Tanner v Tanner

Where a parent provides a home for the other parent and their children in return for the other parent giving up protected accommodation and caring for the children, the circumstances may imply a contractual licence supported by consideration. Its duration and terms depend upon the parties’ inferred arrangement. A licence lasting while the children remain of school age and the accommodation is reasonably required cannot be revoked at will, although a relevant change of circumstances may permit termination.

Such a licence confers no proprietary interest merely because accommodation was provided. It may nevertheless be specifically enforced. Where possession has already been obtained and restoration is impracticable, the court may award damages representing a reasonable price for surrender of the licence as a substitute for an injunction.

The respondent owned a house occupied by the appellant and their twin daughters. The appellant had given up a rent-controlled flat, moved her furniture into the house and cared for the children there. The respondent later purported to revoke her licence so that he could occupy the house with his wife and obtained a possession order from Barnet County Court.

The county court rejected the appellant’s claims based on estoppel, an inferred trust and a beneficial interest. After the possession order, the local authority rehoused the appellant and the children, so she did not seek restoration to the property.

The central issues were whether the appellant’s licence was revocable at will, whether she had a proprietary interest, and what remedy should be granted after she had left pursuant to the possession order.

1. Appeal allowed unanimously. The possession order was set aside and the appellant was awarded £2,000 compensation. Lord Denning MR delivered the leading judgment. Browne LJ and Brightman J agreed with the order and the essential reasoning.
2. The appellant had no beneficial or other proprietary interest in the house. Brightman J held that the provision of accommodation for her and the twins was insufficient by itself. There was no express agreement for a proprietary interest and no contribution in money or work from which such an agreement could be inferred. Cooke v Head and Eves v Eves were materially different because they concerned understandings about beneficial ownership in contemplation of marriage or supported by substantial reliance.
3. The appellant nevertheless occupied under a contractual licence supported by consideration. Lord Denning MR inferred from the circumstances that the house had been provided as a home for the appellant and the twins for the foreseeable future. Brightman J identified the consideration as her surrender of a rent-controlled flat and her undertaking to care for the twins at the house.
4. The licence permitted occupation while the twins were of school age and the accommodation remained reasonably required for the appellant and the children. A relevant change of circumstances, such as remarriage or the loss of reasonable need, might permit termination. The respondent could not revoke the licence merely to replace the appellant and the children with his new wife and family.
5. The contractual licence was specifically enforceable and could have been protected by an injunction. The respondent could also have been restrained from defeating it by selling the house. The absence of an express pleading of an implied contract was not decisive because the nature and terms of the pleaded licence were already in issue and all relevant evidence had been adduced.
6. Restoration and specific enforcement had become impracticable after the appellant was rehoused. Under Order 59 r. 10 of the Rules of the Supreme Court, the Court of Appeal could substitute damages for the unavailable injunction. The appropriate measure was the sum that might reasonably have been requested and paid for surrender of the licence. That sum was assessed at £2,000.

1. Court of Appeal: The court unanimously allowed the appellant’s appeal, set aside the possession order and awarded £2,000 compensation for the wrongful termination of her contractual licence.
2. Barnet County Court: His Honour Judge Eric Stockdale ordered possession within six weeks and dismissed the appellant’s counterclaim for an interest in the house or continued occupation.