Camden London Borough Council v Goldenberg
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
NOURSE, MCCOWAN AND THORPE, L JJ
Property – succession – secure tenancy – prior to being placed in nursing home grandmother executes deed of assignment of interest in local authority accommodation in favour of grandson – local authority objects to assignment being valid, objects to grandson succeeding to tenancy, and commences possession proceedings – Judge decides that grandson did not succeed to tenancy – whether Judge correct.
In April 1983 the local authority granted a tenancy to the appellant's grandmother ("the grandmother").
In 1985 the appellant ("the grandson") arrived in England from Israel and started living with the grandmother.
Between November 1989 and April 1991 the grandson returned to Israel. However, upon returning to England in April 1991, the grandson recommenced living with the grandmother.
In February 1992 the grandson went through a ceremony of marriage; and following the ceremony of marriage the grandson and the grandson's wife were asked and did house-sit for some friends. It was the grandson and the grandson's wife's intention to remain living together; however, upon the conclusion of the house-sit, the grandson and the grandson's wife separated principally because they could not afford to purchase accommodation for both of them. Upon separation the grandson returned to live with the grandmother.
In November 1992, upon being moved into a nursing home, the grandmother assigned all interest in the local authority's accommodation to the grandson by means of a deed of assignment.
In May 1993 possession proceedings were commenced by the local authority as the local authority did not accept that the assignment was valid and believed that the grandson was in the property without a licence or the local authority's consent.
Having heard the evidence the Judge decided that there had been a failure to establish that the grandson had satisfied the conditions set out in s 87 of the Housing Act 1985, namely, that the grandson had resided with the grandmother continually throughout a period of 12 months prior to leaving the accommodation.
The grandson appealed.
Held – allowing the appeal (McCowan, LJ dissenting): (1) A period of absence from a property did not necessarily break the continuity of residence. In order to determine whether or not the grandson's departure from the grandmother's property did break the continuity of residence, regard had to be had first, to the nature and extent of the continuing connexion with the property in dispute throughout the period of absence and
secondly, the quality of the intention to return to the property.
(2) There was no break in the continuity of the grandson's residence as throughout the period of absence the grandmother's property remained the grandson's postal address and the grandson's possessions remained at the property. The grandson's marriage did not have a bearing to a material degree on the evaluation of the grandson's intention to return to the grandmother's property. The grandson's intention to return to the grandmother's property, unless suitable alternative accommodation was found for the grandson and the grandson's wife, was a distant prospect which never materialized and served to qualify and not displace the intention to return.
Statutory provisions referred to:County Courts Act 1959, ss 109 and 110.
County Courts Act 1984, s 77(1).
Housing Act 1985, ss 87(a) and (b), 88 and 91(3)(c).
Cases referred to in judgment:Brickfield Properties v Hughes (1988) 20 HLR 108.
Crawley Borough Council v Sawyer (1988) 20 HLR 98; (1987) 86 LGR 629.
Edwards (Inspector of Taxes) v Bairstow and Another [1956] AC 14.
Governors of the Peabody Donation Fund v Grant (1982) 6 HLR 41.
Hedgedale Ltd v Hards (1991) 23 HLR 1558.
Hildebrand v Moon (1990) 22 HLR 1.
Middleton v Bull (1951) 2 TLR 1010.
Morgan v Murch [1970] 2 All ER 100; [1970] 1 WLR 778.
Decision of Judge Zucker, QC, sitting at the Central London county court reversed.
Geraldine More O'Ferrall for the grandson.
Christopher Walker for the local authority.
LORD JUSTICE THORPE.This is an appeal from the judgment of His Honour Judge Zucker given on 29 November 1994 in an action between the London Borough of Camden and the appellant, Adam Bloom. The case concerned a tenancy of premises at 9 Nalton House, Hillgrove Road, London NW6 granted by the council to the defendant's grandmother. The issue in the case was whether the appellant had succeeded his grandmother as a secure tenant of the premises by virtue of the operation of ss 87 and 91(3)(c) of the Housing Act 1985.
There is no great dispute as to the history. On 4 April 1983 the council granted the tenancy to the appellant's grandmother, Mrs Goldenberg. The premises consist of a one-bedroom flat with living room and the usual offices in a block of flats reserved for elderly people. In 1985 the appellant arrived in England from Israel and moved in with his grandmother. Between November 1989 and April 1991 he again lived in Israel. However, on his return in April 1991 he continued to live with his grandmother. By about that date he had formed a relationship with Raya Cohen and it was their desire to live together in a home of their own. However, they had not the means to do so. The appellant was employed as a salesman at a modest salary. Raya was studying to qualify as an osteopath. Subsequently, the wages clerk or the accountant responsible for the appellant's wage packet suggested
that were he married his net salary after deductions would increase by £50.00 per month. For the sake of that sum, which in the scale of their economy was significant, the appellant and Raya Cohen went through a ceremony of marriage on 22 February 1992. They regarded it as a prelude to a full-scale family wedding which was planned to take place in Israel in the following year. At that time friends had left for a holiday in New Zealand and their house was available until their friends returned from New Zealand on a date towards the end of April or the beginning of May. When the appellant left his grandmother's flat to live with Raya in Bounds Green his brother Julian took his place at the flat. There was no doubt that the house-sitting arrangement had to end on the owner's return but it was clearly the intention of the appellant and Raya to move to some other independent accommodation if it could be found. In the transcript of evidence at p 12 there is the following exchange between the Judge and the appellant:
Judge: |
"If you found somewhere suitable you would have continued to live with your wife after the beginning of May 1992?" |
Appellant: |
"Oh, most definitely." |
On the other hand the young couple faced great practical difficulties. At p 5 of the transcript...
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