High Court of Justice in Northern Ireland Chancery Division Decisions

1. This case raises a number of important issues on the nature of a right of residence and the extent of the rights thereby created or reserved. Although the granting and reserving of rights of residence is a common feature of Irish agricultural land transactions and is a tribute to the Irish sense of family obligation the precise nature of such rights has long been a matter of judicial and academic debate. In resolving the issues in this case it is necessary to attempt an analysis of the rights.

2. The plaintiff and her late husband William Jones Senior (“the deceased”) were married in the early 1940’s. Early in their marriage they decided to buy a farm of land near Templepatrick, County Antrim which they then farmed. Their farming activities were successful and over the years they acquired further land, eventually owning a land holding of some 90 acres. They built a substantial farmhouse at 28 Rickamore Brae, Templepatrick (“the house”) and moved into that house some 40 years ago. They brought up a family of six children on the farm but only one child wanted to carry on farming, namely their son William Jones (“William”), the first defendant. He worked hard with his parents in helping to run the farm and early in 1980 the deceased, with a view to retiring, decided to transfer the farming stock and equipment to William. In 1983 William indicated to his parents that he was minded to sell the stock and equipment unless the land itself was transferred to him. The deceased agreed to transfer the lands to him and a form of agreement was entered into and signed on 11 November 1983. Clause 1 of the agreement provided –

3. Under clause 2 it was provided that the deceased agreed to execute all documents necessary to give effect to the agreed transfer and to give up “clear vacant possession of all outhouses and buildings necessary for the proper running of the farm when required by the said William Jones Junior and to retire from all activities relating to the running of the farm.” By clause 3 William agreed to pay all rates, taxes and outgoings in respect of premises and maintain them in good and tenable order and condition. The deceased agreed to maintain the insurance for his contents of the dwelling and to pay all charges for telephone and heating.

4. At the time the parties entered into the agreement William was living in a separate dwelling house which he had built in 1980 close by number 28 Rickamore Brae. The plaintiff and the deceased lived on their own in the house and it would appear that they owned all the contents, furnishings and fittings therein.

5. The agreement was carried into execution with the transfer being registered on 11 February 1985. The right of residence referred to in the agreement was registered as a burden on Folio 9238 County Antrim in the following terms –

6. The right of the plaintiff and her late husband to be paid £200.00 per month was also registered as a burden on the land but that burden was subsequently cancelled. Mr Maxwell on behalf of the plaintiff in the course of the proceedings conceded that the plaintiff was not claiming to recover any further payments on foot of the agreement in that regard.

7. Following the 1983 agreement the plaintiff and the deceased continued to live in the house on their own, treating it as their home and maintaining its interior with William looking after the exterior. The deceased died in May 1997 and the plaintiff remained on in the house on her own.

8. As the plaintiff aged her health deteriorated. She had a heart attack in 1994 and she required much care and attention which was provided by William’s wife Florence. Subsequently in 1998 she developed complications which turned out to be an oesophageal leak, a serious condition which required hospitalisation, firstly in Belfast City Hospital and then at Antrim Hospital. She was released from hospital in December 1998 on the basis that she would require 24 hour a day care and attention. Again the whole burden of that care fell on Florence. William and Florence moved into the house to be on hand to care for the plaintiff. However, on 16 December 1998 Florence’s health broke down. She suffered a nervous breakdown and she could no longer look after the plaintiff.

9. The family entered into discussions as to the best way of dealing with the crisis. On 16 December 1998 there was a meeting at which the plaintiff and her children discussed the future. Everyone agreed that the plaintiff would have to go into a nursing home for a short period of time for respite care. She went into Shushma Nursing Home in Antrim which the plaintiff initially greatly resented, describing the Home as a prison. It appears however that she began to settle in, though she always wanted to get home to the house. As a result of the care she received in the nursing home her health improved, though she continued to require much care and attention. William considered that the Home was the best place for her. Neither he nor any other member of the family was prepared to provide the 24 hour care required and William frankly considered that his first priority was his wife’s health.

