Thompson v Ward
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BIRKETT |
| Judgment Date | 21 April 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0421-2 |
| Court | Court of Appeal |
| Date | 21 April 1953 |
[1953] EWCA Civ J0421-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Birkett, and
Lord Justice Romer
MR. THOMAS WIIPHAM (instructed by Messrs Montagu's & Cox & Cardale) appeared on behalf of the Appellant (Defendant)
MR. L. J. STRANGER-JONES (instructed by Mr. Edgar M. Hiscocks) appeared on behalf of the Respondent (Plaintiff)
THE MASTER ROLLS: This is an action for trespass to land. I start with that statement because it is, in my judgment, fundamental to the whole problem which is one of nicety and difficulty arising under the Rent Restriction legislation. By his particulars of claim the Plaintiff alleged that he was at all material times tenant of certain premises known as 17 Buckingham Road, Harlesden. He furtheralleged that about the year 1947 he allowed the Defendant, Mrs. Ward, to reside on the premises as a licenses in consideration of services rendered. Finally, he alleged that the licence was determined by notice. It is, I think, unnecessary to go at any length into the relationship which subsisted from 1944 onwards between the plaintiff and the Defendant. The services rendered, as I understand it, consisted in this, that Mrs. Ward then came to live with Mr. Thompson as his wife. Somewhere about 1947 the happy relations between them were disturbed by the appearance of a lodger who eventually supplanted Mr. Thompson in the Defendant's affections so that in the year 1949 the Plaintiff left this house altogether, taking with him, if any remained, all his possessions. Thenceforward, Mrs. Ward remained in occupation of the relevant part of the house with her own furniture exclusively and her own possessions and she paid herself all the rent and outgoings. In the meantime, however (that is again in the year 1947 or thereabouts), the contractual tenancy which the Plaintiff originally had of this house came to an end, and it is not in doubt that from 1947 to 1949 he was a statutory tenant, as that phrase is commonly understood.
The question in the case is, briefly, whether the effect of section 15 of the Rent and Mortgage interest (Restriction) Act 1920 is that there still persists in the Plaintiff, Mr. Thompson, such a right in respect of these premises as will support an action for trespass. I shall presently read certain parts of section 15, but first it is necessary to bear in mind that under the older law, and until the impact of this legislation, an action for trespass was only maintainable at the suit of him who was in possession of the land, using the word "possession" in its strict sense and including a person entitled to the immediate and exclusive possession. There is, however, no doubt that whatever be the exact nature of the personal rights ofoccupation given by the Rent Restriction legislation, those rights are, as Lord Justice Scrutton observed in Keeves v. Dean as long ago as 1924 ( 1924 1 King's Bench, page 685) good against all the world — and now I quote from Lord Justice Scrutton: "I take it that he" — that is the statutory tenant — "could maintain trespass against any person who entered the premises without his permission".
A good deal of water has flowed under Westminster Eridge since 1924 so far as this legislation is concerned. In 1948 there came before this Court the case of Brown and Brash. That was a case in which the tenant, or former tenant, had been convicted of a felony and sentenced. to a term or imprisonment. When he went to prison he left in the house Which he had occupied his mistress and two children which he had by her. During the term of his incarceration those persons left so that the premises fell vacant. The landlord thereupon retook possession. The former tenant, on his release from prison, sought to recover possession by action, claiming that his absence from the house was attributable to his involuntary misfortune, so that his statutory tenancy must be treated as still subsisting.
