Gay v Sheeran
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE WARD,LORD JUSTICE CHADWICK |
| Judgment Date | 22 June 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0618-11 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 1998/0828/2 |
| Date | 22 June 1999 |
[1999] EWCA Civ J0618-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EDMONTON COUNTY COURT
(HIS HONOUR JUDGE TIBBER)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Ward
Lord Justice Chadwick
CCRTF 1998/0828/2
CCRTF 1998/1020/2
MR P MORGAN QC and MISS T BLOOM (Instructed by Messrs Tyver Roxburgh, London, N8 OPX) appeared on behalf of the Appellant/Respondent Miss Gay.
MR A ARDEN QC and MISS K BERTHERTON (Instructed by The Legal Department, London Borough of Enfield, London, EN1 3XA) appeared on behalf of the Respondent/Appellant London Borough of Enfield
Friday 18 June 1999
A and B are joint tenants with a secure tenancy of a dwelling-house under the Housing Act 1985 and are cohabitants. A moves out and C moves into the dwelling house where B and C cohabit as husband and wife. B moves out of the dwelling-house. Is C entitled to seek an order transferring B's interest to her under the Family Law Act 1996 ("the 1996 Act")? Must she first obtain an occupation order? These are the main issues to which the two related appeals now before us give rise.
By the first appeal, Josephine Gay appeals from the order of His Honour Judge Tibber in the Edmonton County Court on 26 February 1998. The Judge thereby allowed the appeal of the London Borough of Enfield ("Enfield") from the order of District Judge Silverman on 15 January 1998. The District Judge had granted Miss Gay's application under s.53 of and Sch. 7 to the 1996 Act for the transfer to herself of the interest of her former cohabitant, John Sheeran, of a flat at 54 Dickens Lane, London, N.18. The Judge refused leave to appeal, and on Miss Gay's application to this court, the single Lord Justice, Mantell L.J., dealing with the application on paper also refused leave. But on a renewed application this court (Evans L.J. and Hale J.) gave leave. By the second appeal, Enfield appeals from the occupation order made by the Judge on 3 July 1998 under s.36 of the 1996 Act.
The facts
In February 1992 Mr. Sheeran and his then partner, Sharon Gunn, were granted by Enfield as landlord a joint tenancy of the flat. In October 1995 Miss Gunn moved out of the flat with her child by Mr. Sheeran. On 20 November 1995 Miss Gay moved in, and she and Mr. Sheeran lived together as husband and wife. The evidence, which the District Judge accepted, was that on 21 November 1995 she went with Mr. Sheeran to the Civic Centre of Enfield and explained the position to a man at the Reception Desk. She said that they asked for the tenancy to be put into their joint names. Mr. Sheeran handed over a letter, for which he received a receipt from a Receiving Officer on behalf of Enfield. In that letter he advised Enfield that he was commencing employment and that "Miss J Gay has now moved in from 20/11/95". That letter has not been found by Enfield. The District Judge found that the Receiving Officer would have been in Enfield's Revenue Department, which dealt with Council Tax, and that letter would not necessarily have come to the attention of the Estate Manager who dealt with housing. Council Tax bills were sent to Mr. Sheeran and Miss Gay in the following years, so that there is no doubt that Enfield's Revenue Department acted on the information given to it that day.
Miss Gunn wrote a letter dated 27 November 1995 addressed to "Dear Sir/Madam" which, from its content, must have been intended to go to Enfield. In it she said "I am writing to terminate my tenancy at [the flat]". There is no evidence that Miss Gunn sent that letter to Enfield. Miss Gay's Affidavit evidence in support of her application for an occupation order was that she and Mr. Sheeran took a copy of that letter to Enfield. Miss Gay also produced a copy letter dated 27 November 1995 from Mr. Sheeran to Enfield, in which he says that when he went to Enfield's office on 21 November 1995 "the Bloke at the Desk said he'd sent out a new Rent book as we are paying full Rent from 27 th as I have started work". (Presumably housing benefit would have ceased to be payable.) He asked Enfield to inform his girlfriend (sc.Miss Gay) about paying the rent as the old rent book had Miss Gunn's name on it. There is no evidence that Mr. Sheeran's letter was sent or taken to Enfield until Miss Gay took it on 22 October 1997. No new rent book was supplied.
