EWCA Civ 1891 (2nd December, 1998) IN THE SUPREME COURT OF JUDICATURE CCRTF 98/0368/2 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE KINGSTON UPON THAMES COUNTY COURT (HIS HONOUR JUDGE BISHOP )
Before: LORD JUSTICE ROCH
MRS JUSTICE HALE DBE

MR K LEWISON QC and MR K RUTLEDGE (Instructed by The Legal Department, Royal Borough of Kingston upon Thames, Surrey, KT1 1EU) appeared on behalf of the Appellant.   MR J GOUDIE and MR Z NABI (Instructed by Messrs Keepe Shaw, Twickenham, Middlesex, TW1 4AW) appeared on behalf of the Respondent

Judgment (As approved by the Court ) © Crown Copyright

LORD JUSTICE ROCH: For the reasons given in the judgment handed down, this appeal will be dismissed.

MRS JUSTICE HALE: This appeal raises an interesting point which may be of some practical importance: whether a minor can succeed to a secure tenancy under the Housing Act 1985. His Honour Judge Bishop, sitting in the Kingston County Court on 26 February 1998, held that she could do so, but he himself gave the local authority leave to appeal.

The appellant local authority own a three bedroomed house at 109 Mount Road, Chessington. On 12 November 1979, they let it to Mr Peter Prince on a weekly tenancy. This automatically became a secure tenancy when the Housing Act 1980 came into force.

Mr Prince died on 22 July 1996. Living with him at the time were his daughter, Wendy Prince, and her daughter, Marie Prince, then aged 13. Wendy Prince had only been living there for about six months. She was not therefore a person qualified to succeed the tenant under s 87 Housing Act 1985. Marie Prince, however, had been living with her grandfather for about three years.

The local authority served notice on Wendy Prince requiring her to vacate the property with effect from 23 December 1996. On 25 February 1997 they brought possession proceedings against her. On 14 April 1997, District Judge Coni made a possession order. Although Wendy Prince had no defence, there was obviously some concern about Marie, because the local authority undertook to carry out an assessment of the family. This concluded that Marie needed a secure home and stability.

On 19 August 1997 an application was made to join Marie as a party and to set aside the possession order. On 20 November 1997, District Judge Gold joined Marie as second defendant, appointed Wendy as her Guardian ad Litem, set aside the possession order, and gave directions for trial.

On 26 February 1998, His Honour Judge Bishop heard the local authority's appeal against that order. He decided, as had the district judge, that a minor child could succeed to a secure tenancy. As a result, the local authority's claim for possession was dismissed. The substance of the issue was dealt with (in paragraph 6 of his order) as follows:

'It is declared that the tenancy of 109 Mount Road, Chessington is held by the first Defendant upon trust for the second Defendant until she reaches the age of morority [sic], and that the said tenancy has been so held since 22nd July 1996.'

It is helpful to set out the relevant provisions of the Housing Act 1985, which consolidated the equivalent provisions in the Housing Act 1980 as amended with other legislation. Secure tenancies are defined in s 79:

'(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in section 80 and 81 as the landlord condition and the tenancy condition are satisfied.

[(2) deals with exceptions, none of which apply here.]

(3) The provisions of this Part apply in relation to a licence to occupy a dwelling house (whether or not granted for a consideration) as they apply in relation to a tenancy.

[(4) excepts licences to squatters from subsection (3)]'

The 'landlord condition' in section 80(1) is that 'the interest of the landlord belongs to one of' a number of bodies, including a local authority. The 'tenant condition' defined in section 81 is that

'. . . the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.'

Section 87 defines the people qualified to succeed the tenant thus:

'A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenant's death and either -

(a) he is the tenant's spouse, or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;

unless, in either case, the tenant was himself a successor as defined in section 88 [which does not apply here]'

Section 113(1) defines 'a member of another's family' for this purpose as 'that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.'