10. The plaintiff’s care was reviewed in January 1999 by the social workers. It was considered that the plaintiff still required considerable care which the family could not provide and social services were unable to provide the level of care required. In February 1999 the social workers contacted William about arranging a home assessment at the house itself. According to the social worker’s notes William phoned the social worker on 12 February 1999 saying that the home assessment could go ahead at the house so long as they were not in the house too long. He felt that home assessment was not appropriate as the plaintiff was not going to return home on the conditions that William was proposing to lay down. He was not prepared to allow his brothers Andrew or Archie to stay in the house overnight. When the social worked pressed him, he said that the Trust would be responsible if the plaintiff insisted on staying on in the house. The Trust considered that it could not take the risk and decided against a home assessment. In the result the plaintiff remained in the home although clearly wanting to return to the house.

11. There was dispute between the parties as to whether William withheld the key of the premises from the plaintiff. The plaintiff gave her set of keys to her son when she went into the home. She said on her evidence that when the home assessment arrangement fell through the social worker told her that she could not get the key. At a later stage the plaintiff went back to the house one day in April to collect some belongings. On that occasion she said that William followed her around the house and made her feel uncomfortable. She said that she asked for the key but William refused saying that she would never be back in the house. She said that after she put the matter in the hands of her solicitors William turned up one day at the home and threw the keys at her but the plaintiff refused to take them saying it was a matter for the solicitors to sort out.

12. Andrew Jones, a brother of William, gave evidence that at the meeting the family held William said that he would hold the key and that if she wanted into the house it would be a matter for him to let her in.

13. William for his part said that whenever the plaintiff left the house she left the key with him. When she went into the nursing home she gave him the key. He told her that the key would be there anytime she wanted it. William did not want anyone else to gain access to the house without his permission. He referred in particular to an incident in 1994 when he found his brother Archie “rummaging” in the premises. He said that when the proceedings started he took the key down to the plaintiff but she refused the key and said it was a matter for the solicitors. It was his case that this direct offer of the key was in November 1999 before proceedings were actually issued.

14. The correspondence between the parties must be considered in this context. In a letter of 2 April 1999 the plaintiff’s solicitors stated that the plaintiff now wished to return to the premises to exercise her right of residence without obstruction. William’s solicitors in their letter of 14 April 1999 accepted that she had a right of residence but said it was exclusive to herself and that William would not agree to anyone else residing in the dwelling house. Given all the circumstances it was his view that it was more appropriate that the plaintiff should be provided with care in a residential or nursing home on a 24 hour a day basis. In a letter of 6 May 1999 the plaintiff’s solicitors stated that she wanted to take up residence in the house as soon as possible and asked for the key to be forwarded immediately. It was not intended that anyone else should reside in the property although because of her health it may be necessary for someone to stay with her on an overnight basis on some occasions. On 24 May 1999 the defendants’ solicitors replied stating that the defendant had spoken to the plaintiff direct and received no indication that she intended to return home. On 8 June 1999 the solicitors replied stating that they had direct specific instructions that the plaintiff indeed wished to return home and asked for the key to be sent within seven days. They said that failure to do so would be taken as confirmation that the plaintiff was unwilling to send the key and the plaintiff would take such necessary steps as were required to enforce her right. There appears to have been no further correspondence until 5 November 1999 when the plaintiff’s solicitor demanded the key and in default possession would be issued without further notice. The keys were not sent and the action was issued on 15 November 1999. On 22 November 1999 the first defendant’s solicitors stated that the key was ready for collection and that the plaintiff did not dispute in anyway whatsoever the plaintiff had a right of residence.

15. Although proceedings had been issued and were ongoing William agreed to transfer the premises to his son William Jones (the second defendant) and his new wife whom he had married in September 1999 (the third defendant). The second and third defendants moved into the premises on 20 December 1999 and have continued to reside there since. They have carried out considerable internal changes in the premises, improving the kitchen and bathroom facilities. They have left intact the chairlift which had been installed for the benefit of the plaintiff.

