Robert Thackray’s Estates Ltd v Kaye

Rent Act 1977 — Statutory tenant — Temporary transfer of statutory tenant to neighbouring flat during repairs and renovations to the mews in which both flats were situated — Problems after completion of works — Skinner v Geary principle — Need for animus revertendi and corpus possessionis Appellant was the statutory tenant of flat no 6 in the mews —- She accepted the need for a temporary transfer to no 5 — She had hoped, but had received no agreement from the landlords, that certain alterations which she desired would be carried out to flat no 6 in her absence — She moved into no 5 in October 1986 and found that in fact it was more convenient than no 6, as it had an extra bedroom suitable for her 13-year-old son — Her request to make the transfer permanent was not, however, granted — In February 1987 the appellant was notified that the works to her old flat, no 6, had been completed and that the flat was ready for her reoccupation — It was her attitude during the succeeding months that gave rise to the main issue in the case — She failed during this period to express an unqualified intention to return and attempted to impose conditions of one kind or another on the landlords or to exact concessions from them — Eventually the landlords served a notice to quit on her, expiring on August 14 1987 — On August 15 the landlords changed the locks on no 6 and later sought an order for recovery of possession of no 5 — Appellant commenced proceedings for an order permitting her return to no 6, to which the landlords replied by seeking possession of both no 5 and no 6, damages for use and occupation of no 5, and arrears of rent in respect of no 6 — The county court judge made an order in favour of the landlords’ claims — The tenant appealed Although there had been some argument to the contrary, the Court of Appeal decided that at all material times the appellant had been a statutory tenant — On or about February 23 1987 she became well aware that her flat at no 6 was ready for her return and that the landlords were willing for her to do so — This opportunity remained open to her until August 14, but she never availed herself of it — Her attitude during this period was nothing more than a conditional intention to return — In the opinion of the court the contingencies attached to her intention during the relevant period were far128 too remote to render it a sufficient animus revertendi to retain the protection of a statutory tenancy — She was hoping all the time to bring pressure on the landlords to carry out the works she wanted in no 6 and there was no evidence of a definite intention to return if she could not eventually persuade the landlords to carry out the works — By rejecting the opportunity offered to her without demonstrating a firm intention to resume occupation she lost the protection of the Rent Act as a statutory tenant — Her appeal had to be dismissed The court reviewed a number of authorities from Brown v Brash onwards and distinguished three cases where a conditional intention to return had been held to be sufficient, Leslie & Co Ltd v Cumming, Wigley v Leigh and Tickner v Hearn The following cases are referred to in this report. Brown v Brash [1948] 2 KB 247; [1948] 1 All ER 922, CA Cove v Flick [1954] 2 QB 326n; [1954] 3 WLR 82n; [1954] 2 All ER 441, CA Dixon v Tommis [1952] 1 All ER 725; [1952] WN 146, CA Duke v Porter [1986] 2 EGLR 101; (1986) 280 EG 633; 19 HLR1, CA Hallwood Estates Ltd v Flack (1950) 66 TLR (Pt 2) 368; [1950] WN 268; [1950] EGD 119; 155 EG 408, CA Leslie & Co Ltd v Cumming [1926] 2 KB 417 Skinner v Geary [1931] 2 KB 546, CA Tickner v Hearn [1960] 1 WLR 1406; [1961] 1 All ER 65, CA Wigley v Leigh [1950] 2 KB 305; [1950] 1 All ER 73 This was an appeal by Mrs Elizabeth Kaye from the decision of Deputy Judge McDonnell at Bloomsbury County Court in favour of her landlords, Robert Thackray’s Estates Ltd, in regard to her tenancy of a flat at 6 Scampston Mews, London W10, and her occupation of flat 5 at the same address. Stuart Cakebread (instructed by Ronald Fletcher & Co) appeared on behalf of the appellant; Miss Jane Gill (instructed by Gray Marshall & Campbell) represented the respondents. Giving judgment, SLADE LJ said: This is an appeal by Mrs Elizabeth Kaye from an order of His Honour Deputy Judge McDonnell made on February 9 1988 in the Bloomsbury County Court. The order was made in consolidated actions to which the parties were Mrs Kaye and Robert Thackray’s Estates Ltd (‘the landlord’). In 1962 there was granted to Mrs Kaye’s former husband a tenancy of a flat known as 6 Scampston Mews, London W10. There is no evidence before us as to the nature or the term of that tenancy. However, we know that in 1985 following divorce proceedings it was transferred to Mrs Kaye. I will take most of the subsequent history of the matter from the primary facts found by the judge in his judgment, which are not in dispute. In October 1986 the landlord wished to carry out certain repairs and renovations to Scampston Mews, including no 6. Its agent, Mr Sanders, told Mrs Kaye that it wished to do various works and that it would be necessary for her to move out of no 6 for a short period, during which she would be accommodated in no 5, of which the landlord was also the owner. On October 10 1986 she had a meeting with Mr Sanders. Her evidence was that it was agreed at that meeting that the chimney breast in no 6 should be removed, that a cupboard at the top of the stairs would be replaced, and a wall between the kitchen and the lounge removed in order to give more room. She said that it was also agreed that lining paper would be put on the walls. These were all improvements which she herself desired. The judge, however, preferred the evidence of Mr Sanders on this point. Mr Sanders’ evidence was that, while he had told Mrs Kaye it was practical to do the alterations, he had never undertaken to do them and told her he could not agree to do them without the landlord’s express consent. The judge found (I quote from the notes of his judgment at p 2): ‘He meant and she understood him to mean that it was practical to do the alterations, not that it was agreed that they would be made.’  