Hence it is agreed between the parties for the purpose of this appeal (i) that Marie was a member of Mr Prince's family; (ii) that she occupied the house as her only or principal home at time of his death; and (iii) that she had resided there with him throughout the period of twelve months immediately preceding his death. In other words, it is agreed that Marie fulfilled all three of the qualifications listed in section 87. Nevertheless the local authority do not admit that she is entitled to succeed to the tenancy under the provisions of the Act. Succession to periodic tenancies is provided for in section 89:

'(1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.

(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules - . . . .'

(3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy -

(a) when it is vested or otherwise disposed of in the course of the administration of the deceased's estate, unless the vesting or other disposal is in accordance with an order made under [the Matrimonial Causes Act 1973, the Matrimonial and Family Proceedings Act 1984 or, following amendments made in 1996, the Children Act 1989]; or

(b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order.

(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.'

It is worth contrasting section 89 with the provisions for devolution of a term certain in section 90:

'(1) This section applies where a secure tenant dies and the tenancy is a tenancy for a term certain.

(2) The tenancy remains a secure tenancy until -

(a) it is vested or otherwise disposed of in the course of the administration of the tenant's estate, as mentioned in subsection (3), or

(b) it is known that when it is so vested or disposed of it will not be a secure tenancy.

(3) The tenancy ceases to be a secure tenancy on being vested or otherwise disposed of in the course of administration of the tenant's estate, unless -

(a) the vesting or other disposal is in pursuance of an order made under [the legislation listed in s 89(3)(a)], or

(b) the vesting or other disposal is to a person qualified to succeed the tenant.

(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.'

Nothing in the 1985 Act limits the operation of any of these provisions to adults. It has been established for some time, apparently uncontroversially, that a minor can succeed to a statutory tenancy under the Rent Acts: see Portman Registrars v Mohammed Latif [1987] 6 CL 217, a decision of His Honour Judge Hill-Smith in the Willesden County Court. From that brief report, it appears that his reasoning was that a statutory tenancy is not an interest in land and a minor does have the capacity to contract for necessaries such as lodging.

The principal argument before the Circuit Judge, therefore, was based upon the incapacity of a minor to hold a legal estate in land. Section 1(1) of the Law of Property Act 1925 provides that:

'The only legal estates in land which are capable of subsisting or of being conveyed or created at law are (a) an estate in fee simple absolute in possession; (b) a term of years absolute.'

A 'term of years absolute' is defined in section 205(1)(xxvii) to include 'a term for less than a year, or for a year or years and a fraction of a year or from year to year'.

Therefore, the argument runs, a periodic tenancy is a term of years absolute, a term of years absolute is a legal estate, and section 1(6) of the 1925 Act makes it clear that:

'A legal estate is not capable . . . of being held by an infant.'

I pause to point out that this is a circular argument. The fact that leases or tenancies are capable of being legal estates does not mean that they must be: as has recently been pointed out in this court in the case of R v Tower Hamlets London Borough Council ex p Goetz , The Times, 9 October 1998, the concept of an equitable term of years is well known to the law.

The Judge was referred to Hill and Redman's Law of Landlord and Tenant (18th edition) (Section D edited by Paul Matthews) at page D294, which suggests three possible solutions to the problem:

(1) 'Implied repeal pro tanto of the 1925 legislation, so that a minor successor takes the legal estate;'

(2) 'Construing s 89(2) of this Act as vesting the tenancy only in a successor who is otherwise qualified, ie has capacity to hold a legal estate in land under the general law; . . '

(3) 'The "land" is held on trust for the minor, by virtue of the Trusts of Land and Appointment of Trustees Act 1996, s 2, Sch 1, para 2, or (if the succession took place before 1 January 1997) para 1(3).'

The Judge preferred this last solution. He quoted para 2 of the Schedule to the 1996 Act:

'Where, after the commencement of this Act, a legal estate in land would, by reason of intestacy or any other circumstances not dealt with in paragraph 1, vest in a person who is a minor, if he were a person of full age, the land is held in trust for the minor.'

