Regalian Securities Ltd v Scheuer and another

Rent Act 1977 — Statutory tenant of flat, while still continuing to use the flat, moved into house purchased by future wife and established a home there with her and their children — Practice of family was to let the house for six months in the winter to increase the family income and during that time to find accommodation elsewhere, by going abroad, staying with wife’s parents, or ‘camping’ in the husband’s flat — Husband at other times used the flat as a place to work or to relax without the distraction of small children — Landlords of flat brought proceedings for possession — Question as to whether husband had lost statutory protection — County court judge decided that he had as his real home the family house — Decision criticised on behalf of husband on the ground that the judge had not properly considered the husband’s user of the flat, which was more extensive than that of the rest of the family — Review of law by Court of Appeal — Principles restated — ‘Two-home’ men — Held that there was ample material on which the judge could find that it would be artificial to say that the husband occupied two homes which were within 2 or 3 miles of each other — Judge’s conclusion justified that the occupation and user of the flat was not such as to confer statutory protection on the husband — Appeal dismissed This was an appeal by David Andrew Scheuer from a decision of Judge Curtis-Raleigh at Bloomsbury and Marylebone County Court granting possession to Regalian Securities Ltd of a flat at 6 Lansdowne Court, Lansdowne Crescent, London W11, of which Mr Scheuer had been the statutory tenant. E A Bano (instructed by Douglas-Mann & Co) appeared on behalf of the appellant; E R E Caws (instructed by Thornton, Lynne & Lawson) represented the respondents. Giving judgment, CUMMING-BRUCE LJ said: These proceedings before the county court judge raise another of those sets of facts which involve rather nice distinctions for determination by the court, and it is important to bear in mind, as has been said in many authorities, that it is for the trial judge who hears the case to make his findings of fact and to apply the appropriate criteria which have to be collected from what is now quite a long history of case law, and to decide whether the situation of a particular tenant is the situation which is within the scope and intent of the relevant Rent Act. The relevant Rent Act now is the Rent Act 1977, which by section 2(1)(a) reads: (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. I think I can leave out (b). Subsection (3): (3)  In subsection (1)(a) above and in Part I of Schedule I, 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 (that is to say, in accordance with section 3(2) of the Rent Act 1968). When one considers that subsection its effect is this: Parliament, in the earlier Rent Acts, did not define the occupation of a dwelling-house as a residence, and the courts therefore had to decide the meaning and scope of those words. The courts have done it, and for a period of half a century there is a considerable body of case law deciding in effect on which side of the line a tenant comes: is he on the side which entitles him to invoke the statutory protection for his tenancy or is he not?  One has to look at the case law in order to discover the relevant principles to apply in any given case which arises on the application of the 1977 Act. The question that the county court judge has to decide has been described as essentially a jury question of fact. The judge must direct himself properly on the law, and for that purpose he must discover the relevant principles from the case law. Having done that, then he applies the relevant principles to the facts; his decision is a decision having the characteristics of a jury decision of fact, which has been neatly described recently in the High Court as a determination by the inter-cranial jury. The facts in this case are really quite simple. In 1968 Mr David Scheuer, the appellant in this court, entered into a lease with the plaintiffs’ predecessors in title whereby he became the tenant of a flat at 6 Lansdowne Court, Lansdowne Crescent, a residential flat. The lease was in writing for a term of three years, determining on September 29 1971. The only covenants to which it is appropriate to refer are that by covenant 2(e) the tenant covenanted not to use the premises ‘for any purpose other than as a private residence and . . . not to take in boarders or lodgers’; and, covenant 2(j): Not at any time during the said term to assign underlet charge or part with the possession of or grant an exclusive right to use the said Flat . . . without the previous consent in writing of the Landlords such consent not to be unreasonably withheld. He moved in, and he lived in the flat, which was clearly his home. On September 29 1971 he held over after the determination of the term, and thus became a statutory tenant entitled to claim the protection of the Rent Acts. In the course of the years his original landlord was succeeded by Regalian Securities Ltd, the respondents to this appeal. The flat consisted of one bedroom and one living-room, a kitchen and bathroom. It was an ordinary residential flat. In 1973 the appellant met a Miss Delamar and made friends with her. She had a flat in Ealing. Their friendship became closer and in 1975 she bought a house in Rylett Road, some 3 or 4 miles from his flat in Lansdowne Crescent. The house she bought was a fairly large house. It was a