The judge also said (I quote from the same page): ‘I think the position is that she hoped those things would be done’. In October 1986 Mrs Kaye moved to no 5 in response to the landlord’s request. She found it more suitable accommodation for herself and her son, Robert, who was aged about 13, than was no 6 because it had two bedrooms, while no 6 had only one. She caused a number of letters to be written on her behalf to the landlord during November supporting her request for herself and her son to be transferred permanently as tenants to no 5 instead of no 6. However, this request was not complied with and on February 23 1987 the landlord’s architects notified her that the works to no 6 had been completed and that no 6 was again ready for her occupation. On April 1 1987 the housing action centre wrote to the landlord’s solicitors reiterating points made in an earlier letter of January 29, claiming that the alterations which Mrs Kaye had expected the landlord to carry out had not been carried out. They expressed her willingness to agree to return to no 6 but her wish that the alterations should be carried out first. On July 16 1987 the landlord’s solicitors wrote to her a letter asking her to accept it was ‘notice terminating your licence to occupy 5 Scampston Mews, London W10, such termination to take effect on August 14 1987’. On the same day they served on her what was described as a ‘notice to quit’. The material part of this notice read: We on behalf of your landlord(s) Robert Thackray Estates Limited . . . give you NOTICE TO QUIT and deliver up possession to them of 6 Scampston Mews, London W10 on 14th August 1987 or the day on which a complete period of your tenancy expires next after the end of four weeks from the service of this notice. There then followed some correspondence between the parties. It was marked ‘without prejudice’, but the prejudice has been waived. On July 24 1987 Mrs Kaye’s solicitors wrote to the landlord’s solicitors referring to an earlier telephone conversation and saying: As stated our client would prefer to stay in the two bedroomed flat because she has a 13 year old son living with her and we await hearing from you as to whether this could be arranged with obviously an increased rent. If this is not possible we would put on record that our client is not happy with the renovations at the property. We would also ask, if our client were to agree to return to 6 Scampston Mews, if it would be possible for her to have an extra two months to arrange for the decoration of that flat prior to her moving in. I pause to observe that even at that late stage Mrs Kaye’s solicitors were not demonstrating any clear intention on the part of Mrs Kaye to return to no 6. On August 6 1987 the landlord’s solicitors replied indicating that it was not prepared to allow Mrs Kaye to stay on in no 5. On August 10 1987 a Mr Hopkins who, I understand, was a representative of the landlord who had had some conversation with Mrs Kaye, wrote to Mr Sanders saying that she had that day visited him ‘to discuss matters relevant to her move from no 5 to no 6’ and asking whether the landlord would bear the costs of installing a telephone, disconnecting and reconnecting a cooker, removal costs for all personal effects and furniture and installation of a television aerial. On the same day (August 10 1987) Mrs Kaye’s solicitors wrote to the landlord’s solicitors telling them that ‘the other reason that our client would require extra time for moving is that she wishes to arrange for the installation of central heating at the premises’. Thus, by the time when the notice to quit expired Mrs Kaye had still not expressed an unqualified intention to return to no 6, but was still attempting to impose conditions of one kind or another on the landlord or to exact concessions from it. On August 14 1987 both the landlord’s notices to quit expired and Mrs Kaye continued in occupation of no 5. On August 15 the landlord changed the locks at no 6. On September 30 it issued an originating application in the Bloomsbury County Court seeking an order for recovery of possession of no 5. That was followed by the issue of proceedings by Mrs Kaye herself against the landlord in the county court seeking an order that the landlord permit her to return to no 6. The landlord filed a defence and counterclaim in the latter proceedings by which it sought possession of both no 5 and no 6, damages for wrongful occupation of no 5 and arrears of rent for no 6 from February 23 to August 14 1987. By his order of February 9 1988 the judge ordered that the landlord should recover against Mrs Kaye, first, possession of no 5 within 42 days; second, the sum of £675 damages for use and occupation