’ — Question in this appeal was whether, where a husband and wife were joint landlords and claimed possession of a dwelling-house on the ground set out in Case 9(b), the claim fell within this ground where the son was the natural (or biological) son of one only of the joint landlords and neither the natural (or biological) nor the adopted son of the other — The county court judge held that the claim was covered by Case 9(b) and granted the joint landlords a possession order — His decision was upheld on appeal The situation was that Paul Potsos, now aged 22, was the son of Mrs Potsos by a previous marriage — He was neither the natural (or biological) nor the adopted son of Mr Potsos, who was joint landlord of the subject dwelling-house with his wife — Mrs Potsos was granted legal custody of Paul with his father’s consent but the father had opposed adoption by the Potsos’, apparently for fear that Mr and Mrs Potsos might then move with Paul to Cyprus. It was clear from existing authorities that two or more persons could together constitute ‘the landlord’ for the purpose of Case 9(b) and it was also clear that an adopted child was included in ‘any son or daughter’ — The precise point raised in the present proceedings, however, had not previously been decided — On the strict interpretation favoured by Asquith LJ in Baker v Lewis and followed in McIntyre v Hardcastle it would have been necessary in the present case for Paul to have been the son of Mr and Mrs Potsos, as together constituting ‘the landlord’ and not only of one of them — In later cases, however, the very strict doctrine of joint proprietorship became modified in different contexts — In Lloyd v Sadler Megaw LJ said that: where the strict application of the doctrine of joint tenancy would lead to unreasonable results, or results which the legislature is unlikely to have intended, it is possible to conclude that the legislature did not so intend In Tilling v Whiteman the House of Lords held that one of two joint owners of a dwelling-house could satisfy the requirements of Case 11, despite the fact that his proprietorship was partial only, because he had occupied the dwelling-house, had let it and required it — In the present case the Court of Appeal showed that the strict interpretation put forward by Asquith LJ in Baker v Lewis, if applied to each of the categories in Case 9, would produce impossible results The purpose of Case 9 in broad terms was to allow landlords to recover possession for the immediate families of both the husband and wife — This object would not be achieved in the present case if Paul were to be excluded from the family contemplated by Case 9 — A purposive construction, taking into account modern conditions, should be adopted — Held accordingly, affirming the decision of the county court judge, that the landlords were entitled to possession under Case 9(b), despite the fact that Paul, for whom possession was required, was the son of one of the joint landlords only — Appeal dismissed The following cases are referred to in this report. Baker v Lewis [1947] 1 KB 186; [1946] 2 All ER 592; (1946) 62 TLR 716, CA Lloyd v Sadler [1978] QB 774; [1978] 2 WLR 721; [1978] 2 All ER 529; (1978) 35 P&CR 78; [1978] EGD 291; 246 EG 479, [1978] 1 EGLR 76, CA McIntyre v Hardcastle [1948] 2 KB 82; [1948] 1 All ER 696, CA Tilling v Whiteman [1980] AC 1; [1979] 2 WLR 401; [1979] 1 All ER 737; (1979) 38 P&CR 341; [1979] EGD 370; 250 EG 51, [1979] 1 EGLR 108; [1979] JPL 834, HL This was an appeal by the defendant, George Theodotou, from the decision of Judge Beddard, at Edmonton County Court, granting possession to the plaintiff landlords, Dinos and Angela Potsos, of a dwelling-house of which the defendant was the statutory tenant. David Neuberger QC and Andrew Keogh (instructed by Trayman & Co) appeared on behalf of the appellant; the respondents appeared in person. Giving judgment, PARKER LJ said: On October 26 1990 His Honour Judge Beddard at Wood Green County Court Trial Centre gave judgment against the appellant for possession of premises of which the respondents, Mr and Mrs Potsos, are owners and of which the appellant was at that time the statutory tenant. That judgment was given under Case 9 of Part I of Schedule 15 to the Rent Act 1977. The judgment also dealt with other matters, but we are not concerned with them. The possession order is stayed pending determination of this appeal. The facts are agreed. The respondents were married in 1973. Paul Potsos is now aged 22. He is the son of Mrs Potsos by a previous marriage. He is neither the natural, nor the adopted, son of Mr Potsos. He has lived with Mr and Mrs Potsos since he was 18 months old. Mrs Potsos was granted legal custody, with the father’s consent, in 1971. In 