clr/1979/1979_1_705.pdf

(1979)The trial Judge found that there being no implied contract between the respondent and the appellants after the death of the mother, or more particularly, after the respondent became aware of her death it was clear that unless the appellants could come within the meaning of the term "tenant"* in section 2 of 5 the Rent Control Law, 1975 (36/75) they could not have become controlled tenants; and that the said Law did not cover this case because it was clear that after her marriage appellant 2 ceased to be a "member of the family" of the mother having formed her own family with appellant 1 and for the six months preceding 10 the death of the mother she could not be said to have been a member of her family. Upon appeal against an order for recovery of possession: Held, {after stating the approach as to the meaning of the term "member of the tenant's jamily"—vide pp. 710-2 post) that 15 the two appellants have always used the subject premises to the knowledge of the respondent Municipality since their engage­ ment in 1959 as members of the family of the tenant at the time; that though this Court is not aware of the contents of the declara­ tion, made in the original application of the parents of appellant 20 2 for the grant of a lease to them, as to who were the members of their family at the time,the long existing situation leads to the conclusion that the appellants and their children were, for all intents and purposes, treated and accepted by the respondent Municipality as members of the late mother's family who were 25 rc'di.ig with her; that, moreover, they fulfil the conditions of not less than six months' residence with the tenant immediately be." re the latter's death, thus bringing the present case within the definition of p^agraph (

1. c)of section 2 of Law 36/75; they are Therefore, entitled to its protection; and that, accordingly, 30 the : Tpeal must be allowed (approach in Standingford v. Probert [19-' '] 2 All E.R. 861 and Brock and Others v. Wollams [1949] The term "tena. t",so far as relevant reads: "Tenant mens thetenant of premises in respect of which a tenancy exists and ii.Ίtides (
2. c)Thewidow »f a tenant whowas residing with himat the time of his death oi where a tenant leavesnowidowor is a woman, such member of (he tenant's family as was residing with the tenant for notless 'hansix months immediately before the death ofthe tenant". 706 1 C.L.R. Orphanides & Another v. M/ty L/ssol '1All E.R. 715as to the meaning of the expression "member of the tenant's family" applied). Appeal allowed. 5 Cases referred to: Standingford v. Probert [1949] 2 All E.R. 861 at p. 863; BrockandOthers v. Wollams [1949] 1All E.R. 715at p.718. Appeal. Appeal by defendants against the judgment of the District Court of Limassol (Artemis, D.J.) dated the 7th July 1979 10 (Action No. 154/79) whereby it was declared that the plaintiff, the Municipality of Limassol, was entitled to recover possession of a house situate at Limassol and it was ordered that the defendants deliver vacant possession of the house to the plaintiff within six months. 15 J. Agapiou, for the appellants. J. Ph. Potamitis, for the respondent. . Cur.adv.vult. A. Loizou J. read the following judgment of the Court. This isan appeal against thejudgment and order of the District Court 20 of Limassol bywhich a declaration wasmadethat the respondent Municipality was entitled to recover possession of a house at Ayia Ecaterini Street No. 60, in Limassol, and an order was given that the appellants should deliver to the respondent Municipality vacant possession of same within six months 25 thereof. The facts of the case are as follows: The premises in question consist of one bedroom, one kitchent one W.C., two verandahs and a yard. The responden, Municipality let to the late Anthousa Christou—mother-in-law 30 of appellant 1and mother of appellant 2—these premises under a written contract of lease dated the 14th March, 1972, from month to month as from the first day of that month. This was not, however, a new tenancy but a continuation in a way of a pre-existing one as the parents of appellant 2 and 35 herself, then 18 years of age, first occupied these premises in 1957. In August 1959 appellant 2 was engaged to appellant 1 and thereupon moved in and resided with his fiancee and his parents-in-law in the subject premises. They were married in 707 A. Loizou J. Orphanides & Another τ. M/ty L/ssol

