Metropolitan Properties Company Ltd (Plaintiffs v John Barry Cronan (First Defendant Mrs. Cronan (Second Defendant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE MAY,LORD JUSTICE EVELEIGH |
| Judgment Date | 12 March 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0312-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0115 |
| Date | 12 March 1982 |
[1982] EWCA Civ J0312-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WESTMINSTER COUNTY COURT
(HIS HONOUR JUDGE BOLLAND)
Royal Courts of Justice
Lord Justice Cumming-Bruce
Lord Justice Eveleigh
and
Lord Justice May
82/0115
Plaint No: 80 15901
and
MR. PETER MILLETT Q.C. and MR. DANIEL PEARCE-HIGGINS (instructed by Messrs. Piper Smith & Basham, Solicitors, London SW1) appeared on behalf of the Defendants (Appellants).
MR. D. NEUBERGER (instructed by Messrs. Memery & Co., Solicitors, London WC1) appeared on behalf of the Plaintiffs (Respondents).
I have asked Lord Justice May to deliver the first judgment.
This is an appeal from the order made by His Honour Judge Bolland in the Westminster County Court on 1st May 1981 that the respondents should recover possession against each of the appellants of the flat at 26 Carlisle Mansions, Carlisle Place in London.
The brief facts of the case are as follows. The respondents were and are the owners of a block of residential flats known as Carlisle Mansions, which are situated behind Victoria Street in south-west London. On 19th May, 1971 the first appellant, Mr. Cronan, took a lease of the flat numbered 26 Carlisle Mansions. This was for a term of three years. At some stage during this demise the second appellant, Mrs. Cronan, began to live with Mr. Cronan and they were ultimately married in April 1973. On some date between then and 8th February, 1974 a son was born to them.
Unfortunately marital difficulties developed between Mr. and Mrs. Cronan and on 8th February, 1974 the former took another three year lease of No. 66A, Carlisle Mansions. He moved out of No. 26 and has ever since lived in No. 66A as his residence. It is quite clear that thereafter he had no intention of returning to No. 26.
Be that as it may, when the three-year term of No. 26 granted to him in 1971 was about to expire, he was offered and accepted a further three-year lease of this flat from June 1974. Although this fresh lease contained a covenant on his part to use the flat only as a private residence occupied by him and his own immediate family and not for any other purpose, there is no doubt that ever since 1974 Mr. Cronan was living in No. 66A Carlisle Mansions and his wife and son have been living in No. 26. Further, it is also clear, and the learned county court judge so held, that by their servants or agents the respondents were at all material times well aware that this was the situation.
This continued not only during the currency of the contractual tenancies of both 26 and 66A Carlisle Mansions but for a time thereafter. Towards the end of 1977 Mrs. Cronan instituted divorce proceedings against her husband and the decree nisi was made on 18th November, 1977. At the same time an order for joint custody of the son was made, with care and control to Mrs. Cronan. On 3rd January, 1978 the decree nisi was made absolute.
At some stage thereafter more senior members of the respondents' organisation became aware that Mr. Cronan was the nominal tenant from them of both Nos. 26 and 66A Carlisle Mansions and the respondents accordingly instituted proceedings against him for possession of No. 26. These were originally on the basis that as he was living in No. 66A and not in No. 26, there was clearly a breach of the covenant concerning occupation to which I have already referred. As I have said, however, at all material times other servants of the respondents more directly concerned were well aware that Mr. Cronan was not living in No. 26 and consequently, having received rent in those circumstances there was no doubt that the respondents had waived their right to rely upon any such breach and that they would not have been entitled to possession on this ground alone.
However, the true state of the relationship between Mr. and Mrs. Cronan and the fact that a decree absolute had been granted only became fully known to the respondent landlords when the appellants served their defence in the County Court proceedings for possession. I should add that although quite clearly at the time of the decree Mrs. Cronan could have made an application under section 7 of the Matrimonial Homes Act, 1967 for the transfer to her of the then existing statutory tenancy of No. 26, for some reason or other no such application was made.