I have made so much reference to the facts because the learned Counsel for the Respondent is entitled to point out that the language Which I am about to read of Lord Justice Asquith was appropriate, as it was delivered, in reference to the particular facts of the particular case before the Court. The Judgment of the court which Lord Justice Asquith delivered was a Reserved Judgment; and picking up, so to say, the earlier principles which had been expounded by Lord, Justice Scrutton in Keeves v. Dean in the passage which I have read, and in the later case of Skinner and Geary, he analysed closely the precise situation of the person commonly called a statutory tenant. This was his language: "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 for the purpose of retaining protection the tenant cannot be compelled to spend twenty-four hours in all weather's under his own roof for three hundred and sixty-five days in the year. Clearly, for instance, the tenant of a London house who spends his week-ends in the country or his long vacation in Scotland does not necessarily cease to be in occupation. Nevertheless, absence may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of a cesser of possession or occupation. The question is one of fact and of degree. Assume an absence sufficiently prolonged to have this effect: The legal result seems to us to be as follows: (1) The onus is then on the tenant to repel the presumption that his possession has ceased. (2) In order to repel it he must at all events establish a defacto intention on his part to return after his absence. (3) But we are of opinion that neither in principle nor on the authorities can this be enough. To suppose that he can absent himself for five or ten years or more retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts, as affirmed in Keeves v. Dean and Skinner v. Geary. (4) Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if he couples and clothes his inward intention with some formal outward, and visible sign of it; that is, instals in the premises some caretaker or representative, be it a relative or not, with the status of a licenses and with the function of preserving the premises for his own ultimate home-coming. There will then, at all events, become one to profit by the housing accommodation involved, which will not stand empty. It may be that the same result can besecured by leaving on the premises, as a deliberate symbol of continued occupation, furniture"—and then there is a reference to Brown v. Draper. "Apart from authority, in principle, possession in fact (for it is with possession in fact and not with possession in law that we are here concerned) requires not merely an 'animus possidendi' but a corpus possessionis', namely, some visible state of affairs in which the animus possidendi finds expression. (5) If the caretaker (to use that term for short) leaves or the furniture is removed from the premises, otherwise than quite temporarily, we are of opinion that the protection, artiricially prolonged by their presence, ceases, whether the tenants wills or desires such removal or not".
How does the present plaintiff full within the ambit of what lord Justice Asquith has called a non-occupying, tenant? For if he does it seems to me that whatever night be the position as between him and landlord under section 15 or otherwise in proceeding between him and his landlord, he cannot have such a right to possession of these premises as will support an action of trespass at law. In this case, I think, on the facts as found by the Judge, the Plaintiff cannot avoid the result that he is a non-occupying tenant within the meaning of that phrase. At least has failed to establish that he has such a right or possession as will suffice to maintain his action. In addition to the facts which I have already mentioned, there is the highly important finding — and I now quote — "The plaintiff was not sure when he left whether he intended to return but subsequently he remarried and on his remarriage, if not before, he ceased to have any intention of returning to the premises".
If the matter rested there alone I should not have felt difficulty, but difficulty there undoubtedly is and it is of this nature. If reference is made to section 15 then (it is said by Mr. Stranger-Jones) this statutory tenant, whatever may have been locked in the recesses of his mind, havingfailed to take the only step open to him to put an end to the statutory tenancy, remains a statutory tenant willy-nilly. Further (he says), the Defendant's presence in this house points to the fact that she was given a licence by the Plaintiff; and if those two circumstances are combined then there is no answer to the claim at...
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Smith (Colin) Music Ltd v Ridge
...as a "caretaker" pending the return of the tenant 11 That case was applied by this court in the later decision of ( Thompson v. Ward 1953) 2 Q.B. page 153. 12 There a tenant had installed his mistress in a house of which he was tenant. After he had lived with her there for some time his con......
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MY COVE SDN BHD (COMPANY NO. 929988-A) vs EL NUTRITION SDN BHD (COMPANY NO. 96356-M)
...was dismissed. 49. In Mohamed Said v. Fatimah (1962) 28 MLJ 328, applying the rule as pronounced by Evershed M.R. in Thompson v. Ward [1953] 2 QB 153, Adam J held that an action for trespass is maintainable only at the suit of a person in possession of the land, and the means a person must ......
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Carballo et Al v Paul et Al
...of the land using the word possession in the strict sense as including a person entitled to immediate and exclusive possession.” 27 Thompson v Ward [1953] 2 Q.B. 153, 158, 159 . 28 I hold, therefore, that the plaintiffs' pleading was sufficient to maintain an action in respect to the pla......