England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 22nd February 2002

1. LORD JUSTICE JONATHAN PARKER: This is a renewed application for permission to appeal made by Mr Paul Longford, his wife Mrs Samantha Longford and his father Mr Roger Longford, the defendants in the action, against an order dated 14 January 2002 made by His Honour Judge Rundell, sitting at Walsall County Court. By his order the judge ordered the applicants to give possession of a house called Meon View situated at New Buildings Farm, Broad Marston to the claimants in the action, Mr Timothy Longford and Mr Mervyn Longford. I refused permission to appeal on the papers on 24 January 2002.
2. The applicants are represented on this application by Mr William Batstone.
3. Following the example of the judge, I will refer to the parties by their Christian names, without intending any disrespect by so doing. Roger is the brother of Timothy and Mervyn. Paul is Roger's son. Samantha is Paul's wife. As is apparent from the title to the action and the relationship of the parties, the judge's order represents a stage in a long-running and extremely unfortunate family dispute within the Longford family.
4. The central issue in the action was whether, in the events which have happened, the applicants had any right to continued occupation of Meon View. The judge concluded, as a matter of construction of the relevant document (to which I shall refer later), that the only relevant right was a right for Roger personally to occupy Meon View. However the judge found as a fact that Roger had ceased to occupy Meon View (the current occupants being Paul and Samantha) and that Roger had no intention of returning. Accordingly, the judge made the order for possession. The judge's findings as to Roger having moved out of Meon View for good are not the subject of challenge.
5. Before referring to the relevant document, I must first summarise the factual background. The story starts with Mr Hedley Longford, Roger's grandfather. Hedley had two children, Jeffrey (Roger's father) and Ronald. Hedley owned two neighbouring farms, New Buildings Farm (on which is situated Meon View, which was built in about 1947) and Priory Farm, which includes a bungalow called The Priory. Hedley farmed both farms together with his sons Jeffrey and Ronald. In 1965, Hedley granted a 21-year lease of New Buildings Farm to Jeffrey and a similar lease of Priory Farm to Ronald. Jeffrey was at that time living at Meon View and Ronald was at that time living at The Priory. Shortly thereafter Jeffrey moved out of Meon View, which was let out of the family for a period of some two years. In 1970, however, Roger moved back into Meon View. At that stage Jeffrey and his three sons (Roger, Timothy and Mervyn) were farming New Buildings Farm (together with another farm called Alveston Hill Farm) together in partnership. Hedley died in 1973, and by his Will he left the freehold of both New Buildings Farm and Priory Farm to his three grandchildren (that is to say Roger, Timothy and Mervyn) in equal shares, subject to life interests in favour of his sons Jeffrey and Ronald.
6. The transactions which have given rise to the dispute as to the applicants' rights (if any) in Meon View took place on 31 May 1984 and 1 June 1984. Immediately prior to those transactions, the position in relation to the ownership of the two farms (New Buildings Farm and Priory Farm) was as follows. The freehold in each of the farms belonged beneficially to the three brothers (Roger, Timothy and Mervyn) subject to life interests in favour of their father Jeffrey and their uncle Ronald. The farms were subject to subsisting leases in favour of (in relation to New Buildings Farm) Jeffrey, and (in relation to Priory Farm) Ronald. By a lease dated 31 May 1984 in which the freeholders were joined as parties, Ronald let Priory Farm to Jeffrey on a yearly tenancy. By clause 2 of that Lease there was excepted and reserved for the benefit of Ronald so long as he wished to exercise them certain rights and privileges set out in the Schedule to the Lease. Paragraph 1 of the Schedule is in the following terms:

"The right to exclusive occupation of the farmhouse on payment of rates and water charges but without liability for rent or repairs."

7. The reference to the farmhouse is a reference to The Priory.
8. On the following day, 1 June 1984, by a document described as an Underlease, Jeffrey let Priory Farm on a yearly tenancy to Roger. By clause 4 of the Underlease Roger covenanted with his father Jeffrey to observe the reservation in favour of Ronald contained in the Lease to Jeffrey. Clause 5 of the Underlease is central to the present dispute. It reads as follows:

"Jeffrey covenants with Roger that so long as Ronald remains in occupation of the farmhouse at Priory Farm Roger shall be entitled to occupy Meon View (as now occupied by him) on payment of rates and water charges but otherwise without liability for rent or repairs."