1974, by agreement between Mrs Potsos and her former husband, he took the name Potsos. Mr Potsos wished, and was always willing, to adopt Paul, but Paul’s natural father has withheld his consent, as I understand it because if he did consent he was fearful that Mr and Mrs Potsos might move with Paul to Cyprus. Case 9 of Schedule 15 provides that an order for possession of a dwelling-house subject to a statutory tenancy may be made: Where the dwelling-house is reasonably required by the landlord for occupation as a residence for — (a)  himself, or (b)  any son or daughter of his over 18 years of age, or (c)  his father or mother, or (d)   if the dwelling-house is let on or subject to a regulated tenancy, the father or mother of his wife or husband and the landlord did not become landlord by purchasing the dwelling-house or any interest therein after . . . and then a series of dates are set out. So far as (d) is concerned it should now be read as if it said ‘the father or mother of his wife or husband’ because, as a result of subsequent legislation, the opening words have disappeared. That provision did not appear in the Rent Act legislation until 1965. The question to be determined is whether, where a husband or wife are joint landlords and claim possession on ground (b) — that is94 to say, for any son or daughter — the claim falls within that provision when the son or daughter referred to is, as here, the natural son or daughter of one only of the joint landlords and neither the natural nor the adopted son of the other. It is common ground that if, as the judge held, such a claim does fall within Case 9(b), the appeal must be dismissed, but that if it does not so fall the appeal must be allowed. The appellant’s case is a simple one. In Baker v Lewis [1947] 1 KB 186 this court had to consider whether, under the equivalent in the Rent Act of 1933, Case 9 could be invoked in the case of joint landlords at all. It was held that it could and that the word ‘landlord’ included ‘joint landlords’. In the course of his judgment, however, Somervell LJ looked forward somewhat and expressed, obiter, an opinion as to the position in a case where there were joint landlords and only one of them required the possession of the dwelling-house for his own occupation as a residence. He said: I am not in any way implying or suggesting that this para (h) is only applicable in the case of joint owners where they are desiring the dwelling-house for occupation as a residence for them all. I myself am inclined to take the view that it has a wider application and that it would cover the case where A, B and C, being joint owners, put forward a claim for possession, in the circumstances in which it would arise, alleging that the residence is required for occupation as a residence by A. I only mention that in case any misunderstanding should arise if anybody suggested that our decision impliedly limits the section to cases like the present where both joint owners are wishing to occupy. The other case is of course open to argument in the future. Asquith LJ, however, took a different view. He said: Where there are two or more joint beneficial owners, I would incline to a construction of (h) narrower than that put forward, or kept open, by my brother. In the event (i) (ii) and (iii) of (h) should, I think, be read as follows: in (i) for ‘himself’ read ‘themselves’; in (ii) for ‘any son or daughter of his’ read ‘any son or daughter of theirs’ and in (iii) read ‘their father or mother’. Where, read in this way, neither (i) (ii) nor (iii) has any application, such beneficial owners would fail — for instance, if they proceed under (ii) and are not a married couple with a child, or if they proceed under (iii) and have not got a parent in common; but they would fail in that case not because there are several of them or because they are not ‘a landlord’ within the opening words of the section, but because they could not bring themselves within the language of (i), (ii) or (iii) construed in the way I suggest. To bring that language up to date (i), (ii) and (iii) should be read as (a), (b) and (c) of Case 9, otherwise there is no material difference. There was not, as I have already said, at that stage, the equivalent of what is now para (d) of ase 9. Those opposing views were both obiter, but in the following year in McIntyre v Hardcastle [1948] 2 KB 82 this court had directly to consider which of the two views was correct. In that case two sisters were joint landlords and claimed on the basis that the premises were reasonably required by them as a residence for only one of them. It was held that Asquith LJ’s view was correct and that the claim therefore failed. That case is, of course, binding upon us. Since that time