Richards and others v Green

Rent Act 1977, section 2(3) — Statutory tenancy — Effect of statutory tenant’s temporary absence — Action by landlords claiming possession on the ground that the statutory tenancy had ceased by non-residence — Appeal by landlords against decision of county court judge in favour of tenant — Defendant tenant left the flat of which he was the statutory tenant in order to stay with, and care for, his father and mother, both of whom were seriously ill — The defendant went to stay in his parents’ house in June 1980, leaving behind his furniture, books, records and some clothing — His mother died soon after and his father died in January 1981 — Defendant continued to stay in the house which had been his parents’ — It required a lot of work to be done before the defendant, who had inherited it, could put it on the market — By the date of the trial of the possession action the house was on the market and the defendant was receiving offers for it — There was some conflict of evidence as to the number of times the defendant returned to the flat during his stay at the parents’ house, but his evidence was that he wished to return permanently to the flat — He also gave evidence that he had allowed friends to live at the flat — Held that the judge was justified in holding that it was a case of temporary absence for a number of reasons, the defendant intending to return to his own flat — His statutory tenancy of the flat continued — Landlords’ appeal dismissed This was an appeal by the landlords, Haik Richards, Victor Richards and Ann Richards, from a decision of Judge Hunter at Wandsworth County Court, refusing to grant them possession of a top-floor flat at 69 Onslow Road, Richmond, Surrey, of which the defendant, Robert Nicholas Green, had been the statutory tenant. N P Le Poidevin (instructed by Dixon Ward & Co, of Richmond, Surrey) appeared on behalf of the appellants; J G S Waite (instructed by Piper Smith & Basham) represented the respondent. Giving judgment, EVELEIGH LJ said: This is an appeal against the refusal of His Honour Judge Hunter to grant the plaintiffs possession of the top-foor flat at 69 Onslow Road, Richmond, Surrey, of which the defendant is the statutory tenant. The defendant left those premises to care for his parents in June 1980. The father and mother were seriously ill. They lived in a house which contained a number of flats, owned by the father, at 5 North Villas, Camden Square. The mother died shortly after the defendant went there in June 1980 and the father died in January 1981. The defendant continued to live there. His place of work was conveniently close and he had some difficulty in travelling, the precise medical reason for which does not appear. But, in that top-floor flat at Onslow Road, he left his furniture, he left books, records and some clothing. He claimed that he returned to those premises about 20 to 30 times a year, but the judge did not accept that. The evidence given by the plaintiffs was that he was seen there only rarely and had been seen only twice between July and December 1982. The case was heard in December 1982. The defendant inherited the father’s property and a lot of work had to be done to put it into good shape. The position was finally reached where the tenants in that house had left, where repairs had been done and the defendant was in a position to put it on the market. This he did and, at the time of trial, he had received offers of around £85,000 for the house, although he apparently hoped to get an offer of £95,000. He told the learned judge that he intended to return permanently to Onslow Road and, furthermore, that a lady whom he intended to marry had been living there on and off, as had another friend, a man friend of his called Robbie. Those briefly are the facts of this case and the learned judge considered the matter with some anxiety. He, it would seem from his judgment, regarded it as somewhat distasteful that a man should105 own a property valued around £90,000 and, at the same time, be able to assert a claim to the statutory tenancy of the top-floor flat. But, in spite of that, the judge came to the conclusion that the flat at Onslow Road was the defendant’s home, was treated by the defendant as his home. He was referred to a number of the cases which deal with this particular problem, the question that is posed in section 2(3) of the Act of 1977, and he came to the conclusion that the defendant, as I say, treated this as his home and intended to live there. It is very difficult in a case like that to ask this court to reverse the decision of the learned judge. Mr Le Poidevin has tried valiantly to do so and he has argued that this is really a case of a man keeping his options open and, therefore, has no sufficient intention to satisfy the Acts in so far as the Onslow Road premises are concerned. But it seems to me that this case is quite consistent with a person who has an absence from home forced upon him by the illness of his parents and thus his absence is, by the very nature of its cause, only a temporary thing. How temporary, of course, is another matter. But the period in this case is explained initially by the illness of the parents and subsequently by having to deal with the parents’ property coupled, no doubt, with the powerful factor that the parents’ house was near to his place of work. He stayed there, preparing the house for sale, and, as I say, the fact that he was not then living daily at Onslow Road is explained both by the need to administer the sale of the parents’ house and by the fact that it was very convenient for him at that time to stay there. But the whole of the evidence, as I see it, points to the presence in the parents’ home as being a temporary one and not the case of a man who is living there — that is in the parents’ home — as his own home, and this does not become a case of a man with two homes at all. It is a case of a man with one home, namely Onslow Road, who is for a series of reasons temporarily residing elsewhere. That is the way it seems to me that the learned judge regarded it and, for myself, I can see no reason to disturb his judgment. I would dismiss this appeal. Agreeing, PURCHAS LJ said: The learned judge delivered a reserved judgment from which it is apparent that he paid great attention to the evidence which he had heard and applied his mind to the central question as to the nature of the residence in the property, for the possession of which the plaintiffs sought an order. The learned judge sets out very carefully the leading authorities on the matter in the context of his comment at the beginning, which reads: ‘As appears from the facts which I have found, this is a borderline ‘two-house’ case.’  Then, having considered the authorities, including the recent one in this court of Regalian Securities Ltd v Scheuer (1982) 263 ESTATES GAZETTE 973, where an order for possession in the county court was upheld, he returned to the problem in these words: The question has caused me some trouble. There had come to the defendant a substantial asset; it provided him with a house which was, in many respects, more suitable. However, he prefers to live in Richmond and intends to return to Onslow Road; should he be allowed to? The learned judge then adverts to the question, which is not relevant to this appeal, as to whether someone in possession of valuable assets is an appropriate subject for protection under the Rent Acts. The Acts have provided protection where a man has an intention to return to his residence and his home. The learned judge found that was the respondent’s intention and, notwithstanding the submissions made by Mr Le Poidevin, the appeal really was hopeless. In cases of this kind, where the learned judge has applied his mind to the right issues, found the appropriate facts, there is hardly any room at all for an appeal and certainly not for a successful one. I agree with everything that has fallen from my Lord and I would also dismiss this appeal. The appeal was dismissed with costs.