Foreman v Beagley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE SACHS |
| Judgment Date | 03 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0703-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 1969 |
[1969] EWCA Civ J0703-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Cohen - Croydon County Court)
Lord Justice Russell
Lord Justice Sachs and
Lord Justice Fenton Atkinson
Mr. LAURENCE MARSHALL (instructed by Messrs. Kinch & Richardson, Agents for Messrs. Copley, Singleton & Billson. Croydon, Surrey) appeared on behalf of the Appellant (Defendant).
Mr. E.A. ASHLEY BRAMALL (instructed by Messrs. Ormerod, Morris & Dumont, Croydon, Surrey) appeared on behalf of the Respondent (Plaintiff).
In this appeal the appellant defendant contends that an order for possession of a basement flat was wrongly made against him because he was entitled to remain in possession as a second successor under the Rent Act, 1968, Schedule I paragraph 7.
At all material times until her death his mother was the statutory tenant of the flat as first successor to the original tenant, her husband, on the letter's death: that involves the proposition that notwithstanding her physical absence from the premises for several years in hospital until her death she was occupying the flat as her residence (see paragraph 2 of that Schedule) throughout and must for the purposes of the Act be regarded therefore as residing at the premises.
The plaintiff asserts that he was "residing with his mother at the time of and for the period of six months immediately before her death" and therefore under paragraph 7 became the statutory tenant of the flat. The relevant period was from the 6th December, 1967, to the 7th June, 1968.
From some date in 1965 to her death the mother was away in hospital except I think for one day. The son was the tenant of a council house at Aylesbury where his wife and children lived, but he had left his family several years before and in mid-1967 his wife had become the tenant in his place. The plaintiff in evidence said that after the mother went to hospital nobody came to the flat: later the defendant came: later still, about October, 1967, he appeared to be sleeping there and seemed to be taking up residence: the defendant was usually away from Thursday night to Monday night. The defendant said he started living in the flat in July, 1967, and since then had had no other home. On the 11th October, 1967, the defendant's solicitors wrote to the plaintiff's solicitors in the following terms: "We have been consulted by Mr. William John Beagley, who has handed us your letter of 9th October, written on behalf of your client Mr. A.E. Foreman. Our instructions are that Mr. Beagleyis living in the flat as his mother's licensee during the time she is in hospital, in particular in an effort to keep it clean and aired during her absence. He instructs us that your client must have misunderstood the conversation which they had, as there is no intention of Mr. Beagley giving up possession of the flat, all that our client intended to convey was that he would in due course expect to be leaving on his mother's return".
On the 16th October, 1967, the mother wrote from North Side, Queen's Hospital, to the defendant's solicitors in the following terms: "Dear Madam" (for it was addressed to a Mrs. Copley, of the solicitors' firm) "I wish my son to still live at 50 Canning Road Basement Flat for the flat was closed up for 13 months and my son found the walls running with water and scullery and kitchen floor was under water cause through Mr. Forman neglect of having repairs done so I asked my son to stay and keep the flat aired his home is in Aylesbury. P.S. The Hospital will not let me home unless I have someone to live with".
In evidence the defendant further said that if his mother had returned he would have stayed in the flat to look after her if she needed him. He also said that when he went there he had told the plaintiff that he was going to keep the place in good condition and would go when she came back if she was well enough.
From the notes of judgment it appears that the judge found that the defendant went to live there by October, 1967, and continued to live there up to his mother's death. It is perhaps uncertain whether the judge found that the defendant was in this period residing at the flat or whether he was merely prepared to assume that fact. I am prepared to assume that fact. The judge was uncertain whether the mother could be regarded as residing at the flat in this period, but I consider that it was and is rightly conceded that if she was a statutory tenant she must be regarded under this statute as so residing.
It would seem that in concluding that the defendant was not "residing with" his mother he considered that this could not be so "when she lived in hospital". Thus shortly stated this seemsto be a misdirection, and was not supported before as a proper ground for the conclusion. It is wrong to say that a tenant away at hospital cannot for that reason be "resided with". If a tenant spends the last two months of his life in hospital his widow at home would be residing with him at his death. The judge also, according to the note, said: "The whole purpose of this section is to protect the person who has made their home with an elderly relative when that person has died. I think it goes against the whole tenor of the Act to give the same rights to someone who takes advantage of an elderly relative". In so far as this may have been a ground for the decision this was not supported before us.
For the appellant it was initially contended that if for the purposes of the statute the mother was residing at the flat, and the defendant was actually residing at the flat, it necessarily followed that for the purposes of the Act the defendant was "residing with" his mother notwithstanding that they had never been physically together in the flat. This contention that "at" plus "at" must mean "with" did not stand up and was not pursued. Suppose a dwelling which could not possibly accommodate more than one person, it would clearly be wrong to say that a relation who moved in while the tenant was in hospital could be described as residing with the tenant so as to become successor and statutory tenant in respect of the dwelling when the tenant died in hospital six months later. Or suppose that on a tenant going to hospital a member...
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