Heslop v Burns

JurisdictionEngland & Wales
Judgment Date12 June 1974
Judgment citation (vLex)[1974] EWCA Civ J0612-2
CourtCourt of Appeal (Civil Division)
Date12 June 1974
John Heslop and Midland Bank Trust Company
R. Burns (Male)
J. Burns (Married Woman)

[1974] EWCA Civ J0612-2


Lord Justice Stamp

Lord Justice Roskill and

Lord Justice Scarman

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(From: His Honour Judge Wingate-Saul Lambeth County Court)

Mr. PATRICK GARLAND, Q.C. and Mr. MILES SHILLINGFORD (instructed by Messrs. Cameron, Kemm, Nordon & Co.) appeared on behalf of the Appellants (Plaintiffs).

Mr, NICHOLAS WALL (instructed by Mr. Victor J. Lissack) appeared on behalf of the Respondents (Defendants).


(without calling upon Counsel for the Appellants to reply)

Lord Justice Stamp

This is a rather unusual case. It is an appeal by the plaintiffs, who, as executors of one Edward Times, who died on the 23rd November, 1970, claim possession of a dwellinghouse known as No. 116 Warner Road, S. E. 5, from a Mr. and Mrs. Burns. The appeal is an appeal against an order of His Honour Judge WingateSaul made in the Lambeth County Court on the 24th August, 1973, refusing the plaintiffs the relief which they soughton the ground that the action was barred by the effect of the Limitation Act, 1959. It is common ground that, subject to the effect of the Limitation Act, the plaintiffs are the owners of the property. It is also common ground that the defendants have been in occupation of the property at least since 1954. The defendants' case is that at the outset they became and were tenants at will of the deceased, that no rent was ever paid, and that, by the effect of section 9 of the 1939 Act, the tenancy at will is deemed to have determined at the expiration of one year from the commencement thereof, that thereupon a right of action accrued to the deceased, and that that right of action became barred at the expiration, in 1967, of the period of twelve years, under section 4 (3) of the Act. The learned County Court judge accepted those submissions.


It is conceded by the plaintiffs in this Court that if at the outset the defendants were in truth tenants at will of the deceased, the plaintiffs' claim to the property is statutebarred. The plaintiffs, however, claim that there never was a tenancy at will and that the defendants were at the outset let into occupation of the property as mere licensees, having no legal or equitable interest in the land; and the defendants concede that if this was the true position the deceased's rights are not statutebarred. So in the end the question is: Tenancy at will, or licence?


The facts, so far as relevant, found by the judge are not in issue in this appeal. The deceased owned certain properties in the King's College area of Lambeth. In about 1951 the defendants, who had recently come to London, were living in an attic. Mr. Burns was a bus conductor. Mrs. Burns was expecting a child. She was also looking for light employment. She was put in touch with the deceased. There was a business in which the deceased was concerned at another address in Warner Road, and Mrs. Burns was engaged to do some light work in the nature of cleaning in the office. She was there only six weeks, but during that period the deceased appears to have formed a romantic attraction for her. He visited the defendants, and expressed concern at the conditions in which they were living and, either shortly before or shortly after their baby (who was a girl) was born in April, 1951, he bought a cottage in Fowler Street, which was in the neighbourhood, for the family to live in. He became godfather to the child. To anticipate for a moment, the subsequently paid for the girl's education and gave her presents.


From the time of the purchase of the cottage in Fowler Street until his death, the deceased provided the family with a residence, at first at the cottage in Fowler Street, then at an address in Love Walk, and, from 1954 onwards, at 116 Warner Road. All these properties were in the near neighbourhood.


There never was any question of either of the defendants doing any work for the deceased in return for their accommodation. Mrs. Burns worked for the deceased for a short time while they were living at Fowler Street, but she was paid for her services. Similarly, when Mr. Burns did Jobs for the deceased, as he did, he was paid for what he did. Any suggestion that there was a service tenancy was not, and is not, pursued. In 1953 the family moved into the residence at Love Walk, which the deceased purchased for the purpose, and, in 1954 into 116 Warner Road, the subject of this action.


The deceased was from the outset very friendly with the family. During the whole period from the time when the defendants entered into occupation of the Fowler Street cottage, down to 1968, when the deceased became ill, he was in the habit of visiting the defendants regularly, sometimes twice a day. He gave money to the daughter to whom he became godfather and in a word he was extremely generous to the defendants. He paid the rates on the several properties which he had obtained for them, and he never required any payment whatsoever in respect of their occupation. Frequently on his daily visits to whichever house the defendants were living in he had supper with them, and according to the evidence he visited them every day, except at weekends. There were visits together to the seaside in the summer.