This solution contains the difficulty (to which no-one in court below seems to have drawn attention) that Peter Prince died on 22 July 1996. The 1996 Act did not receive the Royal Assent until 24 July 1996 and did not come into force until 1 January 1997. Hill and Redman (and everyone else) assume that vesting under section 89(2) takes place at the date of death. Although this cannot always apply, as there must be a delay when choices have to be made between two or more people qualified to succeed, I am content to assume that this is correct where there is only one qualified candidate, as in this case.

Hence the Judge's actual reasoning cannot be supported. But that does not mean that the answer to the basic question need be any different. The 1996 Act resulted from the Law Commission's Report on Trusts of Land (Law Com No 181, 1989). No substantive change was intended (see paras 5.1 - 5.3). The Act merely converted the cumbersome machinery of strict settlements and trusts for sale into a new all-purpose trust of land. The 1996 Act provides for pre-existing cases in paragraph 1(3) of Schedule 1:

'Where immediately before the commencement of this Act a conveyance is operating (by virtue of section 27 of the Settled Land Act 1925) as an agreement to execute a settlement in favour of a minor or minors (a) the agreement ceases to have effect on the commencement of this Act, and (b) the conveyance subsequently operates instead as a declaration that the land is held in trust for the minor or minors.'

Mr Lewison QC argues on behalf of the local authority that this cannot apply as it refers to a 'conveyance' rather than the automatic vesting on death provided for in section 89(2) of the 1985 Act. Mr Goudie QC argues on behalf of the second defendant that this is irrelevant as the machinery for dealing with this sort of situation clearly existed under the old law. But that law also supplies the statutory route to the application of this paragraph to the present case.

Expressions used in the 1996 Act have the same meaning as in the Law of Property Act 1925 unless context otherwise requires: see 1996 Act, section 23(2). A 'conveyance' is defined in the 1925 Act, section 205(1)(ii) to include ' . . . every other assurance of property or of an interest therein by any instrument, except a will; . . .' It is provided in section 205(1)(viii) that an 'instrument' 'does not include a statute unless the statute creates a settlement' but in section 205(1)(xxvi) that inter alia 'settlement' has the same meaning as in the Settled Land Act 1925.

In relation to infants, as they were then called, section 19(1) of the Law of Property Act 1925 provides that:

'A conveyance of a legal estate in land to an infant alone or to two or more persons jointly both or all of whom are infants, shall have such operation as is provided for in the Settled Land Act 1925.'

The Settled Land Act 1925, section 27(1) provides that such a conveyance

' . . . shall operate only as an agreement for valuable consideration to execute a settlement . . . in favour of the infant or infants and in the meantime to hold the land in trust for the infant or infants.'

There are other relevant provisions of the Settled Land Act 1925, notably in section 1:

'(1) Any deed, will, agreement for a settlement or other agreement, Act of Parliament, or other instrument, or any number of instruments, . . . , under or by virtue of which instrument or instruments any land, . . . , stands for the time being -

(ii) limited in trust for any person in possession -

. . .

(d) being an infant, for an estate in fee simple or for a term of years absolute; or

. . .

creates for the purposes of this Act a settlement and is in this Act referred to as a settlement, or as the settlement, as the case requires.

(2) Where an infant is beneficially entitled to land for an estate in fee simple or for a term of years absolute and by reason of an intestacy or otherwise there is no instrument under which the interest of the infant arises or is acquired, a settlement shall be deemed to have been made by the intestate or by the person whose interest the infant has acquired.'

Hence the machinery existed under the old law, and is preserved in the new law, for securing that minors have the benefit of any legal estate to which they would otherwise be entitled through the machinery of equity. Under the new law, that machinery is crystal clear in paragraph 2 of Schedule 2 to the 1996 Act. It would be stretching the principles of statutory interpretation beyond breaking point to suggest that the 1996 Act had impliedly amended the 1985 Act by introducing a mechanism to make possible that which had previously been impossible, namely the succession of a minor to a secure tenancy.