(1979)February 1960 and acquired two children. In the meantime the father-in-law died but the widow, the appellants and their children continued living therein. The late Anthousa died on the 2nd July, 1973, and the appellants remained in occupation of the premises and paid the rent. The receipts for rent were 5 issued in the name of the late Anthousa of whose death the respondent Municipality alleged that it did not know for some time. When they became aware of her death, the receipts were issued for the payment of "damages for wrongful possession" of the premises in question and not for the payment of rent and 10 they then instituted the present proceedings. The version of the appellants was that the Municipality knew that they resided in the said premises from the very beginning and never objected to it. The findings of the learned trial Judge on these points are that 15 both appellants have been residing since their engagement in the said premises and that that was known to the respondent Municipality who regularly inspected the house. He accepted, however, the version of the witnesses for the respondent Municipality that they came to know of the death of Anthousa 20 about five years after her death. In the aforementioned contract of lease, the late Anthousa is described as the tenant, which term is, where the text permits such interpretation, stated to "include the heirs, executors, administrators, and his agents and any other person which is in 25 actuai possession of the premises with theconsent of thetenant". Term ^(d) thereof provides that "the tenant agreed not to use or sul.iT the premises to be used for any other purpose except only for the private residence of his and the membc .» of his family as they have been declared and are 30 mentioi ;d by them in the relevant application for the lease of a house made Tothe Municipality of Limassol which is attached to the said con ract and constitutes part of it with regard to this term excepting, of course, those members of the family of the tenant which we e to be born after the signing of the said 35 contract". This implication for the lease of the premises in question was not pr -duced in the present proceedings and we do not know who wer: declared then to be the members of the family of the late Anthousa. The learned trial Judge found that the term of the contract 708 49 1 CX.R. Orphanides&Anotherv.M/tyL/ssol A. Lolzoa J. giving the definition of a tenant did not make the appellants tenants of the premises in the legal sense and that they could not, in any case, have any rights under the original contract. He found also that even if the term "tenant" should be 5 considered as including the appellants they could not have acquired any rights under the contract as they were not parties to it. He further examined whether after the death of the late Anthousa the appellants by their conduct could be said to have entered into an implied contract of lease as for a person to 10 become a controlled tenant he must have been originally a contractual tenant. He concluded, however, that from the conduct of the Municipality in issuing the receipts in the name of the late Anthousa and the institution of the proceedings as soon as they found out of her death, a new contract could not 15 be implied and that any rights the appellants might have had to reside in the premises during the life time of Anthousa came to an end at the time of her death as the tenancy also came to an end. Then thelearned trial Judgewenton to saythefollowing:20 25 30 35 " There being no implied contract between the plaintiff and the defendants after her death or, more particularly, after the Municipality became aware of her death, it is clear that, unless the defendants can come within the provisions of Law 36/75, which provides that the term 'tenant' where the person who has obtained the lease of thepremisesisa woman includesany memberofher family which resided withher for aperiodnot lessthansixmonths before her death, they cannot have become controlled tenants. Ifindthat the saidlawdoesnot cover thepresent case. It isclear that after her marriage defendant 2ceased to be a 'member of the family' of the deceased having formed her own family with defendant 1. Therefore, for thesixmonths preceding thedeath ofthetenant shecannot be said to have been a member of her family". The definition of the term "tenant" in section 2 of the Rent Control Law 1975,(Law36of 1975),in sofar as relevant tothe present proceedings reads as follows:"Tenant means thetenant ofpremisesin respect ofwhicha .tenancy exists and includes 709 A. Loizou J. Orphanides & Another τ. M/ty L/saol

(1979)(c) The widow of a tenant who was residing with him at thetimeof hisdeathorwherea tenantleavesno widow or is a woman, such member of the tenant's family as was residing withthetenantfor notlessthansixmonths immediately before the death of the tenant". 5 This definition is to be found also in the new repealed Rent (Control) Law, Cap. 86,with the difference that after the word "tenant" attheendthefollowingwordsexist"as maybedecided indefault of agreementby theCourttrying thecase",whichhave been omitted from the new definition. The definition of "a 10 tenant"as found in Cap. 86andthemeaningof thetermtherein "thetenantandhisfamily" was taken from section 3oftheRent andMortgageInterestRestrictions(Amendment)Act 1933,which was judicially considered in a number of authorities referred to inStandingford\. Probert [1949] 2All E.R.,p.861,whereCohen, 15 L.J., at p. 863, had this to say:" The first question to be considered, however, is whether he was right in excluding the two married sons and their wives from the description, 'the tenant and his family'. There is no reported decision on s. 3

(3)as to the meaning 20 of thosewords, butthequestion of themeaningof 'family* hasbeenconsideredinconnectionwith s. 12(l)(

1. g)of theAct of 1920 which is a definition section and states: ' theexpression 'tenant'includes thewidow of a tenant who was residing with him at the time of 25 his death,or, where a tenant leaves no widow or is a woman, such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the county Court'. In that connection it has been held that blood relations, 30 at any rate as distant as nephews and nieces, and adopted children are within the meaning of the section, provided, of course, they satisfy tne conditions of residence. It is true that we are now considering a different section, but I think there are some observations which are made in the 35 course of the judgments which have dealt with s. 12(l)(
2. g)which are of assistance to us in reaching a conclusion as to the meaning of the word 'family', in s. 3