of those premises; third, possession of no 6 forthwith; and fourth, the sum of £330.75 as arrears of rent in respect of no 6. Mrs Kaye now appeals from this judgment. The possession order in respect of no 5 has, I understand, been stayed pending the hearing of this appeal. While asking that the possession order should continue to be suspended until such time as the landlord permits her to reoccupy no 6, she does not on this appeal claim any rights in respect of no 5. Before turning to the judge’s judgment, it will be convenient to read the relevant statutory provisions, which are to be found in section 2 of the Rent Act 1977. Subsection (1) so far as material provides: 129 Subject to this Part of this Act — (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; . . . Subsection (2) provides: In this Act a dwelling-house is referred to as subject to a statutory tenancy when there is a statutory tenant of it. Subsection (3) provides: 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 (that is to say, in accordance with section 3(2) of the Rent Act 1968). Thus the authorities relating to the earlier Rent Acts are applicable in the construction of this subsection. Subsection (4) provides: A person who becomes a statutory tenant of a dwelling-house as mentioned in subsection (1)(a) above is, in this Act, referred to as a statutory tenant by virtue of his previous protected tenancy. As the wording of section 2 itself shows, if a person ceases to occupy premises, he ceases to have the protection of the Act, the policy of the Rent Acts being to enable a person paying the proper rent fixed by Parliament to remain in occupation: see Skinner v Geary [1931] 2 KB 546 at p 560 per Scrutton LJ. This principle is sometimes referred to in the cases as the ‘principle of Skinner v Geary’. In the notes of his judgment which are before us, submitted to and approved by the judge some eight months after the event, he is recorded as expressing his ultimate conclusions thus (at pp 3 and 4): It is clear that before August 14 — Mrs Kaye — was either a protected contractual tenant or a statutory tenant of no 6. It is clear that any contractual tenancy came to an end on August 14. The central question is whether on the expiry of the contractual tenancy and at all times thereafter she continued to occupy no 6 as her residence. Two questions arise: did she occupy it at all or is she deemed to have occupied it having left it for a temporary purpose and with a firm intention to return? These are difficult questions. I am satisfied that Mrs Kaye’s state of mind was that she wanted to stay as long as she could in no 5 because it had two bedrooms and to make difficulties for the landlord in connection with no 6 until the works were done which she hoped would be done but which they had not undertaken to do. The following factors in my judgment are to be taken into consideration: (1)   Between February and August 1987 no 6 was available but she never lifted a finger to go back. (2)   It was quite clear that the landlords were not intending to do the works that she hoped would be done; and in later correspondence her solicitors did not appear to have much faith in their contention that the landlords had entered into a binding agreement to do these works. (3)   Although she wanted to stay in no 5 as long as she could I am satisfied that if she could not stay in no 5 she intended to return to no 6 albeit reluctantly. Mr Strutt makes the point that the service of the Notice to Quit amounts to recognition that there was a contractual tenancy in existence and all the Court has to look at is the state of affairs as at the day of expiry of the Notice to Quit on August 14 1987 and that the defendant was indicating in July and August that she would return to no 6 in that she was asking the landlords to bear the removal costs of the move from no 5 back into no 6 and was asking for a further two months in which to redecorate no 6 and doing her best to put off the evil day as long as possible. I hold that that is not a good point. I have to look at the case as a whole. I am entitled to look at the period between February and August to decide whether there is evidence sufficient in quality to show if she had a genuine intention to return. That is a difficult question. On balance my conclusion is that her failure to return to no 6 when it was available to her was such to drive me to the conclusion that she did not retain her statutory tenancy if already a statutory tenant or if a contractual tenant, she was not entitled to a statutory tenancy on the expiry of the notice to quit. Without making any finding as to which footing represented the true facts, the learned judge thus dealt with the case on the alternative footings that immediately before August 15 1987 when the notice to quit expired Mrs Kaye was either, on the one hand, a protected contractual tenant of no 6 or, on the other hand, a statutory tenant. As his first line of argument, in opening this appeal on behalf of Mrs Kaye, Mr Cakebread, who did not appear in the court below, submitted that immediately before August 15 1987 she was indeed a protected contractual tenant of no 6. The notice to quit served on her by the landlord in his submission constituted a recognition by the landlord that she was a tenant; and her absence from the property during the period from October 1986 to mid-August 1987 could not have affected her rights as a protected contractual tenant. On August 