Sefton Holdings Ltd v Cairns

Rent Act 1977 — Second succession to tenancy on death — Meaning of ‘member of the first successor’s family’ in Sched 1, para 7 — Claim by lady, now aged 70, who had lived with the family since 1941 when she was 23, rejected; and appeal by landlords against decision of county court judge in favour of claim allowed — Respondent claimant had come to live with the family, then consisting of a father, mother and daughter, in 1941 after both her own parents had died and her boy friend had been killed in the war — The daughter of the family became the first statutory successor to the tenancy on her father’s death in 1965 — When the daughter died in 1986 the landlords sought possession of the dwelling-house and the respondent claimed to be entitled to remain as second statutory successor — She had continued to live in the house for some 45 years, being treated by the parents as a daughter and by the first successor as a sister — The question was whether she was a member of the first successor’s family within the meaning of the statutory provision as the county court judge had held — It was pointed out by the Court of Appeal that ‘family’ had to be given its ordinary everyday meaning — There was a distinction between being a member of the family and being a member of the household — There was also a distinction between being a member of the family and living as, or being treated as, a member of the family — The principles applicable had been stated in Rose v Collins and had been applied in Joram Developments Ltd v Sharratt — The suggestion that the respondent became a member of the family by adoption could not be sustained — Adoption must be de jure or de facto and applies to a minor, not an adult; in any case in the present context ‘family’ meant the family of the first successor — Held, although the court sympathised with the respondent’s position, that the judge had been in error in deciding that she was a member of the first successor’s family — Appeal by landlords allowed The following cases are referred to in this report. Brock v Wollams [1949] 2 KB 388; [1949] 1 All ER 715, CA Joram Developments Ltd v Sharratt [1979] 1 WLR 928; [1979] 2 All ER 1084; sub nom Carega Properties SA v Sharratt (1979) 39 P & CR 76; [1979] EGD 514; 252 EG 163, HL Ross v Collins [1964] 1 WLR 425; [1964] 1 All ER 861, CA This was an appeal by Sefton Holdings Ltd, the landlords, from the decision of Judge Downey, at Liverpool County Court, holding that the defendant (the present respondent), Miss Florence Cairns, was the statutory tenant of 49 Cherry Avenue, Liverpool, by virtue of para 7 of Sched 1 to the Rent Act 1977. Miss Bernadette Goodman (instructed by Redferns, agents for R H Vyner-Brooks & Co, of Liverpool) appeared on behalf of the appellants; Miss Linda Pearce (instructed by Ashby Cornforth & Co, of Liverpool) represented the respondent. Giving judgment, LLOYD LJ said: This is an appeal from a decision of Her Honour Judge Downey sitting in the Liverpool County Court on August 11 1987. It concerns a house at 49 Cherry Avenue, Liverpool. The question is whether the defendant, Miss Florence Cairns, is entitled to protection under the Rent Acts, that is to say, whether she is a statutory tenant under section 2 of the Rent Act 1977. The answer depends on the meaning to be given to the word ‘family’ in para 7 of Part I of Schedule 1 to that Act. The facts are that the plaintiffs, Sefton Holdings Ltd, are the landlords of the premises in question. They let it to a Mr Richard Gamble some time between 1939 and 1941 when the house was built. Mr Gamble died in 1965. His daughter, Ada, then succeeded to the tenancy. Miss Ada Gamble died in 1986. The defendant came to live with Mr and Mrs Gamble and their daughter Ada in 1941. She was then 23 and single. Both her parents had died. Her boyfriend had just been killed in the war. Miss Ada Gamble asked her parents if they would take the defendant in, which they did. They treated her as their own daughter. She called them ‘Mom and Pop’. She has lived in the same house ever since. She is now some 70 years of age. On June 6 1986, shortly after Miss Ada Gamble died, the plaintiffs served on the defendant a notice to quit. The defendant claims that she is entitled to remain on in the house as a statutory tenant under para 7 of Part I of Schedule 1, which provides: Where paragraph 6 above does not apply but a person who was a member of the first successor’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence. Miss Ada Gamble was the first successor within the meaning of that paragraph. So what we have to decide in this case is whether the defendant is a member of her family who was residing with her at the time of, and for the period of six months immediately before, her death. The defendant was clearly residing with Miss Ada Gamble at the time of Miss Ada Gamble’s death. But was she a member of Miss Ada Gamble’s family?  That is the question. The county court judge has decided that she was, and there is now an appeal to this court. No court could help feeling sympathy for an elderly lady of 70 who is in danger of being turned out of the house in which she has lived for nearly 50 years. But it goes without saying that we have to put sympathy on one side and apply the law to the best of our ability. It has been held over and over again that, in deciding whether a person is a member of another person’s family, we must give the word ‘family’ its ordinary everyday meaning. We cannot extend that meaning in order to cover what might appear to be a hard case; we must not let affection press upon judgment. If the judge has given the word too wide a meaning, then she has erred in law and we are obliged in this court to correct her, however much we might like to agree. We have been referred to a number of cases as to what is meant by saying that a person is a member of another person’s family. The cases go back at least 60 years. Not all the cases are, at first sight at any rate, easy to reconcile. That may be because, as has been suggested, the meaning of the word ‘family’ has broadened over the years. But we do not have to go into that question now. The most useful passage from among the decided cases is to be found in the judgment of Russell LJ in the case of Ross v Collins [1964] 1 WLR 425 at p 432. In that case Russell LJ said: 100 Granted that ‘family’ is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man — where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is ‘step-‘, or where the link is ‘in-law’ or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed by recognised as familial links by the ordinary man. That passage was expressly approved and adopted by Lord Diplock giving the leading speech in the House of Lords