Temple v Mitchell
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1956 |
| Date | 28 June 1956 |
| Docket Number | No. 27. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Sheriff of Roxburgh, Berwick and Selkirk.
Landlord and TenantStatutory rent restrictionSubjects falling within the ActsSummary removingTenant deserting wifeWife left in occupation of subjectsWhether deserted wife's occupation equivalent to retention of possession by husbandWife's title to defendIncrease of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 and 11 Geo. V, cap. 17), sec. 15 (1).
The Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, by sec. 15 (1), confers a statutory tenancy on a tenant "so long as he retains possession."
A husband deserted his wife, leaving her in occupation of the matrimonial home, a house which was controlled under the Rent Restrictions Acts and of which he was the tenant. He ceased to pay rent and disappeared without trace, having made no intimation to the landlords that he was giving up possession of the house, and having made no attempt to evict his wife and children or remove his furniture from it. His wife remained in occupation with the children and furniture and tendered rent to the landlords, who refused to accept it. In an action at their instance for the summary removal of the husband and his family, the wife, who alone defended the action, pleaded the protection of the Acts on the ground that the husband, by leaving her, his children and furniture in the house, had retained possession of it.
Held (1), followingSkinner v. GearyELR, [1931] 2 K. B. 546, and Menzies v. Mackay, 1938 S. C. 74, that it was a question of fact whether the husband had retained possession of the house in the sense of the Rent Restrictions Acts; (2) (disc. Lord Mackintosh) that in the circumstances the fact of his desertion demonstrated that he had no intention of returning to the house and therefore could not be regarded as having retained possession of it; and, accordingly, (3) that the wife had no title, either at common law or under the Acts, to defend the action.
Observed that English decisions on the position of a deserted wife, left in occupation of the matrimonial home, were based on the special position of a wife in English law and not on the provisions of the Acts.
Opinion, per Lord Mackintosh, that Brown v. DraperELR, [1944] K. B. 309, and Old Gate Estates v. AlexanderELR, [1950] 1 K. B. 311, unlike other English decisions, did not depend on any doctrine peculiar to English law and should be followed.
William Temple and Another brought an action of removing in the Sheriff Court at Jedburgh against Robert Mitchell, whose wife, Mrs Janet Mitchell, was later sisted as an additional defender.
The following narrative of the facts and procedure is taken from the opinion of Lord Patrick:"In this case the lower flat of a tenement was let as a dwelling-house to one Robert Mitchell under a verbal lease between him and the present landlords' predecessors in title. The rent was such as to bring the house within the scope of the Rent Restrictions Acts. The lease was renewed from year to year by tacit relocation, and was so renewed for the year to 28th May 1954. Robert Mitchell, the tenant, personally occupied the house until 16th June 1953. On that date he separated from his wife for reasons which do not appear, but the landlords are content that this case shall be decided on the basis that he deserted his wife. She has never since known his address. It is not said that she has ever heard of or from him. It is not said that he has since then contributed to her support. He personally has not occupied the house since that date, nor has he paid any rent for the premises. He has simply disappeared without trace. The tenant's wife, family and furniture have remained in the house, though without any express permission from him. His wife tendered the half-year's rent due at 28th November 1953 to the landlords, and this was accepted from her, as agent for him. In February 1954 the landlords gave notice to quit at Whitsunday 1954. The notice was served on the tenant at his last known address, the house in question. It was also served upon his wife, who then and since occupied the house. At Whitsunday 1954 the wife refused to quit the house, whereupon the landlords brought this action of removing, craving that the defender be ordained to flit and remove himself, his family and servants, from the house. No appearance was entered for the tenant, and in July 1954 the Sheriff-substitute granted decree of removal in absence. In September 1954 the wife craved to be sisted as a party defender, and in October the Sheriff substitute recalled the decree in absence and sisted the wife as a party defender. She alone defends the action."
