Brown v Draper
| Jurisdiction | England & Wales |
| Date | 1944 |
| Court | Court of Appeal |
Landlord and tenant - Rent restriction - Dwelling house - Husband the tenant - Matrimonial dispute - Husband leaves house - Wife and child remain in occupation, with husband's furniture - Notice to husband to quit - Payment of rent stopped - No claim by husband to remain in possession - Landlord's right to possession as against wife.
A husband was the tenant of a house on weekly tenancy, and would, in the event of the tenancy being determined, be entitled to the protection of the Rent Restrictions Acts. After occupying the house for some months he left it owing to disputes with his wife, but he left his wife and child in occupation of the house, with the use of his furniture, and continued to pay the rent. Having received notice to quit, the husband stopped paying the rent, but he did not revoke his leave to the wife to reside in the house, nor did he remove his furniture. The landlord later brought proceedings against the wife for trespass, and at the hearing, the husband, who was not made a party to the proceedings, gave evidence that he had no interest in the house:—
Held, (1.) that the husband was still in possession of the house; (2.) that the only way he could be deprived of the protection of the Rent Restrictions Acts was (a) by his going out of possession or (b) by his having an order for recovery of possession made against him; (3.) that he could not contract to give up his right to claim the protection of the Acts, and could still less give it up by a statement of his wishes or intentions; and (4.) that the landlord could not obtain possession of the house without making the husband a party to the action. The wife's possession must be regarded as that of the husband and could not be treated as unlawful so long as the husband had the right to claim the protection of the Acts. The protection of the Rent Restriction Acts extended to protect a licensee of the tenant.
APPEAL from Burton-on-Trent county court.
In 1941 the plaintiff, William Brown, let a house in Linton Road, Castle Cresley, Derbyshire, to Joseph Draper (“the husband”) on a weekly tenancy at a rent of 12s. a week. The husband resided at the house with his wife, the defendant, Hilda Draper, and his child until a matrimonial dispute arose which caused him to leave the house in April, 1942. He left his wife and child in occupation, with the use of his furniture, and he continued to pay the rent. Divorce proceedings were commenced in October, 1942. In March, 1943, the plaintiff found the garden of the house overgrown, and, on ascertaining that the husband was no longer living in the house, he gave him formal notice to quite terminating April 5, 1943. From that date the husband ceased to pay the rent, but took no steps to revoke the permission to his wife to continue to live in the house, nor did he remove any of his furniture. In these circumstances the plaintiff began proceedings in the county court against the wife for possession of the house. He did not make the husband a party, and at the hearing the husband gave evidence that, after the expiry of the notice to quit, he had ceased to pay rent, and that he had no further claim on the house. When the wife had applied for alimony in the divorce proceedings he had stated that his wife and son were in the house for which he was paying the rent and that they had the use of his furniture. He now said that, if his wife took care of the furniture, she could continue to have the use of it, and that he would pay the rent of any house she moved to. The wife said she did not claim to be the tenant of the house, but wished to go on living there. The county court judge said that he could not accept the contention that the Rent Restrictions Acts were intended to protect not only the statutory tenant but also his wife and children, and that he ought to restrain the...
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Collins v Claughton
...County Court and before us has been laid upon passages in the Judgment of the Court delivered by Lord Greene, Master of the Rolls, in Brown v. Draper, 1944, 1 King's Bench, p. 309, especially the following at page 313: "A tenant remaining in possession cannot lawfully contract not to avail ......
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United Overseas Bank Ltd v Sin Bian Sea Transport
...below, the trial judge was right in refusing to make an order for possession against the defendant: at [5], [6] and [11]. Brown v Draper [1944] KB 309; [1944] 1 All ER 246 (folld) Chartered Bank (Malaya) Trustee Ltd v Abu Bakar [1957] MLJ 40 (distd) Kassim bin Adam v Bandukwala GE [1958] ML......