The question must stand or fall on what Parliament intended when enacting the 1985 Act or more properly, as that was a consolidating measure, its predecessor, the Housing Act 1980. In my view, it could not possibly have intended to repeal such a basic rule as that in section 1(6) Law of Property Act 1925 without saying so. But there are then two possible solutions: (1) that minors are excluded altogether, or (2) that the ordinary rules applicable to minors will apply, so that succession by a minor will be effective only in equity until the successor reaches her majority.

Mr Lewison argues that the Act does not permit of the separation of the legal and equitable interests such as would be necessary to cater for the fact that Marie cannot hold the legal estate. In effect he argues either that by 'tenancy' the 1985 Act refers only to the legal estate and excludes an equitable tenancy, or that by 'person' the Act refers to an adult person and excludes a minor. He goes so far as to argue that minors are 'non-persons' for the purposes of housing law.

However, there is no doubt that minors are capable of being persons in housing law. A minor can hold an equitable tenancy of any property, including a council house. Concern was expressed to the Law Commission during their consultations on minors' contracts about the social problems which could result if landlords, including local authorities, were unable to let property to minors who needed it. In their Report on Minors' Contracts (Law Com No 124, 1984; completed before I become a Law Commissioner) the Commission addressed this concern:

'5.14 . . . we are satisfied that the fears of those who have raised it are based on a misunderstanding of the existing law which ought to be removed.

5.15 The first point we wish to emphasise is that a lease is one of the four classes of contract, referred to in our Working Paper, which are binding on a minor unless and until repudiated by him. It is not a contract unenforceable against him and the authorities show that a minor who rents land is liable to pay the rent accruing during the currency of the tenancy, up to the time he repudiates it - if he does. We think our commentators' difficulty arises from the statutory provisions preventing minors from acquiring a legal estate in land, which a normal letting (even a weekly tenancy created orally) constitutes. The relevant provisions are section 19(1) of the Law of Property Act 1925 and section 27(1) of the Settled Land Act 1925, the combined effect of which is to make a conveyance of a legal estate in land to a minor operate as an agreement to execute a settlement in his favour, with the vendor/lessor in the meantime holding the land in trust for the minor. As a trustee he holds the land for the minor on the terms and conditions of the original purported grant; this is not inconsistent with the minor's obligations to pay the rent and observe the conditions of the "lease".

5.16 Moreover, the statutory provisions do not restrict a minor's ability to acquire an equitable interest in land: there is nothing to prevent a would-be lessor granting an equitable tenancy to a minor. The desired result can be achieved by the lessor's entering into a contract with the minor to grant him a lease on the agreed terms, followed by the minor's entry into possession of the property let. As far as the protection under the Rent Act is concerned, we think the position is correctly stated in Megarry's The Rent Acts [10th ed (1967) p 179] namely that it is immaterial whether the relevant tenancy is legal or equitable. . . .'

A minor clearly can succeed to the actual tenancy held by a deceased secure tenant. Sections 89 and 90 of the 1985 Act contemplate that in some cases the tenancy itself will devolve along with the deceased tenant's estate. Thus if the tenancy is a term certain, the effect of section 90 (see above) is that it goes into the deceased's estate and vests temporarily either in the public trustee (if he died intestate) or in his personal representatives (if he died testate). It will then descend in accordance either with the rules of distribution on intestacy or with the terms of the will. If the beneficiary is not qualified to succeed the tenant then there will be no security of tenure. If on the other hand the beneficiary is qualified to succeed then the tenancy will remain secure and (by virtue of section 86(1)) will become a periodic secure tenancy when the term certain ends.

There is no reason at all to construe section 90 as excluding an equitable term certain, for example a tenancy granted for more than three years but not by deed (as in R v Tower Hamlets London Borough Council, ex parte Goetz , The Times, 9 October 1998). There is also no difficulty under section 90 if the qualified successor happens to be a minor. The deceased's estate will continue to hold the legal estate on trust for the minor until she reaches the age of 18 when she can call for a conveyance of the legal estate. There is no technical reason to exclude minor children from these provisions. The Act itself does not exclude them. Imagine that Peter Prince had taken the house for a term certain of, say, ten years and had left that tenancy to his granddaughter in his will. Clearly she would have been entitled under the ordinary law to succeed to the remainder of the term. Given that she was also a 'person qualified to succeed' is there any reason why Parliament should have intended to exclude her from security once the term was completed?