semi-detached house with six rooms, described as having four bedrooms and a garden. When she bought it, as appears from the evidence, he moved in with her, and they together established a home in Rylett Road. It was in that year that the eldest of the children, who are still living with the family, was born. When he moved in and made Rylett Road his home with Miss Delamar he kept on his flat. He did not move his clothes, he kept his furniture, and he continued to use the flat. The way in which he used it I shall come to in a moment. The house had been bought on mortgage in the name of Miss Delamar, and so I come to their personal situation. At all material times the appellant was a professional man pursuing the profession of actor and scriptwriter, also described as screenwriter. Miss Delamar, at all material times, was a make-up artist earning, on the judge’s findings, more than the appellant, such that at the time of the proceedings in the county court their joint income was described by the judge as some £7,000. From 1975 onwards the appellant and Miss Delamar devised a pattern of living in Rylett Road and elsewhere which had the following characteristics. They appreciated that if they moved out of their home in Rylett Road they could command, on a winter let, a substantial revenue, and that revenue is found by the judge as £3,750 in any given year; and although it is described as £3,750 per annum it is accepted in this court that that means that the consideration for the winter let was £3,750, some £600 a month. The pattern of living that they devised, and have pursued since, in spite of the arrival of their second and their third child — at the time them — was as follows. For six months in the winter they moved out of their home in Rylett Road in order to command the income of the winter let. When they did that they had to find somewhere else to go; and they had a number of places to go. The way that the judge put it was this: During the winter they let the Rylett Road house; they move out, are more or less homeless. Part of the time they go to Spain and part of the time they go to the wife’s parents in Devon. Mrs Scheuer and the children and husband spend about two months of the winter in the flat. It must be quite a strain because there is only one bedroom and three small children. They go there when they don’t find temporary accommodation elsewhere; it is a great help to the family finances to let the house since it can be let for about £3,500 per annum. During that time their ‘home’, in inverted commas changes from the house to the flat, when they live in the flat. That is a description of the movements of the family as a whole. But Mr Scheuer’s use of the flat was described by him in evidence and is referred to by the judge in his judgment. Ever since he moved to join the lady whom, in 1977, he married, namely, Miss Delamar, ever since he moved to Rylett Road, keeping on the the flat as he did, he has gone there frequently during the daytime because there he has found tranquillity, freedom from interruption, and a congenial situation in which to do his work. Although there is no evidence about the details of his sartorial life, that is where his clothes were. The evidence that he gave was that he kept nothing except gardening clothes in Rylett Road, so that when he wanted a change of shirt, I suppose, he would go round to the flat to change it. No details were given. His agent knew the telephone number of his flat, and his mail used to arrive at the flat and not, apparently, at Rylett Road. Then, when he and his wife had turned out of their home in Rylett Road in order to let the tenants in, his winter movements were as follows. For as short a period as possible — which might be, and were on some occasions, two months — he would live with the rest of the family packed into the flat. They equipped the bedroom with two bunk beds and a cot, and the living-room was described as equipped like a caravan. For as short a period as possible they would all be together in the flat. They left it as a family as soon as they could find anywhere else for Mrs Scheuer and the children; and the judge had evidence and made findings of what had happened in the last winter. Mrs Scheuer and the children had gone to Spain and the appellant had been able to accompany them to Spain and stay with them for a month. Then he came back to London and stayed in the flat. The rest of the family stayed on in Spain for a couple of months, and then, thanks to the hospitality of the appellant’s mother-in-law, Mrs Scheuer and the children resorted to Devon and stayed there until the winter tenancy ended and they could all move back into Rylett Road, which then resumed its character as the home of the family where all of them, including Mr Scheuer, would live, subject to two qualifications: (1) that his business, usually in London, took him out of London abroad for periods; and (2) though he was living with the family in Rylett Road he was going, during the daytime, to his hideout (if that is the right word) in the flat, where he did his work without the distraction of the small children. The respondents began proceedings for possession in the county court because they were under the mistaken impression that the appellant was subletting his flat, and all the proceedings were complicated by the allegation on the sublet, which involved the joinder of the appellant’s brother-in-law. The judge negatived that and there is no issue about that in these proceedings. It is clear from