15 1987 when the notice to quit expired, so the argument ran, she became the statutory tenant of no 6 for the first time. However, it was suggested, it could not be said that either on that or on any subsequent day she ceased to occupy no 6 for the purpose of the Rent Acts in as much as the changing of the locks by the landlord rendered it physically impossible for her to re-enter the premises. I do not, for my part, think it would be right to allow Mrs Kaye to rely on this point, based on the assertion of a protected contractual tenancy. In paras 1 and 5 of her particulars of claim in her own action in the county court she had specifically pleaded that she held no 6 under a ‘statutory tenancy’. In my judgment, the only reasonable meaning to attach to this pleading is the assertion that she was holding as a statutory tenant in the sense in which that expression was used in section 2 of the Rent Act 1977. By necessary implication her pleading to my mind involved an admission and an assertion that any protected contractual tenancy which had previously existed in respect of no 6 had come to an end. In my judgment, the landlord and its legal advisers were entitled to read Mrs Kaye’s pleading in this manner and were entitled to come to trial before the county court, as they no doubt did, in the belief that it was common ground that her tenancy was a statutory one rather than a protected contractual tenancy. We have been told by Miss Gill, who appeared on behalf of the landlord at the trial, that the suggestion that the tenancy was a contractual one was not explored in evidence, and indeed the terms of the tenancy were not explored in evidence at all, but the point was raised for the first time in the final speech of Mrs Kaye’s counsel. She told us that the judge then indicated that he required no argument from Miss Gill on the point. I do not think in all the circumstances it would be right for us to place any reliance on it. Possibly the situation might have been different if the form of the notice to quit could be said to have raised an obvious estoppel against the landlord, but Mr Cakebread has not felt able to advance any submission as high as this. I thus proceed on the basis that Mrs Kaye’s tenancy has at all material times been a statutory tenancy. Viewed in this light the issues in the case, in my view, become fairly clear cut. There can be no question of Mrs Kaye’s statutory tenancy of no 6 having come to an end during the period from October 1986 to February 23 1987, while she was temporarily living in no 5 at the request of the landlord and for its convenience. However, on or about February 23 1987 she became well aware that no 6 was ready for her return and that the landlord was willing that she should return to those premises. This opportunity to return to no 6 remained open to her from February 23 1987 until August 14 1987, but she never availed herself of the opportunity. In these circumstances the question arises whether she can none the less still claim the protection of the Rent Acts as a statutory tenant. It is, as I have already mentioned, a long-established principle that a non-occupying tenant prima facie forfeits his status as a statutory tenant. Indeed the wording of section 2(1) of the 1977 Act shows that the protection afforded to a statutory tenant thereby continues only ‘if and so long as he occupies the dwelling-house as his residence’. However, as Asquith LJ pointed out when delivering the judgment of the court in Brown v Brash [1948] 2 KB 247 at p 254, a tenant clearly cannot automatically lose his status as statutory tenant merely because he absents himself from the demised premises for however short a time or however necessary a purpose or with whatsoever intention as regards returning. The question must be one of fact and degree. The relevant principles governing the situation, derived largely from that same judgment in Brown v Brash, are in my judgment accurately set out in Hill and Redman’s Law of Landlord and Tenant (18th ed) vol 1 at p C 124 as follows: (1)  it is a matter of fact and degree as to whether the absence is sufficiently long or continuous as to raise the inference that occupation as a residence has ceased; if the period of absence is relatively brief, the burden of proof that occupation as a residence has ceased lies on the landlord . . .; (2)  if that inference is raised on the facts the onus is then on the tenant to show that his residence has not ceased; (3)  the tenant may show this by establishing a de facto intention to return after his absence, the animus revertendi or possidendi; (4)  in addition the tenant must show some formal, visible and outward sign of his intention, a corpus possessionis, eg possession by a caretaker or relative, or leaving furniture on the premises, but not just as a convenient storage place for it . . .; 130 (5)  if that corpus possessionis ceases, as by a caretaker leaving, so the tenant ceases to occupy as his residence. As to the first of these five principles, Asquith LJ put the matter thus at p 254 of the report of his judgment in Brown v Brash: . . . absence may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of a cesser of possession or occupation. I feel no doubt that Mrs Kaye’s absence from no 6 during the period from February 23 to August 14 1987, when the flat was available for occupation and when she was living very nearby, was sufficiently prolonged to raise at least the inference that her