Periodic tenancies are treated differently under section 89. Where there is no person qualified to succeed the tenancy again falls into the estate and is vested in the public trustee or personal representatives. It then devolves in accordance with the ordinary law, but once it is vested or disposed of in the course of the administration of the estate, it ceases to be a secure tenancy. Where there is such a person, the tenancy vests automatically in that person by virtue of section 89(2).

Mr Lewison argues that this cannot apply to a minor because the minor cannot hold the legal estate which is the tenancy. This means that the minor cannot be 'the tenant'. And if the minor cannot be the tenant, she cannot fulfil the tenant condition in section 81, which is that 'the tenant' is an individual and occupies the dwelling house as his only or principal home. Section 81 deals expressly with the position of joint tenants, he argues, precisely because our law imposes a trust in such cases. But it does not deal expressly with other trust situations, unlike, for example, the Leasehold Reform Act 1967, section 6; or the Leasehold Reform, Housing and Urban Development Act 1996, section 6; or the Landlord and Tenant Act 1954, section 41.

He argues, therefore, that the effect of the Judge's order is to constitute Wendy Prince, Marie's mother, 'tenant' of the property and thus a secure tenant even though she is not qualified under the Act. For the purpose of both the legal and policy arguments in this case, it is perhaps unfortunate that Marie's mother also lives in the house. It might be better to consider the case as if Marie were, on the one hand, the 16 year old wife of the deceased tenant or, on the other, a totally dependent orphaned child of the deceased tenant.

As I have already tried to demonstrate, the argument is based on a misapprehension of the effect of the general law relating to minors who would otherwise hold a legal estate in land. A minor is quite capable of becoming a tenant, albeit only in equity. Marie's mother was declared trustee because she was willing to act and no-one objected. But the relevant tenancy is the equitable tenancy held by Marie. Housing legislation may include an equitable tenancy without catering for it expressly (see R v Tower Hamlets London Borough Council, Ex parte Goetz , The Times, 9 October 1998, dealing with entitlement to improvement grants).

If there is nothing to stop a local authority granting a tenancy effective in equity to a minor in appropriate circumstances there can be no insuperable technical objection to Parliament rendering that equitable tenancy secure. If Parliament had wanted to limit these provisions to adults it could easily have said so: but it did not.

Moreover, section 79(3) (see above) gives exactly the same security to a licence to occupy a dwelling house as is given to a tenancy. A licence is not a legal estate. If Mr Prince had been a licensee, the major argument in this case could not have been raised. The technical objections to regarding Marie as qualified to succeed him would have had no substance if he had had either a licence to occupy the house or a term certain. It must be unsafe to rely upon purely technical objections, to which there is an equally technical answer, in deciding what Parliament must have meant when it enacted these provisions.

It might be suggested that Parliament simply forgot that children are people too. However, it is difficult to believe that Parliament, when defining members of the deceased tenant's family in section 113 to include grandchildren failed to appreciate that even in these days of increased longevity they might well be under the age of majority.

Nor is there any insuperable policy objection to including minors in these provisions. They are not comparable in policy terms to local authorities' duties to house the homeless. The House of Lords decided in R v Oldham Metropolitan Borough Council, ex parte Garlick [1993] AC 509, that the authorities' duties under Part III of the 1985 Act were not owed to dependent children. The reasons were explained thus by Lord Griffiths (at pp 517 to 518):

'Dependent children are not amongst those classified as in priority need. . . . Dependent children depend upon their parents or those looking after them to decide where they are to live and the offer of accommodation can only sensibly be made to those in charge of them. . . . Such a child is in my opinion owed no duty under this Act for it is the intention of the Act that the child's accommodation will be provided by the parents or those looking after him and it is to those people that the offer of accommodation must be made. . . If a family has lost its right to priority treatment through intentional homelessness the parent cannot achieve the same result through the back door by an application in the name of a dependent child.'