the defences that the appellant was very angry at this attempt to upset the arrangements that he made for the use of the flat by a wholly mistaken belief on the part of the landlords that he was subletting it. However, whatever the origin of the proceedings, when the case came on in the county court the issue was also raised as to whether the occupation of the appellant in the flat was a protected tenancy for the purposes of the Rent Act. Thereon hangs a further tale which goes some way to explaining the way in which the judge expressed himself in his judgment. The defence that was run on the part of the defendant in the county court was that the house in Rylett Road was not his home at all: it was the home of his wife. We have not heard that argument, which was rejected by the judge. What was presented was the case: ‘I have my home, it is the flat in Lansdowne Crescent where I keep my clothes and furniture. There is a house in Rylett Road which belongs to my wife where she and the children live, and there I am frequently with them; but my home is my flat in Lansdowne Crescent.’ That was the first defence which was presented on his behalf before the learned county court judge, so naturally when the judge came to his judgment one finds that he devotes a considerable amount of the judgment to the question whether Rylett Road was a separate home of Mrs Scheuer or whether it was also Mr Scheuer’s home. The judge had been referred to the well-known case of Beck v Scholz [1953] 1 QB 570 and examined the contentions that had been put to him in the county court. The criticism that is made first in this appeal of the judgment of the learned judge is that he did not address his mind to the question whether the appellant was occupying the flat as his residence so as to attract to himself the statutory protection of the Rent Act. The submission is that when the judgment is read as a whole it emerges that the judge focused his attention on the answer to the question: ‘Where did the family live?’  The judge answered that question with the reply: ‘The family had their home in Rylett Road, and during the winter they resorted to a number of different places; they squashed, in the minimum period possible, probably about two months, into Lansdowne Crescent. They went on to Spain. They parked themselves in Devon with grandmamma for as long as it was practicable and then waited for the moment when the winter lease ran out so that they could all return home to Rylett Road.’  Mr Bano submits that that was really the whole basis of the judge’s decision: he considered that state of affairs, identified Mr Scheuer with his family, decided that the only family home was in Rylett Road, and dismissed the contention that Mr Scheuer also had a home in Lansdowne Crescent because it could never sufficiently qualify as the family home for the family. He submitted that the judge failed to consider the user of the flat by Mr Scheuer personally, which was much more extensive and quite different from the user of the flat by the rest of the family, eg right through the whole year the appellant used the flat during the daytime when he went there for the purposes of his artistic and literary activities, and where he kept his clothes. Also during the winter, although the family were able to go for a prolonged period to Spain or to Devon, Mr Scheuer, with his professional commitments in London, could not stay with them for very long out of London, however much he might have liked to, and so, after he had settled the rest of the family, eg in Spain, he would return by himself and live in the flat as his residence, using it as his home, until the determination of the winter tenancy that was keeping him and the rest of the family out of their home in Rylett Road. The submission is that the judge did not address his mind sufficiently or at all to that user by the appellant of the flat, and it is submitted that had the judge done so he should have found that there was such a user by the appellant, quite apart from the rest of the family, as, on an application of the principles in the case law, would qualify Mr Scheuer to describe his user of the flat as his use of the flat as a second home, a second home which he occupied to a considerable degree for the purpose of his business while the rest of the family were away, but for a part of the time while they were with him. Alternatively, it is submitted that if on a scrutiny of the judgment it is not possible to say that the judge, had he considered it, would have reached that decision, then there must be a new trial in order to give the judge the opportunity to reconsider the facts in the light of the proper test, that test being that the judge should focus his attention on the appellant’s user of the flat and all the ingredients of that user, and then, without confusing himself by considering the degree to which the flat was used by the rest of the family, ask himself the question whether, on the authorities, that user qualifies as a second home of Mr Scheuer during the period that he was thus using it. So one comes to a consideration of the principles involved which have to be collected from the case law. I do not propose, in this judgment, to cite the long line of authority and to examine the individual judgments. They begin very early after the passing of the first Rent Act and they have continued unabated up to the present time. The explanation was given long ago by Scrutton LJ, and in 1931 also by Goddard J, sitting in the Divisional Court, that