Upon receipt of the defence in the proceedings, the landlords promptly amended their particulars of claim to allege that even though Mr. Cronan, and thus Mrs. Cronan, might have been entitled to remain in occupation of No. 26, at first under a contractual tenancy, and then under a statutory tenancy until 3rd January, 1978, the latter determined upon the grant of the decree absolute and that accordingly they were entitled to possession on this basis also.
Notwithstanding various arguments which were addressed to the learned County Court judge on behalf of the appellants and have been repeated before us, to which I shall hereafter refer, upon these facts he came to the conclusion that neither Mr. nor Mrs. Cronan, nor indeed their son, had any right to remain in possession of No. 26 and made the possession order accordingly. It is against that possession order that the appellants now appeal herein. I should also add that when questions of maintenance came to be decided between Mr. and Mrs. Cronan on their divorce, he undertook to continue to pay the rent of No. 26 and to allow his wife and son to remain in occupation of that flat. In consequence a nominal order for maintenance in favour of Mrs. Cronan was made, coupled with one for periodical payments of £17 a week in respect of their infant son. It is quite clear that both Mr. and Mrs. Cronan intended that Mrs. Cronan should remain in No. 26, where she had in fact been living since some date between 1971 and 1973.
In so far as the law is concerned, ever since the well known judgment of Lord Justice Scrutton, in Skinner v. Geary, (1931) 2 King's Bench, 546, the basic principle governing the operation of the Rent Acts and the entitlement to security from dispossession which they give, is that the latter can only be enjoyed by an occupying tenant and only for so long as he is in occupation of the relevant dwellinghouse as his home. See also, for example, per Lord Wright in Hiller v. United Dairies (London) Ltd., (1934) 1 King's Bench, 57, and the Court of Appeal in Cove v. Flick, (1954) 2 Queen's Bench, 326.
Over the last 50 years a limited number of apparent exceptions to this general rule have been developed by the courts as "empirical solutions to prevent injustice being done", per Lord Wilberforce in National Provincial Bank Ltd. v. Ainsworth, (1965) Appeal Cases, 1175, at page 1252. One of these apparent exceptions, for example, is the case of temporary absence—the sea captain who is away on a voyage but intends to return to the relevant dwellinghouse. Analagous to this is the case of the man who can properly be said to have two homes, each of which attracts the protection of the Rent Acts—the home in the country and the flat in London which he occupies during the week in order to carry on his business. Another apparent exception to the general rule developed by the courts is that which can briefly be described as that of the "deserted wife": in such cases it has been held that the husband tenant, though absent, must be deemed to be occupying the dwellinghouse by his wife with whom he has a duty to cohabit and to whom he owes a duty to maintain. The security of tenure which such a wife enjoys only lasts at least so long as she remains the tenant's wife: once the marriage has been ended by a decree absolute of divorce, the protection ceases: Robson v. Headland, (1948) 64 Times Law Reports, 596, approved and applied by the Court of Appeal in Heath Estates Ltd. v. Burchell. (1979) 251 Estates Gazette 1173.
There may also be an apparent exception to the general rule in a case where the landlord knows that the tenant is merely nominal and the real tenant is somebody else. In these circumstances the real tenant may be protected. However, having regard to the basic principle governing the Acts and in the light also of the decisions in S.L. Dando Ltd. v. Hancock (1954) 2 Queen's Bench, 317 and Cove v. Flick I think that this last apparent exception, if indeed it can ever be made good in law, only applies where the landlord grants the tenancy to the nominal tenant as a sham and for the purpose of being free of the burdens of the Rent Acts to which he would otherwise be subject in respect of the "real" tenant. Where by a genuine transaction, albeit that the true facts are known to the landlord, the latter lets a dwellinghouse to one person, for instance a father, for the purpose of its occupation by another, for instance the child of that father, then when the contractual tenancy expires I do not think that the occupying child is entitled to the protection of the Rent Acts. It might appear that in such circumstances the landlord was having the benefit of both worlds; during the tenancy he looks to the father for the rent and the due performance of the covenants; at the end of it he is entitled to vacant possession: but one must not forget that prima facie the demised premises belong to the landlord to make what profitable...
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