ANDRÉ v ROBINSON [2007] EWCA Civ 1449

Case No B5/2007/0772[2007] EWCA Civ 1449
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
(HER HONOUR JUDGE PEARL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 14 th December 2007
Before
LORD JUSTICE BUXTONLORD JUSTICE SEDLEYLADY JUSTICE ARDEN
Between
ANDRÉAppellantROBINSONRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr J Manning and Ms V Osler (instructed by Clc Solicitors) appeared for Appellant.Mr T Grant and Mr A Winter (instructed by Messrs Bolt Burdon) appeared for Respondent.
Judgment
[1]Ms Robinson is the tenant of a first floor flat in a dwelling house at 42 Hartford Road, London N3. Physically it contains a large bedroom, a living room, a kitchen, a bathroom, a toilet and a small bedroom or box room. The issue in these proceedings is whether her tenancy includes both bedrooms, as initially it did and on her case still does, or whether it was shorn of the smaller one in or about 1996 by a surrender of the whole and a regrant of part. If it was, then the effect will be that Ms Robinson and her partner will be unable to continue to occupy the remainder of the flat because they have two small children, and Mr André will secure possession in practice of the whole flat.[2]Ms Robinson has lived in the flat since 1988 when she and two friends, Mr Williams and Miss Malone, entered jointly into an oral tenancy agreement with Mr André’s mother, from whom Mr André inherited the freehold interest on her death in December 1996. This was by common consent, in view of its date, a protected tenancy under the Rent Act 1977. When her two co-tenants left, Mrs André agreed to continue to accept rent from Ms Robinson alone, creating a sole statutory tenancy of the same two-bedroom flat. In order to help with the rent payments, however, Ms Robinson with Mrs Andre’s agreement successively brought two people -- Mr Lacey for a period from 1996 to 1997, and Mr Kennedy for a period in 1997 to 1998 -- to live in the flat with her. She moved into the larger bedroom, and Mr Lacey and Mr Kennedy each paid a regular amount for their occupancy of the smaller bedroom. By arrangement - and the nature of the arrangement is going to be important - they each made their rental payments directly to Mrs André.[3]When they left, Ms Robinson went on paying rent and occupying the whole flat from 1998 with her present partner Mr Dennis, and in due course with their two children. In 2007 Mr André issued these proceedings, alleging that Ms Robinson was, and therefore had been since Mr Kennedy’s departure in 1997, a trespasser in the small bedroom. Again importantly, his claim was and is for possession of the small bedroom alone.[4]At trial of the action in the Barnet County Court on 27 March 2007 Judge Pearl dismissed the claim. She found Ms Robinson, corroborated by her witnesses, to be a dependable historian, and Mr André not to be. Because there had been a typing error in the defence form, she gave permission without opposition for the defence to be amended to correspond with Ms Robinson’s written evidence about the rent levels: that there had not been a reduction in the monthly rent in 1996 when the two co-tenants left, but an agreed increase from an aggregate of £200, of which Ms Robinson had contributed £80, to a single rent of £250.[5]For reasons I am coming to, however, the rent level, although a material part of the history, is not the critical part of it; nor is the fact that Mr André had in 1998 sought to substitute a written shorthold tenancy agreement which included both bedrooms. What matters is the character of the arrangement made with Mrs André for accommodating first Mr Lacey and then Mr Kennedy. This was first and foremost a question of fact, but secondly a question of the legal characterisation of the facts that were found.[6]As to the facts, this is how HHJ Pearl, in an extempore judgment delivered on the conclusion of argument, found them. “26. From the findings of fact I have made, it follows that the defendant held a statutory tenancy of the whole flat. This is consistent with the defendant’s evidence, which I accept, is that she did not ask for permission to change rooms. She wanted to live on her own, and naturally adopted the larger room. At that point, the defendant then, in effect, negotiated a reduction of rent with her landlord, Mrs André. It is her evidence, which I accept, that she told Mrs André she could not pay as much as when there were three in the flat. Mrs André, in effect, agreed to a rent reduction. The claimant says that the change in the amount payable was because she was changing rooms, but on the defendant’s evidence I accept that this was not the case. This arrangement was made between the defendant and the claimant’s mother at the time, and I conclude that the claimant’s evidence on this point is mistaken or possibly is wishful thinking.27. The defendant and Mrs André did have a working relationship. The defendant agreed to allow her landlord to receive rent for the box room which she was not using. The condition was that the room should be let to someone the defendant chose. The claimant says that this is evidence that the defendant knew and accepted that she was only entitled to occupy the big bedroom and share the common parts. I agree that this is a possible explanation, but it is not, on my knowledge of the facts and the evidence which I have heard, the most likely explanation. The defendant could just as easily have been entering into a good faith agreement to help encourage her landlord to allow her to stay on at the property and accept less rent. She acted in good faith by allowing the occupier of the room to pay money to Mrs André direct. The defendant is not penalised for being co-operative in this way. This arrangement is not, as a matter of law, inconsistent with her right to occupy the room in her capacity as the statutory tenant, as she just does not lose her statutory tenancy by a sub-letting arrangement. The authority for that is Barclays v Cathadoneus, which is a Queens Bench case decided in 1954.28. It is my finding, based on the evidence, that this same arrangement was repeated with Mr André. He has produced no document or evidence to say that the flat was let as two separate rooms. To the contrary, the assured shorthold tenancy which he asked Ms Robinson to sign in 1998, did not simply mention the large room. It is confusing that the two sub-tenants, namely Mr Lacey and Mr Kennedy, signed agreements with Mrs André and then with Mr André, but I put it no higher than that. Ms Robinson was the holder of the statutory tenancy, which was not diminished by her good faith agreement with the landlord. I have no evidence that either Ms Robinson, Mr André or indeed Mrs André, approached this matter in a legalistic way. They all appear to have acted as people in good faith, and I find that the sub-letting arrangement was not intended to reflect a new legal agreement between the landlord and the tenant, Ms Robinson.”