Chandler v Kerley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE ROSKILL |
| Judgment Date | 13 March 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0313-2 |
| Date | 13 March 1978 |
| Court | Court of Appeal (Civil Division) |
[1978] EWCA Civ J0313-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from Order of His Honour Judge McCreery - Southampton County Court)
Lord Scabman
Lord Justice Megaw and
Lord Justice Roskill
Mr. ROGER SHAWCROSS (instructed by Messrs. William Charles Crocker, Agents for Messrs. Jasper & Vincent, Southampton) appeared on behalf of the Appellant (Plaintiff).
Mr. DAVID STANSPELD (instructed by Messrs. Ewing, Hickman & Clark, Southampton) appeared on behalf of the Respondent (Defendant).
LORD SCARMAN: This appeal is concerned with the right to occupy a dwelling-house, 300 Salisbury Road, Testwood, Totton, in Hampshire. The plaintiff owns it: the defendant, with her two children, occupies it. She will not leave, because she says the plaintiff has agreed that she may stay there as long as she pleases. The plaintiff went to the Southampton County Court with a claim for possession, alleging that the defendant was a trespasser, her licence having been terminated. The defendant not only resisted the claim, but also counterclaimed for a declaration that she is a tenant for life, alternatively that "she is the beneficiary under a trust….upon terms that she is entitled to remain therein with her children for as long as she wishes". In this Court the defendant was allowed, the plaintiff not opposing, to amend her counterclaim by adding in the further alternative that she is a licensee for life, or for so long as her children remain in her custody, and the younger is of school age and so long as she does not remarry, or for a period terminable only by reasonable notice.
On the 26th May, 1977, His Honour Judge Lewis McCreery dismissed the plaintiff's claim and gave judgment for the defendant on the counterclaim, declaring that the defendant is a beneficiary under a trust upon terms that she is entitled to occupy the house for her life or for so long as she pleases. The plaintiff now appeals.
The facts are unusual. The plaintiff, Mr. Chandler, acquired the house from the defendant, Mrs. Kerley, and her husband in the following circumstances. In 1972 Mr, and Mrs. Kerley jointly bought the house for £11,000, Intending it to be their family home. The purchase was partly financed by a building society mortgage for £5,800. Mr. Kerley paid the mortgage instalments. They have two children, both of whom are now living with their mother. In 1974 the marriage broke down. In May of that year Mr. Kerley left home,not to return. However, he continued to pay the building society instalments. Mrs. Kerley and the children continued to live in the house.
At about the time Mr. Kerley left home, Mrs. Kerley met the plaintiff, Mr. Chandler. They became friends: sexual intercourse followed, and Mrs. Kerley became Mr. Chandlers mistress. This relationship continued until January, 1976, when it ended.
Early in 1975 Mr. Kerley stopped paying the building society: he said he could not afford it. He and his wife put the house on the market for £14,95O, but failed to find a buyer - even when in the autumn they reduced the asking price to £14,300, Meanwhile the building society was threatening to foreclose. Mrs. Kerley naturally told Mr, Chandler of her anxieties. He wanted to help, and said he could afford £10,000, but no more. Finally it was agreed that the Kerleys should sell the house to Mr. Chandler for that figure, and the house was sold to him in December, 1975. The net proceeds of sale, after they had paid off the debt to the building society, were divided - £1,000 to Mrs, Kerley and £1,800 to Mr. Kerley. Mrs. Kerley accepted less than her half-share because she understood Mr. Chandler was going to let her live in the house.
The arrangement between Mr. Chandler and Mrs. Kerley, which made all this possible, was, according to the judge's findings, the following. Mr. Chandler agreed to buy the house for £10,000 (a figure substantially less than the asking price) upon the understanding that Mrs. Kerley would continue to live in it indefinitely till he moved in. For at this time, that is to say 1975, they contemplated living together in the house as man and wife once they were free to do so, that is to say after a divorce between Mr. and Mrs. Kerley, She, very sensibly, did ask Mr. Chandler what would happen if they parted: he replied that he could not put her out.
Within six weeks of the purchase of the house, Mr. Chandler hadbrought their relationship to an end. It was not suggested, however, that he did so in order to get Mrs. Kerley out of the house. Nevertheless he did purport in 1976 to serve a notice terminating her licence. It was given by solicitors' letter dated the 29th April, requiring the lady to quit on the 28th May.
The judge found that Mr. Chandler had granted Mrs. Kerley an express licence and that the notice was not effectual to terminate it. There is now no challenge to these findings. Mrs. Kerley is, therefore, a licensee whose right to occupy has not yet been terminated. In so far, therefore, as the appeal is against the dismissal of the plaintiff's claim for possession, It must fail. The true dispute, however, between the parties arises on the counterclaim. There are two substantial issues:
(1)the terms of the licence; and
(2)whether the defendant has an equitable interest arising under a constructive trust; and, if so, what is the extent of the interest.
The judge's findings as to the terms of the licence are obscure. He rejected the submission made on behalf of the defendant that she had an implied licence to remain in the house all her life: yet he also held (and I quote from the notes of judgment) "that there was an express agreement between the two and, as a result, there was a constructive trust with Mr. Chandler as trustee and Mrs. Kerley being the beneficiary". It is possible, though certainly not clear to me, that the judge is here finding an express agreement that she may remain for life: for he certainly granted her a declaration that she had an equity to that effect. But, whatever the finding as to the terms of the agreement, the reasoning of the judge in this passage is, in my judgment, unsound. If the defendant can establish a licence for life, there is neither room nor need for an equitable interest. Since the fusion of law and equity, such alegal right can he protected "by injunction: see Hurst v. Picture Theatres Ltd. (1915) 1 King's Bench 1,Winter Garden Theatre Ltd. v. Millenium Productions Ltd. (1918) Appeal Gases 173, and Foster v. Robinson (1951) 1 King's Bench 149, per Lord Evershed, Master of...
To continue reading
Request your trial
-
The King on the Application of DF v Essex County Council
...whether there is a right to remain in occupation that restricts the right to recover possession under, for example, the PEA 1977. 47 In Chandler v Kerley [1978] 2 All ER 942 the court held that where the parties had intended to live as man and wife there was a contractual licence which was......
-
Dent v Dent
...Settled Estates, Re [1916] 2 Ch 404. Buck v Howarth (1947) 1 All ER 342. Carne's Settled Estates, Re [1899] 1 Ch 324. Chandler v Kerley [1978] 1 WLR 693; [1978] 2 All ER Dodsworth v Dodsworth (1973) 228 EG 1115. Gibbon v Mitchell [1990] 1 WLR 1304; [1990] 3 All ER 338. Herklot's Will Trusts......
-
Costello v Costello
...to Mr. and Mrs. James Dodsworth their expenditure on the property. 31 That case was followed by another decision of this Court in Chandler v. Kerley [1978] 1 WLR 693. The Court there consisted of Lord Scarman, Megaw and Roskill LJJ. The actual conclusion of the Court depended on the facts. ......
-
Tan Hin Leong v Lee Teck Im
...had an equitable licence. What he did find was that the respondent had a contractual licence, and we agreed.In Chandler v Kerley [1978] 2 All ER 942[1978] 1 WLR 693 at 696-697, Lord Scarman delivering the main judgment of the Court of Appeal said: If the defendant can establish a licence fo......
-
Land Law
...were available to ensure that a licence would not be wrongfully revoked against the terms of the bargain (see Chandler v Kerley[1978] 1 WLR 693 at 696—697). However, the imposition of such equitable remedies did not change the fact that, in the instant case, the licence was a contractual on......