The pursuers pleaded:"(1) The defender Robert Mitchell's right of occupancy of said house having expired and the requisite warning to remove having been given, the pursuers are entitled to decree as craved. (2) The defender Robert Mitchell not being entitled to the protection of the Rent Restrictions Acts, et separatim having contravened the terms and conditions of tenancy, decree of removal should be granted. (3) The defender Mrs Jane Mitchell not being entitled to the protection of the Rent Restrictions Acts, decree should be granted as craved. (4) The defences, so far as based on averments purporting to have been made on behalf of the defender Robert Mitchell, having been so made without mandate by, or authority from, the said Robert Mitchell and being irrelevant, should be repelled, et separatim such averments should not be admitted to probation. (5) The defences, quoad the defender Mrs Janet Mitchell, so far as based on averments by her instructing a tenancy of said house by continued occupancy by the said Robert Mitchell, having been made without mandate by, or authority from, the defender Robert Mitchell, and being irrelevant, should be repelled, with expenses, et separatingsuch averments should not be admitted to probation. (6) The defencesaliunde of the defender Mrs Janet Mitchell, being irrelevant, should be repelled with expenses."
The wife, as sole compearing defender, pleaded, inter alia:"(1) The male defender's right of occupancy having been constructively maintained by the continued occupancy by his wife and family, the action is irrelevant and should be dismissed with expenses. (2) The defenders being protected in their tenancy by the Rent Restrictions Acts, the action should be dismissed with expenses."
On 11th February 1956 the Sheriff-substitute (C. de B. Murray) sustained the defender's pleas, repelled the pursuers' pleas, and dismissed the action.
The pursuers appealed to the Court of Session, and the case was heard before the Second Division on 5th and 6th June 1956.
At advising on 28th June 1956,
LORD JUSTICE-CLERK (Thomson).This case raises an interesting but difficult question under the Rent Restrictions Acts as to the position of a wife who is deserted by her husband, but is left in occupation of the family home. Some three years ago the husband, who was tenant of a house owned by the pursuers, separated from his
wife and family, leaving them in the house with the family furniture. He has not been heard of since. The wife has remained in the house and has tendered the rent, which, however, the pursuers refuse to accept. Initially the pursuers raised this action against the husband and obtained a decree in absence against him. Subsequently the wife was sisted as a party by the Sheriff-substitute, who has now decided the case against the pursuers. The pursuers have appealed. It was made clear to us that the pursuers did not wish to bear the expenses of a proof and were therefore prepared to take the case on the footing that the husband had "deserted" his wife and family and that the furniture which he had left in the house was his. This is apparently the situation most favourable to the wife's case and it was not suggested by her counsel that inquiry would improve it. I think, then, that we can safely deal with the issue on the footing of the pursuers' concessionThe question which arises is whether a man who behaves as this man has can be said to have retained possession of the house in which he has left his wife, family and furniture.
Clearly, personal residence in the house is not essential to a retention of possession. The tenant who goes to a distant job, the seafaring man and so on, may retain possession, if he leaves in the house his wife or his family or a housekeeper or even his furniture. It will be a question of fact in each case, and the solution will depend on the circumstances. The presence of his wife in the house may be strong evidence that the husband still retains possession, but at first sight it confers no independent right or special privilege on the wife. The situation need be no different with a sister or a daughter or, indeed, an outsider, if the sister or daughter or outsider is there to maintain his possession. But, in addition to some physical evidence of retention of possession, whether by leaving personnel or furniture in the house, there must be an intention to return. The tenant remains the tenant because he is using the house in some way consistently with being an occupier, although his circumstances preclude his actual residence. This is all in sharp contrast to the man who has divorced his wife; he cannot by leaving her and his family and his furniture in the house be said to retain possession, as it is inherent in the situation that he is not intending ever to live in the house himself.
It would appear, then, that, broadly speaking, the question whether a tenant who is not in personal occupation can be said to retain possession is a question of fact in the determination of which the tenant's intention to return is essential. There is ample authority to this effect in both countriesSkinner v. GearyELR1; Menzies v. MackaySC.2 If the question of fact is decided in the tenant's favour, he remains the tenant, but no right of any kind vests under the...
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