[7]This is not an entirely pellucid set of conclusions. The introduction of two successive occupants into the small bedroom, each paying rent directly to Mrs André, could have been indicative of the title to the room having reverted to Mrs André had there been any other evidence that it had done so. But their occupancy was equally consistent with their being subtenants or lodgers of Ms Robinson, introduced (as was at least civil, and arguably legally necessary) with Mrs André’s agreement. Their payment of rent directly to Mrs André, while unusual, need have been no more than a convenient way of contributing their share to Ms Robinson’s rent. In this amorphous legal situation, the judge’s findings of fact were critical. Her description of the setup as a good faith arrangement and of the two successive residents as occupiers is inconsistent with a surrender and regrant, and consistent with a consensual introduction of another temporary occupant as licensee or lodger into Ms Robinson’s two-bedroomed flat. If there was in law a subletting, as the judge then described it (that is to say, a parting with possession) it can only have been between Ms Robinson and the two successive occupants of the small bedroom. Neither analysis would have been inconsistent with an arrangement that the extra occupant paid what he was contributing to Ms Robinson’s rent direct to Mrs André. The important thing is that on neither analysis had Ms Robinson parted with possession of the small bedroom to Mrs André.[8]It has therefore been Mr Manning’s necessary endeavour in argument before us on Mr André’s behalf to show that the factual situation found by the judge amounted in law to a surrender of the whole and a regrant of part, namely the whole less the small bedroom to Ms Robinson. His case is that the rent reduction found by the judge was consistent and commensurate with a parting with possession of one room in the flat and that Mrs André’s direct receipt of money in consideration of someone else’s occupancy of it, albeit someone introduced by Ms Robinson, pointed the same way.[9]It is worth looking, as Mr Manning invited us to do, at Ms Robinson’s witness statement which she adopted as her evidence: “6. At some time in 1995 Mr Williams and Ms Malone left the flat. I continued as sole tenant with the whole of the flat to myself. Around this time, Mrs Andre told me that she wanted a higher rent for the flat. Thereupon I started making payments of £250 per month in arrears to Mrs André. 7. In or around early 1996 Mrs André indicated to me that she wanted to receive yet more rent for the flat. I stressed that I could not afford to pay any more than £250 a month. However, I did offer to try and find a flat mate which would increase the payment Mrs André received every month. At some time after this I arranged for a friend of mine, Mr Mike Lacey, to move into the flat and use the small bedroom in exchange for entering into a separate written agreement with Mrs André. At the time my Defence was drafted I could not recall, if I ever knew, how much Mr Lacey paid to Mrs André. However, I have since seen a copy of an Agreement dated 1 September 1996 between Mrs André and Mr Lacey for a term of six months from 1 September 1996 at a rent of £175 a month payable in advance by equal payments on the first day of each month commencing 1 September next. The description of the demised property is ‘sharing a flat at 42 Hertford Road N2’. There is no mention of Mr Lacey being a tenant of the small room or indeed any particular part of the flat. The document appears on face value to have been drafted to include my involvement in the agreement, however, this was not the case. At some time in 1997 Mr Lacey left the flat”.[10]Mr Manning quite rightly has placed no reliance either on this parol evidence or on the front sheet itself, which we are told has survived, since it is manifest that Ms Robinson was no party to it. She was, however, cross-examined about her witness statement. She explained, as her solicitors have confirmed, that the figure of £300 in paragraph 5 of the defence document was a typing error for £200. Her cross-examination included this passage:
“Q. We’ll come back to that in a moment, but if I can take you back to the time when you moved from the small room into the large room. You agreed with Mrs André, didn’t you, that you’d pay a rent of £250 for the large room? A. It was £250 for the whole flat. Q. I suggest that it was for the large room only. A. No, that’s not right. Originally it was £200, which we were all paying, and because I suppose I wanted to live on my own, I offered to pay £250 for the whole flat.” … “Q. Now, again in 1996, you agreed with Mrs André that you’d help her to find someone to occupy the small room? A. I offered to.”
A. I offered to.”[11]I pause here because the suggestion made by Mr Manning was that this demonstrated that it was Mrs André who was repopulating the small bedroom, and was consistent therefore with her having resumed possession of it. However, if the emphasis in the sentence “I offered to” was on the word “I”, then the meaning would be rather different; and if one looks at the judgment of Judge Pearl, which I have quoted in its material part, one sees that that is how she understood Ms Robinson’s evidence.[12]Continuing with the questioning:
“Q. He paid Mrs André £173 a week [it should be £175 a month]. A. I don’t know what -- what he paid her. That was an arrangement between them. Q. You don’t know, because this arrangement had nothing to do with you. A. No, it was -- it was something that they agreed together, but I knew that he wasn’t going to be there for very long, and he was a sort of person who, to be honest, spent a lot of time with his parents, so I knew he wouldn’t be cooking and he wouldn’t be in my way”. … “Q. And again you agreed with Mr André this time, that you’d help find someone else to live in the small room. A. Yes, I suppose I did. Q. And you found Mr Kennedy? A. Yes.” … “Q. But he never -- Mr Kennedy didn’t have any agreement with you to live in that small room? A. No written document, no. Q. And he didn’t make any payments to you -- A. No. Q. -- for being in that small room? A. No. Q. And you didn’t go in the small room while Mr Kennedy had it, did you? A. No.”
Q. And you found Mr Kennedy? A. Yes.” Q. And he didn’t make any payments to you --

