Hadjiloucas v Crean
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE MUSTILL,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 29 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0729-11 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0816 |
| Date | 29 July 1987 |
[1987] EWCA Civ J0729-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE EDMONTON COUNTY COURT
(HIS HONOUR JUDGE TIBBER)
Royal Courts of Justice,
Lord Justice Purchas
Lord Justice Mustill
and
Sir Roualeyn Cumming-Bruce
87/0816
800/86
MR. A. ARDEN and MR. T. GALLIVAN (instructed by Messrs Marcus-Barnett) appeared for the Appellant (Defendant).
MR. N.P.D. MENDOZA (instructed by Messrs Rose & Co.) appeared for the Respondent (Plaintiff).
( )
This is an appeal by Isabel Crean against a judgment of His Honour Judge Tibber given on 14th May 1986 ordering that the plaintiff, Demetricus Hadjiloucas, to whom I shall refer as "the landlord", recover possession of Flat 2, 41 Endymion Road, London N.4 ("the flat") and other relief. The appeal raises a short but important point, namely, the determination of the status of two occupiers sharing residential accommodation.
The facts are shortly stated. The landlord was at all material times the owner of 41 Endymion Road. The flat was unfurnished and comprised two rooms, a kitchen, bathroom and lavatory. The landlord's managing agent was a Mr. Stavrou. Stavrou conducted all relevant negotiations on the landlord's behalf. In November 1984 the appellant and a Miss Broderick were looking for furnished accommodation. Apart from being friends there is no evidence of any special relationship between them.
On the first meeting between Mr. Stavrou, the appellant and Miss Broderick, the appellant and Miss Broderick were shown the three flats at 41 Endymion Road and chose the ground floor one. There was some discussion as to whether they would share one room as a bedroom and have the second room as a living room or have one bedroom each and do without a living room. They chose the latter alternative; but the judge found that how they arranged the use of the rooms was of no importance to the landlord. Having chosen the flat, the parties repaired to Stavrou's office which was nearby. There were a number of different documents purporting to be licence agreements before the court. The learned judge made findings in relation to these which have not been challenged on appeal.
At the meeting in November 1984 two draft agreements were prepared in similar form for the appellant and Miss Broderick respectively which they took away to study. On 5th December the two ladies had a further meeting either with Mr. Stavrou or with his assistant, Mr. Pallos—it matters not which. On this occasion each signed their respective agreements. It is necessary to refer to some of the terms of these documents which were identical for each lady.
The document in the case of the appellant provided:—
"This licence is made the 5 day of December 1984 BETWEEN Mr. D. Hadjiloucas (hereinafter called 'the Licensor') of the one part and Miss I. Crean of 76A Turnpike Lane, London N.8 (hereinafter called 'the Licensee') WHEREBY IT IS AGREED as follows:—
1. The Licensor shall grant and the Licensee shall accept a licence to share with one others each be separately licensed by the Licensor and to the intent that the Licensee shall not have exclusive possession thereof the furnished premises known as Flat No. 2, in the property situated at and known as No. 41 Endymion Road, Harringay, London N.4 for a term of six months terminating on the 30th day of June 1985 at a calendar monthly licence rental of £260 payable on the 1st day of each month in advance but so that the total calendar monthly rent actually paid by all the Licensees of the said flat at any time shall not together exceed £260."
There then followed 18 further provisions and finally:—
"The Licensor hereby agrees with the Licensee as follows:-
That the Licensee paying the rent and performing all the agreements by the Licensee herein contained may quietly possess and enjoy the premises during the Licence without any lawful interruption from the Licensor or any person rightfully claiming under or in trust for the Licensor.
AS WITNESS the hands of the parties hereto.
(SIGNATURES)"
Inspection of the original document discloses that it is in a "proforma style" with the particular details of the individual agreement completed in manuscript. In the preceding extract I have underlined those parts which have been completed in manuscript. In particular it should be noticed that the proforma provides for sharing with one or more other so-called licensees and by appropriate deletion can provide for weekly/calendar monthly payments. In the appellant's case the word "one" is written in; but it could well have been "two" or conceivably more.