16. The plaintiff in her original statement of claim asserted that although William had acknowledged in correspondence that the plaintiff had a right of residence in the premises William had thwarted her attempts to return to the premises and had refused to supply her with a key. She sought the declaratory relief that she was entitled to a right of residence during her lifetime and that the defendant had obstructed her right of residence and she sought an order that he deliver up the key of the premises and that he should be restrained from obstructing or thwarting her access to the premises. The defendant admitted that the plaintiff had a right of residence and he admitted the averment that she had gone into the nursing home for two weeks respite care. He denied that he had obstructed the right of residence or denied her access or refused her the key. In her subsequently amended statement of claim, following the plaintiff’s discovery that the premises had been agreed to be transferred to the second and third defendants and that they were residing in the premises, the plaintiff asserted that the possession of the premises by the second and third defendants was inconsistent with and contrary to her right of residence. It was also asserted that by reason of the wrongful acts and admissions of the defendants, the plaintiff had suffered and would suffer financial loss for which she sought reimbursement. During her stay at the nursing home the plaintiff sustained a weekly cost of £131.90 and a loss of £131.90 compared to her position if she were a resident in the premises was claimed though this takes no account of the fact that she was receiving her full keep in the home and was saved the expense of running the house. In the amended claim for relief the plaintiff sought an account or enquiry as to the sum due from the defendants and each of them but did not claim other general damages.

17. William in his amended defence denied that he had given possession of the premises to the second and third defendants without the knowledge and consent of the plaintiff and asserted that their occupation of the premises was not inconsistent with the plaintiff’s right of residence. It is to be noted that William had thus changed his position as compared to his earlier claim that the plaintiff was entitled only to occupy the premises on her own. He denied the claim for financial relief and reimbursement. The statement of claim by the plaintiff was further amended with the plaintiff claiming that she had an exclusive right of residence or alternatively that her right of residence was such that she was entitled to exclusivity in the occupation of the premises. She averred that the possession of the premises by the second and third defendants was inconsistent with and contrary to her right to reside in the premises. She claimed the declaratory relief but withdrew the claim for accounts and enquiries.

18. The second and third defendants in their amended defence likewise deny that the plaintiff is entitled to an exclusive right of residence and assert that their occupation of the premises is not inconsistent with the plaintiff’s rights. They aver that they are prepared to provide the plaintiff with a set of keys on the basis that the plaintiff is entitled to the property but not to an exclusive right of residence. They say that they are prepared to occupy the premises with the plaintiff. They also alleged that they incurred expenditure on the premises following representations and promises made by William at the time when they married, though they make no averment that the plaintiff had made any representations giving rise to estoppel.

19. The parties’ contentions followed closely the cases as pleaded in the finally amended form. Mr Maxwell on behalf of the plaintiff contended the plaintiff was entitled to an exclusive right of residence or alternatively was entitled to exclusivity of residence in the circumstances. When the right of residence had been reserved in the original agreement the plaintiff and the deceased were living in the premises and using all its contents and facilities on their own. To require the plaintiff to occupy the premises with others to whom she objected would be inconsistent with what was intended to be the reserved right. The plaintiff’s objection to being required to reside in the house with the second and third defendants was wholly understandable he contended, given the history of William’s thwarting of her return to the house and his decision to put the second and third defendants into the house behind her back and without her consent.

20. Mr Henry on behalf of William argued that the term “right of residence” was an established legal term with a legal meaning to which effect must be given. The parties intention must be found in the wording agreed and where the parties use a legal term of art effect must be given to it. In the absence of words of exclusivity this right was to be interpreted as a general rather than as an exclusive right. Since the plaintiff was only entitled to a general right of residence it was open to the first defendant and his successes entitled the second and third defendants to reside in the house and that would not be inconsistent with the exercise by the plaintiff of her right to reside there.

21. Mr McBrien on behalf of the second and third defendants followed the same line of argument. The plaintiff could not rely on the previous negotiations of the parties or their declaration of subjective interest to determine the legal effect of the right of residence. Mr McBrien also relied on the Property (Northern Ireland) Order 1978 arguing that the right of residence was an impediment to the enjoyment of the dwelling house, being a restriction falling within article 3(1)(a)(i). The court has a power to modify or extinguish the impediment or refuse to grant the plaintiff release relief because her interest is not materially affected by the alleged breach of her rights or because it would be unjust to make an order. In regard to the factors set out in article 5(5) Mr McBrien argued that this would be a proper case to refuse the plaintiff the relief sought if, contrary to the defendants’ primary contention, she was entitled to an exclusive right of residence in the premises.