occupation of no 6 as a residence had ceased and to place on her the onus of showing the contrary. Mr Cakebread, in an able argument on her behalf, has submitted that the evidence and the findings of the learned judge do indeed show the contrary. He has placed particular reliance on the finding of the judge which I have already quoted from p 3 of his judgment: Although she wanted to stay in no 5 as long as she could I am satisfied that if she could not stay in no 5 she intended to return to no 6 albeit reluctantly. However, this finding has to be read in conjunction with an earlier finding on the same page, where the judge had said: I am satisfied that Mrs Kaye’s state of mind was that she wanted to stay as long as she could in no 5 because it had two bedrooms and to make difficulties for the landlord in connection with no 6 until the works were done which she hoped would be done but which they had not undertaken to do. There is no evidence to suggest that Mrs Kaye had the definite intention to return to flat 6 at any time between February 1987 and August 14 1987 if she could not eventually persuade the landlord to do the requested work to no 6. The judge’s notes record her as saying in the course of cross-examination: ‘I would only go back to no 6 if the work were done.’  Mr Cakebread pointed out, fairly and rightly, that it is not clear to what point of time this answer was directed. He also submitted that as a matter of inference she surely must have had the intention to go back to no 6 in the last resort, because, so far as the evidence shows, she would have had no other home to go to. But in my judgment no such inference can be drawn from the evidence before us. Her attitude up to August 14, which I think is the relevant period, seems to me to denote at all material times nothing more than a conditional intention to return. It is a matter for pure speculation as to what she might have intended if those conditions had not been fulfilled. The judge clearly did not regard her as having formed an unconditional intention to return and I do not think there is any evidence on which we could make a finding that she had. In my judgment, the proper inference to draw from the judge’s findings, which I have quoted from p 3 of his judgment, and from the totality of the evidence before us is that Mrs Kaye, during the material period between February and August 1987, had a conditional intention to return to no 6 if she could not persuade the landlord to give her a tenancy of no 5 but could persuade it to do the requested work to no 6. It is true that the correspondence before us indicates that by October 1 1987 her intention as expressed through her solicitors had become an unqualified intention to return to no 6, if she were allowed to do so. But that, in my judgment, was too late to avail her. It throws no light on her intentions at an earlier date. We have therefore, in my view, to consider the position on the footing that throughout the relevant period (February to August) her intention was of the conditional nature to which I have referred. Mr Cakebread has referred us to three cases where what might likewise be described as a conditional intention to return to tenanted premises was held to suffice to enable a person to claim that he still enjoyed the protection of the Rent Acts as a statutory tenant. The first of these cases was Leslie & Co Ltd v Cumming [1926] 2 KB 417. According to the facts as there found by the county court judge (see at p 418) the defendant in that case, owing to his bad health, had left London, where the premises were situated, for Glasgow some three years before the proceedings were instituted to go to a home or institution. Thereafter he was not physically present in the flat, but his furniture remained there and his daughters resided there. There was evidence that if his health improved he intended to return. On these facts Roche J (at p 421) held that there was evidence on which the county court judge was entitled to find, as he did find, that the defendant was in possession of the premises at the material time for the purpose of the Rent Acts. Another decision to the like effect and on rather similar facts was Wigley v Leigh [1950] 2 KB 305. Bucknill LJ, in summarising the reasons for his decision in favour of the tenant, said (at p 309): In my opinion there is no doubt that the tenant and her husband were regarding the house as their home, and that they intended to go there when the tenant is well enough to do so. With regard to the advice of her medical men, ‘that she should not return to the premises permanently until her health further improved or living conditions in England sufficiently improved,’ there does not seem to me any reason to suppose that her health will not improve, and I hope that there is no reason for saying that living conditions in England will not improve in the future . . . That is the position, and in those circumstances it seems to me that the wife is in occupation of this house because she has clearly the intention to return. That intention is not unreasonable, and there is no sufficient reason to suppose that she will not return within a reasonable time. The third case on the same lines was Tickner v Hearn [1960] 1 WLR 1406. In that case Ormrod LJ, delivering the first judgment in this court, having referred to the dictum of Asquith LJ in Brown v Brash to the effect that ‘the question is one of ‘fact and degree’, said: I think there