Smith (Colin) Music Ltd v Ridge
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,LORD JUSTICE LAWTON,MR. JUSTICE BRIGHTMAN |
| Judgment Date | 30 October 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1030-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Plaint No. 73 505316 |
| Date | 30 October 1974 |
[1974] EWCA Civ J1030-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Cairns
Lord Justice Lawton and
Mr. Justice Brightman
Plaint No. 73 505316
On Appeal from the Weston-Super-Mare County Court
(His Honour Judge Forrest)
MR. P. TALBOT (instructed by Messrs. Reed & Reed, Solicitors, London, agents for Messrs. Hall, Ward & Fox, Solicitors, Weston-Super-Mare) appeared on behalf of the Plaintiffs (Appellants).
MR. C. GOSLAND (instructed by Messrs. Stiddard & Chew, Solicitors, Weston-Super-Mare) appeared on behalf of the Defendant (Respondent).
This appeal raises interesting points under the Rent Act and the court has had the benefit of a very helpful argument from counsel on both sides.
The appeal comes from a decision of Judge Forrest, sitting at the Weston-Super-Mare County Court, by which he refused an order for possession. The premises concerned are the upper part of a building called The Bank House, High Street, Worle, Weston-Super-Mare.
The plaintiffs, by their particulars of claim, claimed possession against the defendant on the ground that she was a trespasser from 9th August 1973 onwards. By her defence the defendant asserted that she was a joint weekly tenant with one Venn and was protected by the Rent Act. In further and better particulars she said the Joint weekly tenancy had been created by an oral agreement made in 1969 between one Fry, who was a former owner of the premises, on the one hand, and herself and Venn on the other.
The evidence given for the plaintiffs was given by a Mr. Joyner, who said that he and his wife had bought the premises in March 1973 at a time when Venn was the tenant; there was a rent book which showed Venn as sole tenant. Mr. Joyner was a director of the plaintiff company, and the purpose of buying the premises was to use the shop which was on the ground floor as a music shop and to use the upper part of the premises as a residence for the manager. They got Mr. Venn to sign a Deed of Surrender on 9th August 1973 and immediately after that the Joyners conveyed the premises to the plaintiffs.
The defendant gave evidence that she was a divorced woman who had lived with Venn from 1968 onwards; she already had two children of her own and they lived with her and Venn. Then, from September 1969 the couple lived, not being married to oneanother, as husband and wife at the flat with which we are concerned here and they continued to live together until nearly the end of July 1973; during that time two further children were born to the defendant, who were fathered by Venn, On 28th July 1973 Venn left her with no intention of returning.
The learned judge held that Venn had a protected tenancy which could be terminated only by a judgment against him or by surrender and actual delivery up of possession by him. The judge said that Venn had left, leaving the defendant in possession, to provide accommodation for herself and the children. Accordingly, the judge held that he had not given up possession.
Really, the whole matter boils down to the question of whether or not in the circumstances that I have outlined, Venn had given up possession; or, to put it in the statutory language under Section 3 (l) (a) of the Rent Act, whether he had ceased to occupy the premises as his residence, because it is only so long as he occupies the premises as his residence that he is a statutory tenant and it would only have been if he had continued to be a statutory tenant that the defendant could be there otherwise than as a trespasser.
It is clear from a number of cases decided in this court that the mere physical absence of the tenant from the premises in which he is a protected tenant does not remove protection from him, A number of the cases which have been decided, particularly Brown v. Draper, ( 1944) King's Bench, page 309, are cases where a wife was left in possession; the position of a mistress left in possession was first considered, so far as appears from the reports, in ( Brown v. Brash and Ambrose 1943) 2 King's Bench, page 247. That was a decision of this court in which the judgment of the court was delivered by Lord Justice Asquith, It was a case where a mistress had been left in occupation of the premises, but had infact left at the time when the landlord was seeking possession.
These passages in the judgment of the court are I think material to the present case. At page 254 Lord Justice Asquith said: "We are of opinion that a 'non-occupying' tenant prima facie forfeits his status as a statutory tenant. But what is meant by 'non-occupying'? The term clearly cannot cover every tenant who, for however short a time, or however necessary a purpose, or with whatever intention as regards returning, absents himself from the demised premises. To retain possession or occupation...
To continue reading
Request your trial