in Joram Developments Ltd v Sharratt [1979] 1 WLR 928. It seems to me that the facts of the present case are covered by the principle stated by Russell LJ. I have no doubt that the defendant and Miss Ada Gamble did regard each other as sisters and may well have called each other such. There is evidence, to which I have already referred, that the defendant called Mr and Mrs Gamble ‘Mom and Pop’. But the fact remains that when the defendant was taken in nearly 50 years ago she was taken in, to use the language of Russell LJ, as a stranger; and however long she may have lived with the family and however kindly they may have treated her, and however close their friendship may have become, the defendant did not, and in my judgment could not have, become a member of Ada’s family. As Miss Goodman put it in the course of the argument, length of residence cannot transform a resident into a member of the family. Miss Pearce, in seeking to support the judge’s judgment, argued that the defendant at any rate became a member of Mr and Mrs Gamble’s family by adoption. If she had, then she would have been within the protection of the Act. For it has been held by this court in the case of Brock v Wollams [1949] 2 KB 388 that de facto adoption is good enough to make a child a member of the family in question. But there are two difficulties with that argument. In the first place, the section requires us to ask whether the defendant was a member of Miss Ada Gamble’s family, not the family of her parents. Even if we could surmount that difficulty, there is a second difficulty. There is no case which has been drawn to our attention in which the courts have held that the protection of the Rent Acts covers the adoption of an adult (if such a concept is possible). It will be noted that in the passage I have read from Russell LJ’s judgment he refers to the adoption of a minor; and Lord Diplock (at p 929) refers to ‘adoption (de jure or de facto) during minority’. Miss Pearce sought to distinguish Ross v Collins and Joram Developments v Sharratt from the present case. She submits that in those cases a young person went to live with an older person and gradually took over the running of the house; here, by contrast, a young person, an orphan, was taken in by the family as a whole. It was not a case, says Miss Pearce, of one adult taking in another. The relationship therefore had, so she submits, the necessary quality to make it a familial relationship. Mr and Mrs Gamble should be treated as being in loco parentis. I would, as I have said already, like to accept Miss Pearce’s distinction if I could find a way of doing so. I agree that there are factual differences between the cases. There always are. But our approach should be the same as that laid down by Russell LJ and adopted by Lord Diplock. No case has gone as far as Miss Pearce would like us to go in the present case. The defendant was 23 when she came to live with Mr and Mrs Gamble and their daughter. It cannot be said that she was brought up as an adopted child of the family. It may be that things were different in 1941 from what they are now. But, if I ask myself the question whether the defendant became a member of Mr and Mrs Gamble’s family (if that be the right question) by adoption, whether de facto or de jure, I am in all honesty compelled to answer that question ‘No’. Various attempts have been made by the courts from time to time to define the word ‘family’, by identifying various categories within which a person would be a member of another person’s family. But Lord Diplock did not embark on that task in Joram Developments v Sharratt, and I do not propose to embark on that task myself. All I would say is that, in approaching this case, I have found it useful to bear two matters in mind. First, there is the distinction drawn by Viscount Dilhorne in Joram Developments v Sharratt between being a member of the family and being a member of the household. Second, there is the distinction between being a member of the family and living as a member of the family. There is no doubt that the defendant lived as a member of the family and that may be why the judge decided this case in her favour. But the question we have to ask ourselves is not whether she lived as a member of the family but whether she was a member of the family. I am clear that she was not and that the man in the street would take the same view. We should in this court be slow to reverse a county court judge on a matter of this kind. But, for the reasons which I have attempted to give, I for my part feel compelled to allow this appeal. Agreeing, ‘with some feeling of regret’, SIR ROUALEYN CUMMING-BRUCE said: I have been aided by the guidance given by Lord Dilhorne in the speech to which Lloyd LJ has referred. It seems to me clear beyond a peradventure that the plaintiff in this case became a member of the household of Mr and Mrs Gamble and, in spite of her age of 23, was offered and accepted a high degree of kindness and support which led the learned judge to make the finding that she reminded herself that in 1941 young women of 23 did not by and large live in the independent way that so many young women do today. Mr and Mrs Gamble were giving her a home and they took her in as a daughter and in every way treated her as such. Like Lloyd LJ, it is with diffidence that I am moved to differ from the view of a learned county court judge familiar with the local circumstances of the Liverpool environment; but the question is a question of law, although, like all questions of law, it involves a nice appreciation of the relevant facts. Throughout the now mounting line of cases which deal with the meaning of the word ‘family’ in the context of the relevant schedule it is to be observed that in no case has the court found it possible to identify the necessary ingredient or quality that distinguishes a familial nexus from a nexus less than familial. The approach of the courts has been to look at all the circumstances and then to seek to answer the question: what would an ordinary person characterise the relationship as?  For the reasons explained by Lord Dilhorne, I do not myself think that, putting the test in that way (accepting that it has been so frequently), it really adds very much to the question: what is the ordinary meaning of someone being a member of somebody else’s family?  To be a member of a family is different from being treated as a member of the family. I would hold that the judge was wrong as a matter of law and that, like Lloyd LJ, the appeal should be allowed. The appeal was allowed; legal aid taxation of respondent’s costs ordered. Leave to appeal to the House of Lords refused but stay granted pending the petition for leave. Directions given in regard to possession.