must be evidence of something more than a vague wish to return. It must be a real hope coupled with the practicable possibility of its fulfilment within a reasonable time. Now the present case, to my mind, falls into a very different category from the three which I have last cited. As I have already indicated, I am quite prepared to accept that during the period February to August 1987 Mrs Kay did have the intention to return to no 6 if she could not persuade the landlord to give her a tenancy of no 5 but if she could persuade it to do the desired work at no 6. I do not, however, think that, on the evidence, her intentions during the relevant period can be stated more favourably to her case than that. It is, as I have said more than once already, a question of fact and degree. In my judgment, the contingencies attached to her intention during the relevant period were far too remote to render it a sufficient animus revertendi to enable her to retain the protection of the Rent Acts as statutory tenant within the authorities, notwithstanding her failure to return to no 6 during the period February to August 1987. During that period the landlord never evinced any willingness to negotiate with her over the requests or demands which she was making. It never gave her any reason to suppose that either of her alternative hopes or expectations would be fulfilled. She had no good or solid grounds for thinking that either of her alternative demands would be met. The judge firmly rejected her later contention that Mr Sanders on behalf of the landlord had contractually bound the landlord to do the work. Furthermore, the passages which I have quoted from the judge’s judgment show that in his view Mrs Kaye never really thought that Mr Sanders had entered into a binding commitment to do the work. The demands or requests she was making were ones which she had no right to make and in my judgment she had no legitimate or reasonable expectation that they would be complied with. Following the test expounded by Ormrod LJ as the correct one in Tickner, I can see here no sufficient evidence of a real hope that Mrs Kaye’s demands concerning the work to be done at no 6 would ever be met or that the conditions attached to her intention would ever be fulfilled by the landlord within a reasonable time. To quote the words of Somervell LJ in another case to which we were referred, Cove v Flick [1954] 2 All ER 441 at p 442: . . . those possibilities of returning are so contingent that they do not take the case out of the Skinner v Geary principle. As Miss Gill pointed out on behalf of the landlord, the question whether during the relevant period Mrs Kaye had a sufficient animus revertendi to entitle her to claim protection as a statutory tenant was ultimately a question of fact for the judge. She referred us to a number of authorities for the proposition (not a surprising one) that, in cases such as this if the judge in the court below appears properly to have directed himself, this court will usually have no justification for interfering with his decision on this matter of fact. She referred us in this context to the decisions in Dixon v Tommis [1952] 1 All ER 725; Hallwood Estates Ltd v Flack (1950) 66 TLR (pt 2) 368; and the much more recent decision in Duke v Porter (1986) 19 HRL 1.* *Editor’s note: Also reported at [1986] 2 EGLR 101; (1986) 280 EG 633. Mr Cakebread, for all his forceful argument, has failed to satisfy me that the judge misdirected himself on this question in any material respect or that there are sufficient grounds for us to interfere with his decision. Mrs Kaye may, I think, deserve some sympathy because of the problems confronting her in providing suitable accommodation for herself and her son. But in my judgment she lost the protection of the Rent Acts as statutory tenant during the period February to August 1987, by rejecting the opportunity which was offered to her to131 retake occupation of no 6 when it was available to her, and without having or at least without demonstrating a sufficiently firm intention to resume such occupation in the future. For these reasons, I would dismiss this appeal. Agreeing, HOLLINGS J said: I would add that I have not found it an easy case to decide, particularly since, as Mr Cakebread has pointed out in his able submissions, in this case, unlike the other cases to which Slade LJ has referred (Cove v Flick, Wigley v Leigh, Leslie & Co Ltd v Cumming, Tickner v Hearn), the former tenant, if I may so describe the appellant, does not apparently, or did not at the time, have other accommodation to live in, other than, of course, the apartment no 5. In all the other cases which have been quoted the defendant tenant was living elsewhere, either in another house or in hospital. But even taking into account that possible distinction, I am bound to agree that, as at the material time, that is August 15, the learned judge was right in holding that the appellant had not shown her intention to return to no 6 and that at that time she had, in accordance with the principle which Slade LJ has referred to as ‘Skinner v Geary’, in effect abandoned possession and lost her protection of the Rent Acts. The appeal was dismissed with the usual order nisi for costs against the appellant in favour of the respondents against the legal aid fund. The appellant was given liberty to apply for a stay of the possession order within the next 28 days on notice to the respondents’ solicitors.