the Rent Acts have been re-enacted, consolidated and amended in 1965, 1968 and 1977. Thus it is said that the judgment of the court in McIntyre has been adopted and approved by Parliament. It follows, so it is submitted, that the claim in this case must fail. Paul Potsos is not their son, he is the son only of Mrs Potsos. It is, however, clear that in neither of the two cases was the court considering the application of Case 9 except in regard to its opening words and para (a) and I do not regard this court as being bound by that case on the construction of (b), (c) or (d). Before returning to the statute itself I should mention two further cases. First, Lloyd v Sadler [1978] QB 774. The section under consideration in that case was section 3(1)(a) of the 1968 Rent Act. That section is in the following terms: After the determination 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. In that case there were joint tenants but only one of them was in occupation at the material time. At p 786 Megaw LJ said: In my opinion, the judgment of Scrutton LJ in Howson v Buxton shows that, where the strict application of the doctrine of joint tenancy would lead to unreasonable results, or results which the legislature is unlikely to have intended, it is permissible for the court to conclude that the legislature did not so intend but that, instead in such a case, the phrase ‘the tenant’, where there is a joint tenancy, is to be read as meaning ‘the joint tenants or any one or more of them’. In the present case, if the construction of the section put forward by Mr Neuberger would lead to unreasonable results or results which the legislature are unlikely to have intended, we are, in my view, permitted so to construe the section that those unreasonable results are avoided if that can legitimately be done without doing violence to clear language. The second case to which I should refer is Tilling v Whiteman [1980] C 1. That case concerned the position under Case 10 of the Schedule where joint owners were claiming that only one of them desired to occupy. It was held by the House of Lords, reversing this court, that this was a matter of no importance. In other words, the case being under Case 10 of the Schedule, they took a directly contrary view to McIntyre. McIntyre was, however, mentioned in terms which, in my view, show that their lordships had considerable doubt about the correctness of the decision and would not be averse to an opportunity to express their own views upon it if it should arise. I return to the section. As a result of McIntyre we are bound, in my view, to regard (a) as being ‘themselves’ where there are joint landlords. If one then goes to (c), according to Asquith LJ this must be read ‘their father or mother’. In other words, as he expressly said, there must be a common parent. In the case of an ordinary married couple there cannot be a common parent, because in such a case there could only be a common parent if they were either brother and sister making an incestuous, marriage or a brother and half-sister, in which case, although it may not strictly be described as incestuous, it is undoubtedly within the prohibited degrees of relationship under the Marriage Act 1949. I am quite unable to suppose that Parliament can possibly have intended such a result to flow, because even in those days joint ownership of property by married couples was a well-known situation. If one then comes to (d) which now reads ‘or the father or mother of his wife or husband’, it is quite clear that Asquith LJ’s process of construction cannot possibly apply. Therefore, it appears to me that one must try to see what ought to be done to make sense of the situation. Returning to (b), which is the one with which we are concerned in this case, one sees that it reads, according to Asquith LJ: ‘Any son or daughter of theirs over 18 years of age.’  It is quite clear that there is required a small amendment only to this section to make sense of it. It could be done in the same way that Megaw LJ used in Lloyd v Sadler, because all that would need to be done would be to read — ‘any son or daughter of theirs or either of them’. It is also to be observed that, if one is to include the plural for the purposes of para (a) and the opening words, there can be no objection to reading the plural in the case of other provisions of the section, so that (b) would read, ‘any sons or daughters of theirs, or either of them, over 18 years of age’; and one would find in (c) that it would be ‘their fathers or mothers or any one of them’. The purpose of this section appears to me to be to preserve to landlords some measure of control over their property, which had been made subject to great restriction by the Rent Acts, and looking