22. As pointed out in a number of Irish authorities rights of residence whether on their own or combined with a right of maintenance are common in both parts of Ireland. (See for example the discussion by Johnston J in National Bank v Keegan [1931] IR 344 at 347, the Lowry Report and Registration of Title to Land in Northern Ireland (1967 Cmd 517 paragraph 97 and the helpful discussion on “Irish Rights of Residence – the Anatomy of an Hermaphrodite” (1970) NILQ 389). These rights are often created by testators leaving agricultural land, the testator wishing to give the widow or children the right to remain in residence during their lifetime or “during their day”. They are also reserved by donors following retirement from farming where the retiring farmer wishes to pass the land on to, for example, his son but retaining a right of residence for himself and his wife in the house “during their day”. Common though such rights are the precise legal nature and incidence of the interest thus created or reserved remains somewhat unclear and ill defined. In view of the commonness of such arrangements this is somewhat surprising. The very imprecision of the legal consequences of such rights and the consequences of perceived breaches of the rights will often result in families resolving their differences by means other than litigation where the outcome may be unclear. On occasions however amicable resolution of such disputes will not be possible and it then becomes necessary to determine the precise the legal rights of the parties, a task not rendered any easier by the unsatisfactory way in which the law in this field has been analysed and developed heretofore.

23. On appeal in the Supreme Court Kennedy CJ agreeing with Johnston J in his part on this point said:

24. In the majority decision in the Supreme Court the court held that the residential right was in this case in the nature of an exclusive variety and conferred an estate for life. Muraghan J dissented and concluded that notwithstanding the reference to an inclusive right the informality of the agreement was intended to confer a personal right and the agreement created a equitable charge on the premises both for residence and support.

25. The decision in that case is open to criticism on a number of grounds. The court seems to have ignored the consequence of the agreement being a voluntary one under hand. It seems to disregard the principle that equity will not assist a volunteer and that an informal right of land will not be construed as a declaration of trust. Furthermore, as I pointed out in Re Walker’s Application [1999] NI84 at 91:

26. Even if a person is given an exclusive right to reside in specified premises as opposed to a general right to reside in circumstances where others may also reside in the premises this in my view falls short of creating a life interest for the purposes of the Settled Land Acts 1882-1890 since the beneficiary of the right has a limited right to be on the premises and the right has none of the other incidents of a life interest capable of creating a life interest for the purposes of the Settled Land Acts.

27. In the Republic the Oireachtas in the Registration of Title Act 1964 sought to insulate registered land from the anomalous effects of the decision in National Bank v Keegan . Section 81 provides:

28. In Northern Ireland the Lowry Committee on Land Registration considered the changes in the Republic under the 1964 Act stating:

29. “We are in some doubt as to the exact effect of this provision and in particular as to whether it gives the owner of the land the right “to buy out” the owner of the right of residence without the latter’s consent. In our view the owner of the land should not be able buy out the owner of the right of residence unless he can obtain the agreement of the person being bought out and we think that any amendment of the law should make this point clear. We do not think that a farmer testator would normally intend to give his son the right to put the testator’s widow out of the farmhouse on payment to her of a sum of money even if fixed by a court of law as fair and reasonable. At the same time we recommend that a right of residence in or on registered land whether it be a general right of residence on the land or an exclusive right of residence in or on part of land should be made personal to the person beneficially entitled to the right and should take effect as a registerable burden on the land not as a life estate in it or in part of it. Lest there should be any doubt on the point we wish to make it clear however that we are not referring to a case in which there is an exclusive of right of residence in or on the whole of the land in any given holding. In such a case the intention of the testator or settler presumably is that the person beneficially entitled to the right of residence is in effect to have a life estate in the holding.”

30. For the reasons set out in Re Walker I respectfully consider that the last sentence in that passage is open to question.

31. A consideration of the Irish authority shows a somewhat incoherent and confused analysis of the rights of residence with statements of principle arrived at by a flawed generalised interpretation of specific cases turning on their own terms and clauses in particular instruments. In particular the analysis that a general right of residence is in the nature of a lien which is the accepted thesis of section 42 of the Statute of Limitations (Northern Ireland) 1958 (now article 40 of the Limitation (Northern Ireland) Order 1989) flows from giving a general application to the specific decision in Kelaghan v Daly . Nowhere in his judgment does Boyd J say that a right of residence of any variety is a right in the nature of a lien for money’s worth. Nor is there anything in the nature of a right to reside per se in a particular house or room that equates to the ordinary understanding of a lien.