The learned County Court judge found as a fact that the deceased meant to provide a home for the defendants and intended them to go on living there. It was the evidence of Mr. Burns that the deceased said about each of the three dwellinghouses when the defendants were in them that "if anything happened to him the premises would be left to us". As I have said, the deceased paid the rates. Asked, towards the end of her crossexamination, "If the property was regarded as being yours, did it occur to you that Mr. Timms was being more than usually generous by paying all rates, etc.?", Mrs. Burns answered: "No he had our company. He could come into the house any time he wanted". Mrs. Burns in the course of her examination said that in 1959 (there must be an error in the transcript there) the deceased said he was buying 116 Warner Road "for me", and that he told a Salvation Army welfare officer that he had bought the house for her and at one time he said "Don't worry about the house: it's yours". She was shocked when, following the death of the deceased, she found that this property had not been left to her and I am bound to say that I have the greatest possible sympathy for her in that regard.Of course, the property was not at the outset the property of the defendants, and it never became so, unless it be by the effect of the 1939 Act.


If the matter rested there, I would take the view and so, I think, would the learned County Court judge have taken the view that the defendants entered into occupation of the premises as mere licensees and not as tenants at will under a tenancy which, for the purposes of the 1939 Act, is to be deemed to have determined at the expiration of one year from the commencement thereof.


Mr. Wall, in an argument for which I am much indebted to him, conceded that the law applicable in determining whether there is a tenancy at will or occupation under a licence is correctly stated in a passage in the judgment of Lord Justice Somervell in ( Cobb v. Lane 1952 1 All England Law Reports 1199). The case with which Lord Justice Somervell was there concerned had some resemblances to the present case. What he said was this: "Counsel for the defendant submitted that, notwithstanding certain modem authorities, where there is exclusive occupation for an indefinite period a tenancy at will must be implied unless there is something in the facts to prevent that conclusion. I do not know that I very much quarrel with that. The real question may be: What facts do prevent that conclusion? Certainly under the old cases (and I doubt if this has been affected by the modern authorities), if all one finds is that somebody has been in occupation for an indefinite period with no special evidence of how he got there or of any arrangement being made when he went into occupation, it may be that the court will find a tenancy at will. I am assuming that there is no document, or clear evidence as to terms. The modern cases establish that, if there is evidence of the circumstances in which the person claiming to be a tenant at will went into occupation, those circumstances must be considered in deciding what the intention of the parties was. In Booker v. Palmer"the Master of the Rolls, Lord Greene, said: Therefore, what we have to decide is whether there was any evidence upon which a tenancy "between the respondent and Mrs, Goldsmith could "be inferred. In my opinion, there is no evidence from which any such inference could he drawn. Whether or not parties intend to create as "between thenselves the relationship of landlord and tenant, under which an estate is created in the tenant and certain mutual obligations arise by implication of law, must in the last resort he a question of intention, Where the parties enter into a formal document the intention to enter into formal legal relationship is obvious; but when all that happens is a quite casual conversation on the telephone, it is very much more difficult to infer that the parties are really contemplating entering into any legal relationship at all and in particular, such a special relationship as that of landlord and tenant. There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind". Then towards the end of his judgment Lord Justice Somervell continued in these terms: "No doubt, in former days, except for the question of the statute, the distinction between a tenancy, whether at will or...

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38 cases
  • Leslie Owen Gordon Plaintiff v Vincent Andrews Defendant [ECSC]
    • St Vincent
    • High Court (Saint Vincent)
    • 30 October 2000
    ...that the Defendant occupied the property under a family agreement that amounted to a licence. He relied on the cases ofHelsop v Burns (1974) 3 All ER 406 and Cobb and another v Lane (1952) 1 All ER 1199. The first case is distinguishable in that the court found that the defendants had from ......
  • Bellew v Bellew
    • Ireland
    • Supreme Court
    • 1 January 1983
    ...or generosity, or such like, to negative any intention to create a tenancy". 29 Cobb v. Lane was applied in Heslop v. Burns, 1974 1 W.L.R. 1241. In that case, Roskill L.J. thought that the principle laid down in Cobb v. Lane should be added to by what Denning L.J. said in Fachini v. Bryson......
  • Street v Mountford
    • United Kingdom
    • House of Lords
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    ... ... Facchini v. Bryson [ 1952 ] 1 T.L.R. 1386 , C.A ... Glenwood Lumber Co. Ltd. v. Phillips [ 1904 ] A.C. 405 , P.C ... Heslop v. Burns [ 1974 ] 1 W.L.R. 1241 ; [ 1974 ] 3 All E.R. 406 , C.A ... Issac v. Hotel de Paris Ltd. [ 1960 ] 1 W.L.R. 239 ; [ ... ...
  • Ramnarace v Lutchman
    • United Kingdom
    • Privy Council
    • 21 May 2001
    ...or generosity, or suchlike, to negative any intention to create a tenancy." This statement was accepted as correct by Scarman LJ in Heslop v Burns (1974) 1 WLR 1241 at p. 9 The Ordinance substantially reproduces the provisions of the English Real Property Act, 1833. The limitation period f......
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