Dinos Potsos and Another (Respondents (Plaintiffs) v George Theodotou (Appellant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE STAUGHTON,SIR GEORGE WALLER |
| Judgment Date | 03 April 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0321-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 1991 |
| Docket Number | 91/0257 |
[1991] EWCA Civ J0321-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EDMONTON COUNTY COURT
(His Honour Judge Beddard)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Staughton
and
Sir George Waller
91/0257
The Respondents (Plaintiffs) appeared in person.
MR. DAVID NEUBERGER Q.C. and MR. ANDREW KEOGH (instructed by Messrs Trayman & Co.) appeared on behalf of the Appellant (Defendant).
On 26th October 1990 His Honour Judge Beddard at Wood Green County Court Trial Centre gave judgment against the appellant for possession of premises of which the respondents, Mr. and Mrs. Potsos, are owners and of which the appellant was at that time the statutory tenant. That judgment was given under Case 9 of Part 1 of Schedule 15 to the Rent Act 1977. The judgment also dealt with other matters, but we are not concerned with them. The possession order is stayed pending determination of this appeal.
The facts are agreed. The respondents were married in 1973. Paul Potsos is now aged 22. He is the son of Mrs. Potsos by a previous marriage. He is neither the natural, nor the adopted, son of Mr. Potsos. He has lived with Mr. and Mrs. Potsos since he was 18 months old. Mrs. Potsos was granted legal custody, with the father's consent, in 1971. In 1974, by agreement between Mrs. Potsos and her former husband, he took the name Potsos. Mr. Potsos wished, and was always willing, to adopt Paul, but Paul's natural father has withheld his consent, as I understand it because if he did consent, he was fearful that Mr. and Mrs. Potsos might move with Paul to Cyprus.
Case 9 of Schedule 15 provides that an order for possession of a dwelling-house subject to a statutory tenancy may be made—
"Where the dwelling-house is reasonably required by the landlord for occupation as a residence for—
(a) himself, or
(b) any son or daughter of his over 18 years of age, or
(c) his father or mother, or
(d) if the dwelling-house is let on or subject to a regulated tenancy, the father or mother of his wife or husband,
and the landlord did not become landlord by purchasing the dwelling-house or any interest therein after…"—
and then a series of dates are set out. So far as (d) is concerned it should now be read as if it said "the father or mother of his wife or husband" because, as a result of subsequent legislation, the opening words have disappeared.
That provision did not appear in the Rent Act legislation until 1965. The question to be determined is whether, where a husband and wife are joint landlords and claim possession on ground (b)—that is to say, for any son or daughter—the claim falls within that provision when the son or daughter referred to is, as here, the natural son or daughter of one only of the joint landlords and neither the natural nor the adopted son of the other. It is common ground that if, as the judge held, such a claim does fall within Case 9(b), the appeal must be dismissed, but that if it does not so fall the appeal must be allowed.
The appellants' case is a simple one. In Baker v. Lewis [1947] 1 KB 186 this court had to consider whether, under the equivalent in the Rent Act of 1933, Case 9 could be invoked in the case of joint landlords at all. It was held that it could and that the word "landlord" included "joint landlords". In the course of his judgment, however, Lord Justice Somervell looked forward somewhat and expressed, obiter, an opinion as to the position in a case where there were joint landlords and only one of them required the possession of the dwelling-house for his own occupation as a residence. He said this:
"I am not in any way implying or suggesting that this para. (h) is only applicable in the case of joint owners where they are desiring the dwelling-house for occupation as a residence for them all. I myself am inclined to take the view that it has a wider application and that it would cover the case where A, B and C, being joint owners, put forward a claim for possession, in the circumstances in which it would arise, alleging that the residence is required for occupation as a residence by A. I only mention that in case any misunderstanding should arise if anybody suggested that our decision impliedly limits the section to cases like the present where both joint owners are wishing to occupy. The other case is of course open to argument in the future."
Lord Justice Asquith, however, took a different view. He said this:
"Where there are two or more joint beneficial owners, I would incline to a construction of (h) narrower than that put forward or kept open, by my brother. In the event (i) (ii) and (iii) of (h) should, I think, be read as follows: in (i) for "himself" read "themselves"; in (ii) for "any son or daughter of his" read "any son or daughter of theirs" and in (iii) read "their father or mother". Where, read in this way, neither (i) (ii) nor (iii) has any application, such beneficial owners would fail—for instance, if they proceed under (ii) and are not a married couple with a child, or if they proceed under (iii) and have not got a parent in common; but they would fail in that case not because there are several of them or because they are not "a landlord" within the opening words of the section, but because they could not bring themselves within the language of (i), (ii) or (iii) construed in the way I suggest."
To bring that language up-to-date (i), (ii) and (iii) should be read as (a), (b) and (c) of Case 9, otherwise there is no material difference. There was not, as I have already said, at that stage, the equivalent of what is now paragraph (d) of Case 9. Those opposing views were both obiter, but in the following year in McIntyre v. Hardcastle [1948] 2 KB 82 this court had directly to consider which of the two views was correct. In that case two sisters were joint landlords and claimed on the basis that the premises were reasonably required by them as a residence for only one of them. It was held that Lord Justice Asquith's view was correct and that the claim therefore failed. That case is of course binding upon us.
Since that time the Rent Acts have been re-enacted, consolidated and amended in 1965, 1968 and 1977. Thus it is said that the judgment of the court in McIntyre has been adopted and approved by Parliament. It follows, so it is submitted, that the claim in this case must fail. Paul Potsos is not their son, he is the son only of Mrs. Potsos.
It is however clear that in neither of the two cases was the court considering the application of Case 9 except in regard to its opening words and paragraph (a) and I do not regard this court as being bound by that case on the construction of (b), (c) or (d).
Before returning to the statute itself I should mention two...
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