Q. -- for being in that small room?

[13]I do not consider that this case, first of all, can be determined by reference to the rent levels. Parties may agree to vary the rent in a variety of ways and for a variety of reasons. Here it is clear that Mrs André wanted more rent than Ms Robinson could afford, and that they agreed that this should be provided by Ms Robinson bringing in someone to occupy the smaller bedroom who would contribute directly to the rent. The rent on this view was to be the aggregate of what she and he paid to Mrs André. None of it required a surrender of the small room to Mrs André and a reletting of it by her. As it happens, the judge may have overlooked the evidence and mistaken what had happened to the rent in and after 1996, but it was in my judgment of no legal consequence. The dialogue and witness statement which I have quoted do not carry the picture beyond that which the judge herself found.[14]Mr Manning’s difficulties do not end here. He had and still has no intelligible case about the terms of the regrant upon which his claim is predicated. Assuming for the moment a surrender of the whole, what was it that was relinquished by Ms Robinson and that reverted to Mrs André on the regrant? Mr Manning discovers the box room alone, in spite of its being all that is claimed. He asserts that Mrs André was able to and did, and that her son in his turn now can, not only occupy or let the small bedroom but can exercise or confer occupancy rights over the bathroom, kitchen, toilet and living room. What then is the nature of those rights? we asked Mr Manning. Are they joint rights of possession or an easement of use or a licence to make use of the other rooms? Mr Manning’s answer was that it should be inferred to be that which least interfered with Ms Robinson’s rights, namely an easement or licence to make use of the whole of the flat bar the larger bedroom. But one looks in vain for any evidence, much less any finding, that this much was placed in Mrs André’s power to grant. The fact is that until today no thought had been given to it at all.[15]Although a certain amount of authority has been assembled for the purposes of the appeal, none has had to be referred to, since Mr Manning accepts that it concerns uncontentious principles of law. The issue before the judge and before us is how these operate on the not altogether usual facts found by the judge.[16]In my judgment, the judge’s findings of fact establish no arrangement which in law effected a surrender to Mrs André of the whole and a regrant by her on ascertainable terms of part only of the flat to Ms Robinson. To produce that result there would have had to be an unambiguous act or series of acts, in writing or by conduct or both, by which Ms Robinson gave up possession of the flat and Mrs André on its reversion to her separately let the small bedroom directly to others and the remainder of the flat again to Ms Robinson. The history fails to support such an occurrence either in fact or in law, and the want of any intelligible terms for the possession or occupancy or use of the rooms other than the two bedrooms speaks (in my view) firmly against it.[17]In my judgment, HHJ Pearl came to a factually tenable conclusion with legal consequences which she correctly analysed as giving the claimant no right to possession of the small bedroom. She rightly dismissed the claim, as I for my part would dismiss this appeal.[18]I agree.[19]I also agree.

Order

Appeal dismissed