the draftsmen of the Rent Acts and Parliament never addressed their or its mind to the implications of the statute that was going through Parliament other than to express words the purpose of which was to enable tenants, faced with a housing shortage, to avail themselves of protection when their tenancies had expired, and nowhere in the statute law was there to be found the expression ‘occupation of residence as a home’. That has been developed in the case law; and the case law has developed this principle, that to qualify for statutory protection the relevant characteristics of the occupation must be occupation as a home. The court had to consider the situation of the seaman who had a home, for which he claimed a protected tenancy, from which he was absent for months on end in pursuit of his seaman’s calling. The court decided that although for months on end the home was not being used by the seaman as a home, yet it was within the contemplation of Parliament that that kind of use on the return of the seaman from his travels to the home that had for months been empty constituted sufficient user as a home to qualify for protection under the Acts. Then the next stage was when the courts had to consider the two-home situation. There is nothing in the Acts of Parliament which prohibits a person from claiming protection for more than one home, and so there is a whole series of cases in which the courts have decided the two-home situation. The question is: Does the occupation of the tenant of a second home have the characteristics which attract to the tenant the capacity of a person protected by the Rent Acts?  So one goes through the cases, Haskins v Lewis [1931] 2 KB 1, Skinner v Geary [1931] 2 KB 546, Langford Property v Tureman [1949] 1 KB 29, Hallwood Estates v Flack [1950] WN 268, until one comes to Beck v Scholz in 1953, which the learned judge expressly refers to in his judgment. One of the problems examined in those cases of two homes is whether the use of the second residence had such characteristics as to make it sensible to describe that user as user as a home as compared simply to a convenient resort. On one side of the line where a man with a house in the Home Counties had a flat in London where he slept twice a week in London for the purposes of his work, that was accepted as a sufficient kind of occupation to enable him to qualify for protection under the Rent Acts. Then, too, an urban dweller with the main home in a town: it has been held he was entitled to claim Rent Act protection for a weekend home to which he resorted at weekends for a couple of days a week. On the other side of the line it has been held that to be tenant of a property an hour and a half’s drive from your main home, the user in contemplation being simply the user for summer holidays, was not enough to imprint upon that user the characteristics of user as a home; and Ormrod LJ said in 1974, in Walker v Ogilvy (1974) 28 P&CR 288, that it was never the intention of the Acts to cover simply holiday housing. So what about the user of this flat by Mr Scheuer?  The judge’s finding was this: . . . regarding Mr Scheuer alone, I think his home is in the house. That is where he sleeps and eats very largely for the bulk of the year. Then he goes on in the last paragraph: The ‘home’ was undoubtedly at Rylett Road. Either he was a man of two homes or this was his only one and it would be very artificial to say that Mr Scheuer had two homes or that the flat was his only home. If he had two homes, it would be wrong to give Rent Act protection where those homes were within 2 or 3 miles of each other. When the judge used the words ‘if he had two homes’ I think what he is meaning there is ‘if he had two residential properties’. The appellant’s submission in this court is that the judge, when the judgment is scrutinised, can be shown to have failed to address his mind sufficiently or at all to the ingredients of the user of the flat by Mr Scheuer in its totality, so that the judge has failed, when applying the tests, to find the facts which would enable him to give the appropriate answer; and it is submitted that, had he done so, the judge must have concluded that the winter user of the flat by Mr Scheuer, together with the daily user, or nearly daily user, which continued throughout the year, was such as to imprint upon that user user as a home within the meaning of the authorities which I have briefly mentioned. For my part, first I think it important not to be misled into approaching the analysis of this judgment in too critical a spirit, recognising the way in which the case was presented to the learned judge, which was a very different way to the way in which it was presented to us. Secondly, in my view the learned judge was manifestly primarily impressed by what he regarded as the artificiality of the situation that existed in this case, which the judge regarded as too artificial to enable him to say that Mr Scheuer had two homes, much less only one in the flat. That finding of artificiality is clearly based upon his earlier finding, which was his finding on the explanation of their leaving their main or ordinary home for the winter. The judge had said: . . . to say that it is a ‘necessity’ is to suggest that the house is not viable otherwise. But that is not so. The whole family could stay there all the year round if it were not pressure of financial convenience which leads them to let it and induces the family to live in the flat for two months and out of the house for six