On 2 April 1996 Mr. Sheeran moved out of the flat. He left a letter for Miss Gay in which he said he was not coming back. He asked her to inform Enfield. There is no evidence that she did so until 22 October 1997. She continued to occupy the flat, paying the rent and Council Tax to Enfield. She became pregnant by a man other than Mr. Sheeran. The baby, Kieran, was born prematurely in September 1997 when she gave up work. On 22 October 1997 she visited Enfield's Housing Office to claim housing benefit. According to Miss Whybrow, an Estate Officer with Enfield, who gave evidence on its behalf to the District Judge, the Housing Department then became aware of Miss Gay for the first time; it had no knowledge that Miss Gunn had ceased to reside at the flat, which in its records was still let to Miss Gunn and Mr. Sheeran.
A notice to quit dated 18 December 1997, requiring possession to be given up by 26 January 1998, and addressed to Mr. Sheeran and Miss Gunn, was sent to the flat. The basis on which that notice was issued was that Enfield believed that Mr. Sheeran and Miss Gunn were living elsewhere. Miss Gay then sought legal advice and applied for an order for the transfer to herself of Mr. Sheeran's interest. Although Mr. Sheeran was named as first respondent, his whereabouts were unknown and leave was given to dispense with service on him. The application came before the District Judge who heard evidence from Miss Gay and Miss Whybrow. The District Judge considered the evidence and the statutory provisions in the 1996 Act governing transfer orders and said:
"Having considered all the statutory criteria I have come to the conclusion that [Miss Gay] was living with [Mr. Sheeran] as husband and wife and has been honest in her approach to the Council and given the effect on her and Kieran of not making an order, I grant the application and give effect to it from the date Mr. Sheeran left to bring it within the definition of a relevant tenancy, because after Mr. Sheeran left it was not a secure tenancy. I do this in order to give her the tenancy that Mr. Sheeran had. I have to do that and Part II of Schedule 7 gives the power to the court to do so."
Enfield appealed, taking two points: first, the District Judge had no power to make his order, and, second, if he had the power, he exercised his discretion wrongly. Judge Tibber upheld Enfield's argument on the first point, because Mr. Sheeran, on his departure from the flat, ceased to be a secure tenant. He said that it was a condition for the making of the order in Miss Gay's favour that her cohabitant was entitled to occupy the flat by virtue of a secure tenancy, and a tenant out of occupation cannot be a secure tenant. The Judge therefore allowed Enfield's appeal. That is the order leave to appeal from which was granted by this court.
Miss Gay then applied on 5 January 1998 for an occupation order. She named both Mr. Sheeran and Enfield as respondents. Again service on Mr. Sheeran was dispensed with and leave was given on 6 April 1998 to serve Enfield as second respondent. That application came before Judge Tibber who described it as a long-stop application in case Miss Gay's appeal against the order of 26 February 1998 failed. The Judge said that he queried why Enfield was served as second respondent and was told that it was because Enfield had an interest as landlord. Enfield argued that Miss Gay was seeking to circumvent s.53. The Judge said that the contractual tenancy of Mr. Sheeran had not been terminated as he had not been served personally. The Judge considered the matters to which he was required under s.36 to have regard and made the occupation order for 6 months as requested. Since then, there has been an extension of the order for a further 6-month period. Miss Gay has made a further application for a transfer order.
Throughout the proceedings Enfield has accepted that the contractual tenancy of the flat has not yet been terminated because personal service of a notice to quit is required under the existing terms of the tenancy and such service has not been achieved. Nor does Enfield take any point arising from Miss Gunn's letter of 27 November 1995 notwithstanding the ability of either of two joint tenants to terminate a tenancy.
Statutory Provisions
I must now refer to the statutory provisions relevant to the appeals. Our attention was drawn by both Miss Gay and Enfield to the Law Commission's Report, Family Law: Domestic Violence and Occupation of the Family Home (1992) Law Com. No. 207, it being common ground that the 1996 Act implemented in substance the recommendations in that Report. Recommendations were made for the reform of the various discretionary remedies which existed in family law to deal with two problems, one of which was the regulation of the occupation of the family home when the relationship between two members of a family had broken down, whether temporarily or permanently. Reference is made in para. 1.2 of the Report to complaints made about the then existing civil remedies...
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