(3)of the Act of

1. The first case to which I would refer is Pricev. Gould 40 710 1 CL.R. 5 10 15 20 25 Orphanides&Anotherτ.M/tyL/ssol A. LoizonJ. [1930], 143 L.T.
2. Thatcase was cited by Bucknill, L.J., in Brock v. Wollams [1949] 1All E.R. 715, and the passage (p. 717) to which Iwish to refer is sufficiently set out inthat case. Bucknill, L.J., cites Wright, J., as saying (143 L.T. 334): " 'It has been said in a numberof equitycases,relating principally to wills or to settlements under powers of appointment, thatthe word 'family' is a popular, loose and flexible expression, and not a technical term. It has been laid down that the primary meaning of the word 'family' is children,but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surroundingcircumstances. Thus, inSnow v. Teed[1870]L.R. 9 Eq.622,it-was held that the word 'family' could be extended beyond not merely children but even beyond the statutory nextof-kin'. Wright, J., went on to say (ibid.) that: ' I hold that in the section now under consideration (s. 12(l)(g)) the word 'family' includes brothers and sisters of thedeceased living with her at thetime of her death. I think that that meaning is required by the ordinary acceptation of the word in this connection, and that the legislature has used the word 'family' to introduce a flexible and wide term.'" He then quoted a passage of his from thecase of Brock and Others v. Wollams [1949] 1All E.R. p.718, where heconcluded: 30 35 "... I respectfully agree with what was said by Wright, J.,in. Price v. Gould in the passage which my Lord has already read. 1think the question the learned county Court judge should have asked himself was: Would an ordinary man, addressing his mind to the question whether Mrs. Wollams was a member of the family or not,have answered 'Yes' or 'No'?". And he went' on then to say the following :. "I.think that.is a fair test to apply when considering the meaning of the words, 'the tenantand his family', in s. 3

(3). for./.the .purposes with which we are now concerned.. 711 A. Lolzou J. Orphanides & Another τ. M/ty L/ssol

(1979)Obviously,having regard tothesubject-matter, nomember of thefamily whoisnotpermanentlyresiding—Iwillusethat expression for themoment,thoughitisnotentirelyaccurate —with thetenantwould fall within themeaningof the word 'family', but,subject tofulfilling theconditionsof residence, 5 I think that the proper question to ask oneself is: If an ordinary man was told that the tenant had living with her relations of whom we know,would heorwould henot say: 'Those are themembers of herfamily'? If hewould—and I think he would—I see no reason why they should not be 10 treated as 'family' for the purposes of s. 3

(3). I said, 'permanently residing'. By that I do not mean, as counsel for the landlord asked us to say, that they intended to live there for the rest of their lives. I think a fair test would be this. Supposing anybody said to a 15 married son: 'Having you made your home with your mother or are you just staying with her temporarily?', would he or would he not reply: Ί am making myhome with her and I have no present intention of making any change'? If he would answer in that way, as I think the 20 sons plainly would inthis case,thenit seems to methatthe only proper course intheabsence of other relevant circum­ stances is to treat them and theirwivesas members of the family". The aforesaid approach as to the meaning of the expression 25 "members of the tenant's family" applies with equal force to the same one to be found in thedefinition of "tenant" in para­ graph (

1. c)of section 2 of Law 36 of 1975 with which we are concerned. An examination of the particular facts andcircum­ stances of the present case shows that the two appellants have 30 always used the subject premises to the knowledge of the respondent Municipality since their engagement in 1959 as members of the family of the tenant at the time. We are not aware of the contentsof thedeclarationmadein theapplication by thefather originally for thegrant of a lease to him or by the 35 late Anthousa referred to in term 4(
2. d)of the contract of lease, as to who were the members of their family at thetime, but the long existingsituationalready referred to, leads ustothe conclu­ sion that the appellants and their children were, for all intents and purposes,treatedandacceptedby therespondentMunicipa- 40 lity as membersof thelateAnthousa's family whowere residing 712 1 C.L.R. 5 10 Orphanides&Anotherv.M/ty L/ssol A. Loizoo J. with her. Moreover, they fulfil the conditions of not less than six months' residence with the tenant immediately before the latter's death, thusbringingthepresentcasewithinthe definition of paragraph (
3. c)of section 2 of the Law, hereinabove referred to and, therefore, theappellants are entitled to its protection. For all the above reasons the appeal is allowed, and the judgment and order of the Court is set aside and discharged. In the circumstances, however, we make no order as to costs either in this Court or the Court below. Appeal allowed. No order as tocosts. 713