32. Professor Harvey in his article concluded with some hesitation that the proper analysis of a right of residence is that it is a kind of licence. The development of the law in the field of licences since that article has vindicated this approach. Licences may assume various forms and perform a multiplicity of purposes. The overlapping categories of licences recognised by the law include bare licences, contractual licences, equitable or irrevocable licences, licences based on preparatory estoppel and licences coupled with the grant of an interest. The precise proprietary context of each licence varies with the category concerned.

33. A contractual licence which derives its force from some contract express or implied differs from a bare licence in that it is not granted voluntarily but is founded on valuable consideration moving from the licensee. As pointed out in Gray’s Elements of Land Law 3 ^rd edition at 171:

34. It is now clear that in appropriate cases the court will protect the contractual licence by injunction or specific performance. Thus as Roskill LJ stated in Verrall v Great Yarmouth Borough Council [1980] 1 AER 839 at 847:

35. The modern willingness of the court to protect contractual licences by equitable relief in effect confers on the licensee a quasi-proprietary interest in the land beyond a mere personal interest to use the land in common with others (see the Australian Federal Court in Federal Airports Corporation v Makucha Developments Property Ltd [1993] 115 ALR 697 at 700).

36. The right of residence in favour of the deceased and the plaintiff reserved by the agreement can fairly be viewed as a form of contractual licence reserved by and granted back to the plaintiff and her husband. In reality it was an integral part of the agreement for the transfer of land to William by the deceased. During the lifetime of the deceased and the plaintiff it was an irrevocable contractual licence to reside in the premises which the court would protect by injunction or specific performance if appropriate. No issue arises in this case as to whether the right was binding on successors in title. Being a registered burden the second and third defendants took with notice of it and do not challenge that they are bound by it.

37. Being in the nature of a contractual licence it is a matter of construction of the agreement set in its proper context as to what contractual rights it conferred on the plaintiff and the deceased. Although the plaintiff was not a party to the contract it was clearly intended to benefit her and she can rely upon it in reliance on the Law Reform (Husband and Wife) Act (Northern Ireland) 1964.

38. The defendants relied strongly on the proposition that the term “right of residence” is a legal term of art with a known and defined meaning. In the absence of the words of exclusivity it is argued that the words fall to be construed as a general right to reside in the premises. In fact the term “right of residence” is not a legal term with a clear and precise meaning (as is demonstrable from an analysis of the authorities). An analysis of the Irish case law shows a considerable variation in the way in which the parties express a right of residence which is being conferred or reserved. I do not read National Bank v Keegan as authority for the proposition that in the absence of words of exclusivity a right of residence falls to be construed as a general right. The nature and extent of the right must depend on and be interpreted in the light of the factual context and in the light of the whole agreement.

39. In the present case clauses 2 and 4 are relevant. Clause 2 necessarily recognises that the deceased was not giving up vacant possession of the dwelling house itself since it was not an outhouse or a building necessary for the proper running of the farm. Clause 4 recognised that the deceased was going to retain all the contents in the house and that he would be heating the house and using the telephone exclusively. This points in the direction of the parties’ understanding that the plaintiff and the deceased would be the persons living on their own in the house. The fact that the deceased and the plaintiff were retaining their own chattels and fittings and fixtures in the house is a strong indication that the house was intended for their own personal use. Third parties including the landowner himself would have no right or permission to use the furnishings and fittings in the house in the absence of the agreement of the persons entitled thereto.

40. A contractual licence may in appropriate circumstances attract implied terms. Terms can be read into a contract by implication from the parties’ conduct and expectations and courts are generally willing to imply such terms as are required to make the contract workable or to give it business efficacy. Some kinds of contractual licence contain an implied undertaking by the licensor to afford quiet enjoyment to the licensee (see for example Smith v Nottinghamshire County Council (1981) Times 13 November. See Gray (op cit) at 173). It would thus be obvious, for example, in the present case that William would not be entitled to frustrate the right of residence by insisting on the storage of noxious materials in the house nor could he lock the licensees out of the house and thereby prevent them from enjoying the right to reside in the house.