months. However, they could all live at the house, though not so well on their combined finances, and maybe pay off the mortgage a bit more slowly if they were to live in the house for the whole of the year. Then the learned judge proceeds to refer to the judgment of Lord Evershed MR in Beck v Scholz. For my part, on the evidence given in the court below, and upon the findings of the learned judge, there was abundant material upon which the judge could find, and rightly find, that it would be very artificial to say that Mr Scheuer had two homes at all. And further, there was abundant material on which the judge could make the finding that if Mr Scheuer occupied two residences it would be wrong to give him Rent Act protection. What the judge goes on to say is ‘where those homes were within 2 or 3 miles of each other’. What he is encapsulating there, in my view, in a few words, is the anomalous situation of having a perfectly good home 2 or 3 miles away and maintaining that a residence that you had 2 or 3 miles away was also your home by reason of the user described in evidence. I find in the authorities which it is our duty to apply two principles that are relevant. First, the court inquires what is the extent and what are the characteristics of the user of the residence?  When that is ascertained the court also inquires: Is the nature of the residence during the period that it persisted the kind of residence that is within the contemplation of the Rent Act?  Is this the kind of residence that Parliament intended should clothe the tenant with the right to claim statutory protection?  The court has not confined its gaze simply to what went on in the residence: the court has also proceeded to examine all the circumstances in order to see whether the explanation of the residence led to the conclusion that it was the kind of residence that Parliament contemplated when it gave the statutory privilege. And so, finding that a house, empty for months on end, was returned to eventually from time to time by a merchant seaman, Parliament looked at the explanation of his absence and the explanation of his reason to return. And in the two-home cases Parliament looked at the explanation of the user and the courts did not confine their minds only to the physical facts of use. To my mind there is ample material here which could entitle the judge to say: ‘Accepting all that Mr Scheuer has said about his use of this flat during the summer and during the winter this is not a user with the character that is such as to grant him the right to claim the statutory protection given by section 2 of the Rent Act; he is not that kind of person when the explanation of the user that he makes of the flat is regarded.’ Mr Bano submits that the findings made by the judge do not go far enough, in description or analysis of the tenant’s occupation, to entitle this court to say that that was the deliberate determination of the judge, and therefore he invites this court to send the case back unless we can simply allow the appeal. I take the view that, on the facts which were not in controversy in the county court, those facts could not, on any proper application of the principles, clothe the appellant with the qualification which entitled him to claim the privilege of the Rent Act. For those reasons I would dismiss the appeal. Agreeing, EVELEIGH LJ said: The judge in effect found that the defendant used the flat as temporary accommodation for a special occasion, that is to say, when the house was let, rather than as a home. He said: They go there when they don’t find temporary accommodation elsewhere. And later in his judgment he said: When they occupy the flat they are crowded into it for the shortest possible time to enable the house to be let. One has in mind also that when the family did go to the flat they did not remain there for the whole of the time that the house was let, and certainly did not remain there as a unit: they went off elsewhere on holiday and, as my Lord has said, they, or some of them, went to stay with the grandmother. In my opinion the learned judge was fully entitled to come to the conclusion which he did; and, indeed, it is one that I would myself arrive at on the evidence in this case. It seems to me that the flat was being used simply as a temporary shelter until they deployed themselves elsewhere. Now there have been two criticisms of the learned judge’s judgment. First it is said that he did not consider the possibility of the defendant himself having two homes. I cannot accept that criticism. This very experienced county court judge had his attention drawn — and I suspect that it was unnecessary to do so — to the case of Beck v Scholz [1953] 1 QB 570. In that case the Master of the Rolls, Sir Raymond Evershed, at p 574, referred again and again to the two-home man. He said: The case is another illustration of one of the more difficult problems which have emerged from the rent restriction legislation, namely, the problem of the so-called ‘two-home’ man. And he went on to say, having referred to cases of two homes: In those cases, as a matter of commonsense and fact, it can be fairly and truthfully said that the country house and the London abode are each the man’s ‘home’. The learned judge himself quoted a passage in Beck v Scholz. Our note of the judgment does not set out that passage in extenso, but it is quite clear what the passage was, for he said: The criteria are those set out in the judgment of Lord Evershed in Beck v Scholz, and then went on to