at the section as a whole it appears to me that the intention of Parliament was clear. It was to allow landlords to recover possession in broad terms for the immediate families of both the husband and the wife. I am not prepared to reach a conclusion that excludes persons such as Paul. He is undoubtedly a member of the family consisting of Mr and Mrs Potsos and their four children. Those four children consist of a son of Mrs Potsos, a daughter of Mr Potsos, and two further children of both of them. Whatever may have been the position in 1947 and 1948, when strict legal language was adhered to rather more than it is at the present moment, we have moved on and can adopt both a purposive construction and take into account modern conditions. On that basis I would read into this section the words that I have mentioned in this judgment and I would dismiss this appeal. Before concluding this judgment however, I would like to pay a tribute to Mr Neuberger, to whom I am most indebted for his argument, and to whom also Mr and Mrs Potsos should be indebted for he has, albeit appearing against them, very properly brought to our attention every point which they could possibly make. I would dismiss this appeal. Agreeing, STAUGHTON LJ said: In a judgment which is both comprehensive and of high quality His Honour Judge Beddard dealt quite briefly with the issue of law which is the only subject-matter of this appeal. He set out the dictum of Asquith LJ in Baker v Lewis, but was not apparently referred to the case of McIntyre v Hardcastle. Then he said: 95 I have no hesitation in concluding that if Lord Justice Asquith was making such obiter observations in relation to an action under the 1977 Act and in the modern context of family relationships, he would have expressed himself in terms which would not have purported to exclude children in the position of Paul and Alexia in the present case. In the present case Mr Potsos would have adopted Paul had Paul’s father been prepared to consent. Paul has been treated as Mr Potsos’ own child since he was 18 months old and has taken his name. I do not feel bound by Baker v Lewis to hold that the Plaintiffs’ Case 9 claim fails in limine and I do not so hold. For my part I do not feel able to agree with that reason. The words ‘son or daughter’ in Case 9 of the Rent Act 1977 must, I should have thought, refer either to a biological child or to one that has been lawfully adopted. Paul Potsos is the biological son of Mrs Potsos, one of the landlords. He is not the biological or the lawfully adopted son of Mr Potsos. If Parliament in the Rent Act intended some wider concept, such as that of a child of the family in matrimonial legislation, I think Parliament would have expressly said so. However, under the 1977 Act it is, in my judgment, sufficient if the son or daughter is either the biological or the lawfully adopted son or of any one of the joint landlords and not of both or all of them. Let it be assumed that under the 1933 Act, Schedule 1 para (h), in the case of joint landlords, the word ‘himself’ meant ‘themselves’ and the word ‘his’ meant ‘theirs’ or ‘their’, as Asquith LJ has said. However, in 1965, when the Rent Act of that year was enacted, Parliament by Schedule 1, Part II, para 12(3) added the words ‘or the father or mother of his spouse’. In English law two or more joint landlords cannot have the same spouse. The wording was changed slightly in the consolidating Act of 1968, so that it read the same as in the Rent Act 1977. Joint landlords cannot comply with para (d) of Case 9 unless, as Mr Neuberger suggested with immense ingenuity, they happen to be married to two sisters or two brothers. That, I think, one can take to be a case so rare as not to have been in the contemplation of Parliament. When Parliament adds new words to a section it does not normally intend to change the meaning of old words which are left untouched, unless it says so expressly. But against that consideration one must also try to make self-consistent sense of the new section as a whole. If, as I think must be the case, the word ‘his’ in para (d) of Case 9, as it now stands, cannot mean ‘their’ in the case of joint landlords and must mean ‘any one of their’, it would be inconsistent still to read the words ‘himself’ and ‘his’ in paras (a) (b) and (c) in the sense enunciated by Asquith LJ. It follows, in my judgment, that since 1965 the interpretation of Asquith LJ no longer applies. Accordingly, I agree that this appeal must be dismissed. SIR GEORGE WALLER agreed and did not add anything. The appeal was dismissed with costs limited to £200; possession within 28 days; legal aid taxation certified for two counsel; application for leave to appeal to the House of Lords refused.