Morgan v Murch
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WINN,LORD JUSTICE KARMINSKI,SIR GORDON WILLMER |
| Judgment Date | 10 February 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0210-4 |
| Docket Number | No. 266.69 1570B |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 1970 |
[1970] EWCA Civ J0210-4
In The Supreme Court of Judicature
Court of Appeal
(On appeal from the Portsmouth County Court)
Lord Justice Winn
Lord Justice Karminski and
Sir Gordon Willmer
Mr. D. Keene (instructed by Messrs. Blake, Lapthorn, Rea and Williams, of Waterlooville) appeared on behalf of the Plaintiff /Respondent.
Mr. K. Bagnall (instructed by Messrs. Gregory, Rowcliffe and Co. agents for Messrs. Cousins, Burridge and Connor, of Waterlooville) appeared on behalf of the Defendant/Appellant.
This is an interesting and important case, Possibly it will not so often be relevant as formerly it might have been, since the provisions of the Statute to some extent have worked themselves out in the course of time, but the problem is in the instant case of great importance since upon its solution depends the answer to the claim made for vacant possession of a dwelling house.
It is unnecessary to go into the details of the transmission of the reversion to this house. They have all been properly attended to in course of the procedural steps which have been taken in order to substitute the Plaintiff for the original Plaintiff. No more need be said about that.
The issue really is in a very narrow compass. It is whether or not the Defendant in these proceedings in the County Court, George Albert Robert Murch, had resided with his own anther during the period of six months immediately preceding her death, which occurred on the 27th June, 1968. Mr. Bagnall, who has appeared for the Defendant against whom an order for possession was made on the Defendant's appeal, has, if I may be allowed to say so, very competently, succinctly and lucidly assisted the Court: we were able to travel quickly through the relevant provisions of the Rent Act, 1968, and in particular the more immediately relevant provisions of Schedule 1 of that Act, and subsequently of Paragraph 7 of the First Schedule to the Rent Act, 1968.
By reason of the help which the Court thereby derived, it really is unnecessary to embark upon any discussion of most of the provisions of that Schedule, or of the Act itself. It is necessary to note, however, that under Paragraph 7, "where a person who was a member of the first successor's family was residing with him at the time of and for the period of six months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement,or in default of agreement by the County Court, shall be the statutory tenant if aid so long as he occupies the dwelling house as his residence". It is common ground, fortunately for the Court, that the premises in question, which are known as No,62, Fir Copse Road, Purbrook, were let some little time ago to a Mr. William Murch, the father of the Defendant in the instant proceedings, who died on the 2nd September, 1967 and that the premises were subject to the Rent and Mortgage Interest (Restrictions) Act, 1922 to 1939, and that therefore Mr. William Murch's tenancy was a protected tenancy.
After the death of William Murch on the 2nd September, 1967, his widow, Violet Lily May Murch, retained possession of the same dwelling house as a tenant pursuant to the Rent (Restrictions) Act protection, and it is common ground (Counsel have been kind enough to say so expressly) that within the meaning of the relevant provisions Mrs. Murch, the widow, became thereafter the first successor.
There is no doubt, it is manifest on the evidence, that George Albert Robert Murch spent quite a lot of the time comprised in the period of six months immediately preceding the death of his mother in the house where his mother was then living. His life was to a considerable extent spent there and he was living there. He was there a very substantial part of that relevant time though, of course, he was away sometimes for a couple of nights together, sometimes for the weekend, the reason far his absence being either his work as a bricklayer or the fact that he wished to visit friends or other relatives: but it is common ground that he was for the most part, the majority of that relevant time, in the house, sleeping there, eating there, and no doubt from time to time watching the television (if they had one) or otherwise occupying himself, for example, looking after the budgerigars that were the property of his mother. The question is whether he was residing theme.
Now, as it happened, he used once upon a former time to live in this house. One is not told by the evidence exactly when or how it came about that he left the house, except that he was moved by reason of overcrowding, and apparently that may have been in January 1955, a considerable time ago. He then went to 20, Waite End Road, Waterlooville, which was a council house or flat, and he lived there with his wife, and in the course of time there were five children there with them. There is no doubt that he was residing at that address, No. 20 Waite End Road, Waterlooville, as his usual place of residence, if that is not a somewhat grandiloquent way of referring to a council house. That was where he was normally living until November 1967, for a period of twelve years.
Before his father died, the Defendant in this action did spend a little time, a certain amount of time, with his father in the performance of filial duties to his ailing father. His father then died and he continued to visit his mother from time to time, again no doubt to help her in her advancing age, but before November 1967 it is not suggested, as one understands, by anybody that he was residing in the mother's house. He had his own place in which he was normally living.
(Incidentally, though this is perhaps no very great help towards a solution of the problem, it does seem to me personally rather undesirable to discourage sons and daughters from going to their aged parents' homes to render to them filial duties and help. It would be better really to encourage them by making available to them the advantages which the Act of Parliament clearly intended to afford to them, and it would be adverse to the interests of elderly people, ageing parents, if it were to be said that one must...
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