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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kerr v Stephens  EWCA Civ 187 (15 February 2006)
Cite as:  EWCA Civ 187
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWPORT (ISLE OF WIGHT) COUNTY COURT
(MR RECORDER CRAMPIN QC)
B e f o r e :
LORD JUSTICE JONATHAN PARKER
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MS B HARRIS (instructed by Messrs Biscoes, 15a Somerset House, Hussar Court, WARTERLOOVILLE, PO7 7SG) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
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"Further or in the alternative, it is averred that any statutory tenancy survived only if and for so long as the Claimant occupied the Property as her residence. It is averred that the Claimant has not at all material times occupied the Property as her residence and accordingly it is denied that she now enjoys the benefit of the alleged tenancy or any tenancy thereof."
Based upon that allegation, Mr Kerr counterclaims for possession of the property.
"Paragraph 4(b) of the Defence and … Counterclaim is denied. It is the Claimant's case that the Defendant told the Claimant that he intended to institute a series of works to improve and renovate the property and that in order for him to do so it was necessary and desirable for the Claimant to temporarily move out. In fact, the Claimant has returned daily to the property since that time notwithstanding that the vast majority of her furniture, chattels and contents have been removed or placed in store. Down to the date hereof the Defendant has failed to undertake any of the works of refurbishment he led the Claimant to believe would be undertaken."
- The property is an "elderly" property, with no central heating. Water heating is by an electric immersion heater. Any cooking has been done on a gas cooker in the kitchen. (Paragraph 9)
- Miss Stephens was born in 1953 and, until 1987 at least, lived continuously in the property. She has never been married and has no children. She enjoys a somewhat eccentric and unusual lifestyle. She had a close female friend who died in 1996, and she has a close male friend, Mr Raymond Trueman, who has been her friend for some 25 years. Mr Trueman apart, she has few friends. (Paragraphs 10 to 14)
- After her mother's death in 1987, Miss Stephens improved the garden of 6 Upton Road. (Paragraph 21)
- Mr Kerr became the owner of 6 Upton Road (together with number 5, which adjoins it) in 1993. At that time, Miss Stephens was in receipt of housing benefit. She also receives incapacity benefit. (Paragraph 23)
- Since he became the owner of 6 Upton Road, Mr Kerr has consistently maintained that Miss Stephens does not reside there. He said as much to the housing benefit office, but they remained satisfied that Miss Stephens qualified for housing benefit. (Paragraph 24)
- In about 1995 a Miss Karry Altham moved into 5 Upton Road with her children. In evidence, Miss Stephens said that their presence was so upsetting to her in a number of respects that she was "driven out" of No. 6. (Paragraph 26)
- Since then, Mr Trueman has made available to Miss Stephens accommodation at his property, 58 West Street, Ryde, which is some five to ten minutes' walk away from 6 Upton Road. 58 West Street is a three-bedroomed house which is in a state of some disrepair, and which is cluttered with Mr Trueman's accumulated chattels. (Paragraphs 44 and 56)
- Miss Stephens has spent considerable amounts of time and most days at 58 West Street. She takes her meals there (at any rate if they are hot meals) and she takes baths and washes her clothes there. (Paragraphs 40, 47 and 48).
- Miss Stephens' lifestyle is extremely frugal. (Paragraph 53)
- Mr Kerr alleges that Mr Trueman is Miss Stephens' boyfriend, but the judge found that no sexual relationship exists between them. (Paragraph 43)
- Miss Stephens does not occupy a bedroom at 58 West Street. She has "some kind of a bed on the landing", which is partitioned off and surrounded by lots of objects. (Paragraph 46)
- There is a TV at 58 West Street, which Miss Stephens watches but Mr Trueman does not. There is no TV at No. 6 Upton Road. (Paragraphs 49 and 53)
- Miss Stephens' dog Angus is kept at 58 West Street. (Paragraph 50)
- The arrangements which Miss Stephens has adopted at 58 West Street replace the living arrangements which she had previously at 6 Upton Road, save to the extent that she continues to live at 6 Upton Road. (Paragraph 51)
- Miss Stephens does not occupy 58 West Street as her home. (Paragraph 59)
- 58 West Street is Mr Trueman's home; Miss Stephens is there as his guest. (Paragraph 58)
- Miss Stephens continues to sleep at 6 Upton Road two or three nights a week, and she visits the property daily. (Paragraph 55)
- She maintains a bedroom at 6 Upton Road which (according to a photograph taken in 1993) is in a fairly neat and tidy condition, and contains objects of personal concern to her. (Paragraph 67)
- Since the arrival of new occupants at 5 Upton Road, Miss Stephens has lost interest in the garden at No. 6.
- Mr Trueman has on occasion carried out some redecorating work at 6 Upton Road. (Paragraphs 14 and 15)
- 6 Upton Road is full of Miss Stephens' belongings, including her furniture. (Paragraph 63)
- In recent years Miss Stephens has spent on average several hours a day on the internet at No. 6. (Paragraph 105)
- Utility bills in respect of 6 Upton Road demonstrate that Miss Stephens was using negligible amounts of water and electricity during the late 1990s and the early years of this century. (Paragraphs 109 and 113)
"In my judgment, the correct answer to [the preliminary issue] which is, as the cases make clear, essentially a jury question or one of fact and degree –and in this case I consider it to be essentially one of degree – is that Miss Stephens has not ceased to occupy No. 6 as her home. It has been her home all her life. Although her new arrangements have reduced the importance of No. 6 to her as a place to resort to, her connection with it is still sufficiently great that she still occupies No. 6 as her home, or as her residence."
"In my judgment, the degree of continuing connection that she [i.e. Miss Stephens] has had with No. 6 – through furniture, through physical and personal presence and through sleeping at No. 6 – means that she continues to occupy it as her home."
"Nevertheless, finely balanced as I think the issue is, I have come down, as I have indicated already, on the side of deciding that Miss Stephens has remained in occupation of No. 6 throughout that period, and I shall answer the preliminary issue accordingly."
"I have found this an extremely difficult case. I think it would be right, if you are so minded, to take this case to the Court of Appeal, given the serious difficulties I have had in coming to a view about it."
"The question posed and to be answered by ordinary commonsense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant's 'home' …"
Order: Appeal dismissed.