41. In this instance it was argued that on its true construction the right of residence would not preclude William or his successors in title from residing in the house alongside the licensees and by doing so he or they would not infringe the plaintiff’s right to reside in the house. On the construction of this agreement set in its context I hold that the defendants are not entitled to reside in the house alongside the plaintiff in the absence of her consent. Firstly, having regard to the express contents of the agreement to which I have referred I hold that the agreement envisaged that the plaintiff and her husband would occupy and reside in the house on their own. Secondly, in construing such an agreement it is appropriate to take into account the full facts of the situation as it was at the time when the agreement was entered into. The quality of the licensees’ actual residence at the time of such an agreement must be a relevant factor. Had William been residing in the house at the time with his parents a reservation by the deceased of a right of residence in the house would fall to be construed in the light of that factor. As it was the deceased and the plaintiff were living in the house on their own. The first defendant frankly stated that he did not consider that he had any right to impose a lodger on the plaintiffs or reside in the premises himself without the consent of the plaintiff or deceased during his lifetime. Although the house is quite large it is one domestic unit. To require the plaintiff against her will to reside in the house with other parties who have entered the house without her knowledge and approval would be to subject the plaintiff to tensions and inconveniences inconsistent with the right to reside in the premises as contemplated at the time when the agreement was entered into.

42. I do not consider that there is anything in the Property (Northern Ireland) Order 1978 which in the circumstances would justify the court in rewriting the terms of the agreement freely entered into between William and his parents in 1983. If the right of residence is viewed, as I think it should be in the circumstances, as a licence granted by William to his parents to occupy the house as their dwelling I do not consider that it qualifies as a restriction for the purposes of article 3 of the 1978 Order. Even if it did none of the factors in article 5(5) in the circumstances point in favour of a radical redrawing of a licence to reside freely and contractually agreed by the parties.

43. The plaintiff in the circumstances accordingly has a right to reside in the premises during her lifetime on her own and the second and third defendants are not entitled to reside therein without her consent. The second and third defendants can set up no proprietary estoppel or other right to occupy the premises since the plaintiff did not by any conduct or representations on her part represent that the second and third defendants would acquire an interest by virtue of expenditure on the premises.

44. When in residence the plaintiff would be entitled to permit third parties to come unto the premises to stay overnight to provide care and assistance if that is necessary for her to enjoy the benefits of the right of residence conferred by the agreement.

45. I further hold that the first defendant in effect did deny the plaintiff her right to reside in the premises by retaining the key. I am satisfied that the first defendant was convinced that it was not in the interests of the plaintiff or the rest of the family for the plaintiff to return to live in the house since she was being well looked after in the nursing home. However, his interference with the plaintiff’s right of residence by failing to hand over the key until late in the day did not in my view lead the plaintiff to sustain any demonstrable financial loss since she was receiving the benefit of full care and keep in the nursing home and she would have had to pay for her keep and care while living at the house. The plaintiff did not in these proceedings claim any general or other damages apart from the claim for reimbursement which I have rejected. In any event the plaintiff made clear that she was not in reality interested in pursuing a money claim.

46. In the result the plaintiff is entitled to the declaratory relief that I have indicated. I will not at this stage grant injunctive relief since the parties may be able to resolve future difficulties by agreement in the light of the declaratory relief which I am granting. I shall, however, give the parties liberty to apply in case it becomes necessary for the court to grant further relief.

47. This decision is based on a legal analysis of the agreement. The best interests of the plaintiff may not be served by her returning to the house in the manner that she envisages. The real problems raised by this case are not legal problems. The court’s determination of the plaintiff’s contractual rights in no way deals with the very real practical problems which may arise if and when she returns to live in the house to exercise the rights which I have declared. The conduct and outcome of this litigation will not in themselves assist in dealing with these problems and in fact may exacerbate the situation. I acquit the defendants of any base motive in their actions. I am sure that after reflection the plaintiff will recognise this and bear in mind all that William and his wife did for her during the years in the difficult circumstances which arose out of the plaintiff’s ill health. The fact that the plaintiff is now in better health and somewhat fitter than she was is in no small measure due to William and his wife and+ due to the level of care provided in the Home where she currently resides.

48. Finally, I would reiterate the comments which I made in Re Walker’s Application [1999] NI 84 at 92 where I pointed that those concerned in the drafting of instruments creating rights of residence should fully address their minds to the precise nature of the interests that they wish to create. Confusion and difficulty would be avoided if those drafting such agreements or documents thought through the question as to the precise interest they wish to create.