The copies of the agreement which the ladies took away after the meeting at the end of November did not provide for a monthly payment of £260 with a maximum aggregated payment in the same figure but for individual payments of £130 per month in respect of each of the two agreements together with a figure of £130 in the space relating to the total calendar monthly rent actually paid by all licensees. On 5th December these figures were erased in "Tippex" and the figures of £260 inserted. Two further "versions" of the agreement came into existence on 21st December 1984 (the appellant), and on 24th December (Miss Broderick). These were in exactly the same terms and were produced because Mr. Stavrou was anxious about the Tippex corrections on the original agreements signed on 5th December. For the purposes of this appeal these additional documents may be ignored.
In the event Miss Broderick moved in on 24th December on which occasion it is to be remembered she signed the further agreement, but the appellant did not move in until 2nd January 1985. Thereafter, the two ladies were together in the flat until Miss Broderick left after being there about two months. At the end of this time Miss Broderick told Mr. Stavrou that she was leaving and enquired "what would happen to the room". Mr. Stavrou said that he would advertise it whereupon Miss Broderick said that she had a friend who might be interested. This was a Miss Rollins. Miss Rollins was introduced to Mr. Stavrou who accepted her. Miss Rollins then signed an agreement in very similar terms to those "proforma" agreements already mentioned. Miss Rollins's agreement was dated 1st March 1985 and provided for a term of four months terminating on 30th June 1985 at a calendar monthly licence fee of £260 with a similar overall excess figure of £260. Two features are to be noticed: in the interval from the end of December 1984 a minor adjustment to the wording of the proforma document had been made. The phrase "monthly licence rental" in the earlier documents had become "monthly licence fee". Also the period of the agreement is reduced from six months to four months so as to be co-terminus with the agreements made with the appellant and Miss Broderick.
Miss Rollins remained in the flat until the end of June 1985 when all agreements expired. Towards the end of that month the appellant, together with a Miss Richards whose relationship with the appellant is not described but must be assumed to be a friend, enquired of Mr. Stavrou whether the landlord would grant a new licence on the expiry of the current agreements. Mr. Stavrou said this could be done but that the rent would be £70 instead of £60 per week. The appellant said she would not sign a further licence until she had had the rent assessed. Mr.Stavrou said that in those circumstances they (meaning Miss Rollins and the appellant) must leave on the expiry of the agreement. Miss Richards stayed on in the flat leaving on 20th September 1985 since which time the appellant has remained in the flat on her own. To complete the history, on 19th August the appellant applied to the Rent Officer who, on 5th November 1985, registered the rent at £130 per month.
The learned judge addressed his mind to the question whether the appellant was a tenant or licensee applying the criteria which he considered were to be found in the speech of Lord Templeman in Street v. Mountford [1985] AC 809. He came to the following findings:—
" Tenants or Licensees?
Counsel for the first defendant argued that Street v. Mountford [1985] 2 WLR 877 is authority for the proposition that a court is concerned only to determine whether or not an occupier of residential accommodation is a lodger; if the occupier is not a lodger, argues counsel, then Street v. Mountford says she must be a tenant. That argument seems to me to ignore that Lord Templeman's speech makes it clear that the test of tenancy is exclusive occupation: see, for example, page 891 at letter D.
The agreement in the instant case is expressed to be a licence to share the premises with another licensee to be licensed by the licensor.
Unlike the situation in Somma v. Hazlehurst [1978] 1 WLR 1014, the instant agreement was not a sham. The occupiers were two single ladies who debated whether to share a bedroom or not. They decided not to do so but to each have her own bedroom. When Miss Broderick said she was leaving, the agent said he would advertise for another occupier, but agreed to accept Miss Rollins. I have no doubt that had he advertised and found another occupier, Miss Crean would have been obliged to accept that occupier.
In Somma v. Hazlehurst the two occupiers occupied a single room in 'quasi-connubial bliss' so that a notice to quit served on one would be a disguised notice to quit served on the other. That is far from the case before me.
I deal below with the question of rent, but whether a joint rent of £260 or two single rents of £130 each was charged by the agreement, it could not affect the situation:...
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