Watson v Lucas
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE OLIVER |
| Judgment Date | 04 July 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0704-1 |
| Docket Number | 7905967 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 1980 |
[1980] EWCA Civ J0704-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Willesden County Court
Lord Justice Stephenson
Lord Justice Oliver
and
Sir David Cairns
MR. MARK M. GEORGE (instructed by Messrs. Powell Magrath & Company) appeared en behalf of the Appellant (Defendant).
MR. C. R. SEMKEN (instructed by Messrs. Sylvester Amiel & Company) appeared on behalf of the Respondent (Plaintiff).
On 29th February 1980 His Honour Judge Granville Slack declared in the Willesden County Court that Mr. Lucas, the defendant to proceedings brought against him by the plaintiff, Mrs. Watson, was not a member of the family of a Mrs. Sullivan. Mrs. Sullivan had been the protected tenant of a basement flat in 21 St. Julian's Road, London, N. W.6 when she died on 21st June 1977. Mr. Lucas had been residing with her there at the time of her death and, as the judge held contrary to Mrs. Watson's evidence, for many years before her death. Mrs. Watson bought the freehold of the whole house, No. 21, in 1962, subject to Mrs. Sullivan's tenancy of the basement flat, and lived there on and off from 1962 to 1979. When she gave him notice to quit, as she did in 1977 and again in 1979, he was therefore entitled to remain in occupation of the flat as a statutory tenant by succession pursuant to s.2(l)(b) of the Rent Act 1977 and para. 3 of Schedule 1 thereto, provided he was a member of her family. In his defence he raised that plea. The judge rejected it. He appeals against the judge's decision.
A good deal turns on this question and the outcome of this appeal because Mr. Lucas' continued occupation of the flat has prevented Mrs. Watson from completing work on the house which was required by the local authority; and that led Mrs. Watson to couple with her claim for possession a claim for damages limited to £2,000.00 and Mr. Lucas to counter-claim an injunction and damages. limited. to £1,000.00. Those proceedings the judge has adjourned pending the hearing of this appeal.
The statutory provisions on which Mr. Lucas relies are these: Section 2(1) provides:
"2(1) Subject to this Part of this Act -
(a) after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it;
(b) Part I of Schedule 1 to this Act shall have effect for determining what person (if any) is the statutory tenant of a dwelling-house at any time after the death of a person who, immediately before his death, was either a protected tenant of the dwelling-house or the statutory tenant of it by virtue of paragraph (a) above.
(5) A person who becomes a statutory tenant as mentioned in subsection 1(b) above is, in this Act, referred to as a statutory tenant by succession.
The first Schedule contains these three paragraphs:
"2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.
3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him at the time of and for the period of 6 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 and so long as he occupies the dwelling-house as his residence.
4. A person who becomes the statutory tenant of a dwelling-house by virtue of paragraph 2 or 3 above is in this Part of this Schedule referred to as "the first successor".
This protection was first conferred by s.12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 by defining the expression tenant to include amember of his (or her) family residing with him at the time of his death. S.13 of the amending Act of 1933 introduced the qualification of residence for not less than six months.
The facts are these: Mr. Lucas was born in 1933. He married at 20 and had one child, but after about a year his wife left him for Ireland and later had two more children. A few years later he got to know Mrs. Sullivan. She was a widow with two children, who had been living in this flat with her husband since 1943 and with his children since his death in 1956. After about a year's acquaintance he moved into the flat with her. That was in 1958 when he was 24 or 25 and she was 40, having been born in 1918. Her daughter had already married and left home. Her son, Michael, who gave evidence for Mr. Lucas. was then a schoolboy and continued to live in the flat with his mother and Mr. Lucas until he married in 1964.
From 1958 until her death in 1977 Mr. Lucas and Mrs. Sullivan lived together in the flat as husband and wife, and he lives there still with another woman. The flat consists of two rooms used as bedrooms when Michael was there, a kitchen and a hall, with its own front door and an outside water-closet. They slept in the same bed and had sexual intercourse, but no children. They both worked and he contributed out of his earnings to the housekeeping expenses. She paid the rent and the bills which were all in her name. They never married. He could have divorced his wife but he never did. She was a Roman Catholic and did not want a divorce. Indeed about 1970 she came overfrom Ireland and asked for a reconciliation, but he refused: he would not leave Mrs. Sullivan, and his wife went back to Ireland.