say: The wife and children are squarely within the words ‘occasional visits’. The passage in which those words are to be found begins at p 575, where the Master of the Rolls said: But the question posed, and to be answered by ordinary commonsense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant’s ‘home’, or, if the tenant has more than one home, as one of his homes. Occupation merely as a convenience for such occasional visits as I have suggested would not, I think, according to the commonsense of the matter, be occupation as a ‘home’. It is there one finds the reference to ‘occasional visits’ which the learned judge is noted as having referred to, and it is quite clear to my mind that the learned judge had read that passage. In those circumstances I find it quite impossible to say that the learned judge was not directing his mind to the possibility of a person having two homes. Indeed, he did in fact say: But is it right to regard the family as two distinct groups, that is where some of them have their home in Rylett Road and some live at Flat 6?  This is a possible approach especially where the family is broken. But that is not so here. He went on to say that the family in this case act as a unit. But criticism has been levelled against the learned judge for doing that. It is said that he looked only at the family as a whole and did not consider the case of the defendant himself in isolation: that is to say, the possibility of the defendant himself having a home at the flat. I cannot find that contention supported when one looks at the judgment. The case that had been put on behalf of the defendant was that the flat was his home, and that the family home belonged to the wife and was not to be treated as his home for the purpose of the case. The learned judge, it is true, considered very much the movement of the family, and I am sure would have been criticised if he had not done so, for this was a united family and there was no reason to think that the husband would wish to set up a separate establishment for himself that would be treated by him, and used by him, in the true sense as a home. But to say that the learned judge did not consider the case of the possibility of the defendant having a separate home of his own I think is wrong. He gave details of Mr Scheuer’s own use of the flat, and having done so he said: For the rest of the family one can only come to the conclusion that their only home is at Rylett Road, and I see there a clear contrast between the two positions. He is there impliedly saying that that may not be the case for Mr Scheuer himself. But if I had any doubt about the matter it seems to me that it is firmly set at rest by these words of the learned judge. Having considered the family as a whole he then says: But even regarding Mr Scheuer alone, I think his home is in the house. That is where he sleeps, and so on. In another part of his judgment he says this: When counsel for the first defendant asked the rhetorical question: ‘When did he abandon the flat as a home?’, I find no difficulty in answering: ‘When the wife bought the house.’ So that again he is recognising the fact that it is possible for the flat to be a home for Mr Scheuer but has come to the conclusion that he has abandoned it as such. Finally he concluded his judgment by saying: There was really only one home — the house, which again indicates, to my mind, that he was considering the possibility of there being two and rejected it. I, too, would dismiss this appeal. Also agreeing that the appeal should be dismissed, MAY LJ said: I am, with respect, less satisfied than my Lords that the learned judge in this case asked himself what was the correct question, namely, whether the appellant’s occupation of the flat in Lansdowne Crescent was such as was properly, in a commonsense way, to be described as occupation as a home. The learned judge is, in my view, in no way to be blamed, however, because it is quite apparent that the case was argued before him from very different premises than the way in which it was argued on the appeal before us. Be that as it may, on the facts and undisputed evidence in the cases which have been referred to in my Lords’ judgments I agree that if the trial judge had in fact asked himself that proper question he would have been bound to hold that the appellant’s occupation of this flat could not be characterised as occupation as a home. In so far as the appellant’s user of the flat in the summer months was concerned he certainly, in my judgment, did not use it as a home or part of his home: he used it partly as an office, partly as a study, partly as a refuge. In so far as his use of the flat in the winter months was concerned, I think that a jury, properly directed, would conclude that the family occupied that flat as a convenience, as a temporary expedient to enable them to preserve and to continue to have what was in truth the only home of husband, wife and children, namely the house in Rylett Road. I agree with the last comment of the learned judge in his judgment, that to consider the flat as a home would have been an artificial approach, and I think that if a jury answering the question posed by Evershed MR in the case of Beck v Scholz had come to the conclusion that the occupation by Mr Scheuer of that flat was occupation as a home, it would have been a perverse one. In those circumstances I also agree that this appeal should be dismissed. The appeal was dismissed. No order was made as to costs. Legal aid taxation was ordered.