9. As at 1 June 1984 Roger was living at Meon View. However in 1994 Roger left Meon View for good (as the judge found in the finding to which I referred earlier) and Meon View has since been in the occupation of Paul and Samantha.
10. Jeffrey has since died, and it appears that his tenancy came to an end.
11. In the action, Timothy and Mervyn claim that on its true construction clause 5 of the Underlease granted to Roger no more than a licence to occupy Meon View as his home and principal residence, for so long as Ronald should remain in occupation of The Priory. They go on to allege that Roger vacated Meon View in about 1994 and that Meon View has since been occupied by Paul and Samantha. On that footing, Timothy and Mervyn, as two of the three freeholders beneficially entitled, claim possession of Meon View as against Paul, Samantha and Roger. By their Defence, the applicants contend that the rights granted to Roger in respect of Meon View by clause 5 of the Underlease are "equivalent to those he would have enjoyed in respect of the farmhouse at Priory Farm were it not for the rights reserved to Ronald". In other words, it is asserted that clause 5 of the Underlease had the effect of conferring on Roger the status of tenant of Meon View just as if Meon View had been included in his agricultural holding at Priory Farm.
12. In the course of a long and careful judgment, the judge set out in detail the history of the various dealings with the land which I have just summarised. At page 8 C of his judgment the judge identified the principal issue for decision as being the true construction of clause 5 of the Underlease. Before turning directly to that issue, however, the judge made a number of findings of fact. Firstly, he found that the arrangement whereby Roger was permitted to occupy Meon View was never intended to be permanent but merely temporary. Secondly, he found that Roger had left Meon View and that it was no longer his home. He went on to find that Timothy and Mervyn did not realise that Roger had moved out for good until some time in 1999, that finding being relevant in the context of a defence of estoppel which was sought to be raised. The judge further found as a fact that -

"There was no intention on the part of any party to create a relationship of landlord and tenant insofar as Roger's occupation of Meon View was concerned; it was a family arrangement. It was to ensure, so far as was possible, that the property was kept out of the hands of predatory divorce lawyers."

13. Lastly, for present purposes, the judge found that The Priory was no longer Ronald's home and had not been his home for many years.
14. Against the background of those (and other) findings of fact, the judge approached the crucial question of construction of clause 5 of the Underlease. In the result, he concluded that that clause conferred on Roger a right of personal occupation only. In reaching that conclusion, the judge was influenced by a statement by Jeffrey in a Lease of New Buildings Farm executed one year after the Underlease, in which Jeffrey referred to the rights granted by clause 5 of the Underlease, as a right "to house" Roger in Meon View. The judge regarded that description by Jeffrey of the right granted by clause 5 of the Underlease as being "the key to the construction of clause 5 of the Underlease." The judge continued:

"I find that it is more likely than not that the words were intended to mean that the right granted to Roger in respect of Meon View was limited to the right to use his house as his home, that is to say as his principal home, with his family, but that if he left permanently, as he has done, the right to use the house would cease."

15. The judge also focused closely upon the words "(as now occupied by him)" in clause 5 of the Underlease as being of significance in construing the clause. The judge then continued (at page 14 A):

"If I had taken the alternative approach, that is that the words"

16. I interpose to say that he is here referring to the words in parenthesis which I have just quoted

"were not intended by the parties to mean anything at all and ignored or treated them as meaningless, I would have reached the same conclusions. I would have come to the conclusion that `occupy Meon View' means to live there as his house or as his home and again I would find support in the drafting of clause 2 of the 1985 lease."

17. In support of the application for permission to appeal Mr Batstone submits that the judge fell into error in his construction of the clause. He submits that when one looks at the various transactions in the round, and adopts a purposive approach to the construction of the crucial provision, it is at least arguable that, when taken in that context, clause 5 of the Underlease gives Roger more than a mere personal licence to occupy Meon View. He has referred me to a letter written by Timothy and Mervyn to Roger, dated 23 October 1995, in which they say:

"In simple terms Meon View has been substituted for the bungalow,"

the reference to the bungalow being a reference to Priory Farm. Mr Batstone submits that, when one considers all the circumstances in the round, that is the conclusion one should reach. He submits that Meon View took the place of The Priory as, in effect, the house forming part of Roger's agricultural holding and, in that respect, he is to be regarded as having the rights of an agricultural tenant in relation to Meon View.

18. Mr Batstone has also submitted that an alternative ground of appeal, namely that the right in question amounted to a licence which has not been terminated, is a ground which has a real prospect of success on the footing that no notice was ever given terminating Roger's rights of occupation in respect of Meon View.
19. Despite Mr Batstone's helpful submissions, I am not satisfied it is arguable that the judge fell into error when he construed clause 5 of the Underlease. It seems to me, on the contrary, that the judge's conclusion that the clause confers no more than a personal right of occupation on Roger is plainly right. Taking full account of the seriousness of the position of Paul and Samantha and their children if the possession order stands, I cannot see how clause 5 of the Underlease can mean anything more than that Roger is entitled personally to occupy Meon View so long as he wishes to do so. That seems to me to be the plain meaning of the clause. True it is that the clause was directed at achieving some degree of equivalence between the rights of Roger in relation to Meon View and the rights of Ronald in relation to The Priory, but it does that by reference to "occupation" which, in context, seems to me plainly to mean personal occupation. That seems to me to be a decisive factor. I do not find it possible to construe a right of occupation as being equivalent to the rights of an agricultural tenant.
20. As to Mr Batstone's submissions in relation to the termination of a licence, I do not find that to be a tenable argument. It seems to me that Roger's rights of occupation were spent when he moved out of the property. It follows that the proposed appeal has no real prospect of success and I, accordingly, dismiss the application.
Order: Application refused