"For the most part", said the judge in the note which he based on notes of his judgment supplied by counsel appearing for the plaintiff and the defendant before him and in this court, "they retained their own names, with one exception, regarding the ex-servicemen's club, of which Mr. Lucas was a member before he met Mrs. Sullivan. He could take her there as his wife, and the was regarded as his Missis. When they went on excursions, it was as Mr. and Mrs. Lucas. There is no evidence that he ever used her name until after her death. He used his own name, and usually she continued to use her own name." This was the only respect in which they did not live as a married couple. There was no evidence from other relatives or friends as to how they were regarded. Michael said, "It was as if they were married". Both the Sullivan children called Mr. Lucas 'Dennis' and his mother referred to him as 'Dennis' when speaking to her son. So their relationship was no different from that of step-father and step-son.
Was Mr. Lucas a member of Mrs. Sullivan's family? On the authority of Brock v. Wollams 1949 2 KB 388, 395 per Lord Justice Cohen, the question the county court judge should and did ask himself is: "Would an ordinary man, addressing his mind to the question whether Mr. Lucas was a member of her family or not, have answered 'yes' or 'no'?" We are bound by the decision of this court in Dyson Holdings Ltd. v. Fox 1976 QB 503 to place the ordinary man not in 1920when Parliament first used the phrase in this context, but in 1977 when Mrs. Sullivan died. And we have also to place him in possession of the evidence which the judge had before he gives his answer.
Gammans v. Ekins 1950 2 KB 328 would seem to have answered the question for us, for in that case this Court decided that an unmarried man, who had lived with a tenant as man and wife for some 20 years before her death (see 1950 2 AER at 141 E), and taken her name, and had no children, was not a member of her family because (as I read the judgments) to hold that he was would be an abuse of language and presuppose an intention of Parliament to reward immorality with irremovability: the party to a union out of wedlock is out of the statutory protection. But that decision was held in Dyson v. Fox to be no longer valid, either because it was wrongly decided (per Lord Denning M. R.) or (per Lord Justice James and Lord Justice Bridge) because it was outdated and no longer applied the popular meaning which would guide the ordinary man's answer.
These are only three of the reported cases in which the question who is a member of a deceased tenant's family has been extensively canvassed since the Act of 1920 first made an answer necessary. The hope expressed in the most recent case in this court. Helby v. Rafferty 1979 1 WLR 13, that all these cases including Dyson Holdings Ltd. v. Fox might be reviewed by the House of Lords, was disappointed by the House in Careqa Properties S. A. v. Sharratt 1979 1 WLR, 928. It would, in ray judgment and in Hamlet's words,be "weary, stale, flat and unprofitable" to go through them all again. The judge went carefully through them and Mr. George for the defendant has taken us through them. I am satisfied that the decisive question for us is whether this case is distinguishable from Dyson v. Fox. It is submitted for the defendant that it is not and that the county court judge was only able to distinguish it on a ground which is erroneous in law or does not distinguish it in fact. In that case this court decided that an unmarried woman who had lived with an unmarried man as man and wife for 21 years before his death, but without children, and had taken his name, was a member of his family residing with him at the time of his death because, in the view of the majority, the union was permanent and stable enough to make her a member of his family in the eyes of the ordinary man and in the popular meaning of that phrase in 1975, or in 1961 when the man died.
That decision and its ratio have been doubted and distinguished by this court in Helby v. Rafferty. It was...
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Fitzpatrick v Sterling Housing Association Ltd
...natural sense) of the word in the particular context, and that "family" must be read as meaning something more than "household". 20In Watson v Lucas [1980] 1 WLR 1494 this court was concerned with a heterosexual relationship between the tenant and a married man who never divorced his wife, ......
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Fitzpatrick v Sterling Housing Association Ltd
...family because they had deliberately opted to retain their formal independence and they had not been recognised as being married. In Watson v. Lucas [1980] 1 W.L.R. 1493, on the other hand, the Court of Appeal by a majority held that a woman who had lived with a man, although he remained m......
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Chios Property Investment Company Ltd (Plaintiff v Miss A. Arranz Lopez (Defendant
...referred to the three recent authorities, namely Dyson Holdings Ltd. v. Fox (1976) 1 Q.B. 503, Helby v. Rafferty (1979) 1 W.L.R. 13 and Watson v. Lucas (1980) 1 W.L.R. 1493, and then set out the test as follows: "What the claimant has to show is that a sufficient state of permanence and sta......
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