Such duties might however be owed to a child who had left home and was living independently: see Kelly v Monklands District Council 1986 SLT 169 (if I am right in my view of the technical effect of succession by a minor the differences between Scots and English law on minors' capacity are irrelevant).

Those provisions envisage a duty to accommodate particular applicants. Public sector housing, on the other hand, is provided as a service to local inhabitants. It is for the provider to decide what homes to provide and to whom. Once having done so, however, Parliament has decided that those homes should be secure, not only for the immediate tenants but for a single succession. The obvious intention of the 1980 Act was to give public sector tenants the same protection as that which was then available in the private sector although the mechanism was slightly different. People who were otherwise able to perform the obligations of the tenancy should not be turned out of their homes whenever the landlord wished to do so. No policy objection has been taken to minors succeeding to the statutory tenant's 'personal status of irremovability' under the Rent Acts.

We have also been referred to the case of Hypo-Mortgage Services Ltd v Robinson [1997] 2 FCR 422: this court refused parents leave to appeal against a mortgage possession order, rejecting their argument that children living with them had a beneficial interest in the mortgaged premises and were thus 'in actual occupation' so as to have overriding interests under section 70(1)(g) of the Land Registration Act 1925. Lord Justice Nourse stated that:

' . . . I regard it as axiomatic that minor children of the legal owner are not in actual occupation within s 70(1)(g) . . . The minor children are there because their parent is there. They have no right of occupation of their own. . . They are only there as shadows of their parent.'

This argument does not apply in a case like this, where the child is there, not because the legal owner is there but because she was living with a legal owner who has just died. It is conceded in this case that Marie was occupying the house when her grandfather died. Occupation is not a legal term of art: it generally refers to a factual state of affairs. There was also a clear policy basis to the Hypo-Mortgage Services decision which does not apply to the 1985 Act:

'No inquiry can be made of minor children or consent obtained from them in the manner contemplated by [s 70(1)(g)], especially when they are, as here, of tender years at the material date. If the second defendant was right, lenders would never be protected. Their security could always be frustrated by simple devices.'

If the effect of holding that a minor is qualified to succeed were that another person who is not qualified to succeed were to become tenant with all the personal benefits of being a tenant then this might be a way of circumventing the Act (although there must be few parents who would send their minor children to live with grandparents for this purpose: the risks to the children's welfare would be rather more predictable than the timing of the grandparents' death). But if the effect is that the minor becomes the tenant, albeit in equity rather than in law, then that difficulty does not arise.

In some such cases the minor may not be properly looked after once the tenant has died. The local social services authority may then have to step in to provide accommodation under the Children Act 1989. Unless they choose to support the child in her own home (as is sometimes the case) they will have to remove her, in which case the tenant condition will no longer be fulfilled.

In other cases the minor successor may not be able to pay the rent or otherwise discharge the obligations of the tenancy. The landlord will then be able to bring it to an end and obtain possession under one of the mandatory grounds. If however the minor successor is able to do this, perhaps because she is the 17 year old surviving spouse of the deceased, or because she is otherwise well provided for, then there is no obvious reason why she should be any worse protected than a person of full age.

The 1985 Act itself protects the social landlord if a survivor other than a spouse is overhoused after the deceased tenant's death. Under section 84(2)(c) and Ground 16 in Schedule 2, the court may order possession if it considers it reasonable to do so and is satisfied that suitable alternative accommodation will be available where the tenant has succeeded to a periodic tenancy as a member of the deceased tenant's family other than a spouse (provided that proceedings were taken between six and twelve months after the death).

The view that the security provisions in the 1985 Act do not impliedly exclude minors is reinforced by one of the three circumstances in which such tenancies can be assigned without losing their security. Under section 91 they may be assigned in accordance with an order made under section 24 of the Matrimonial Causes Act 1973, section 17 of the Matrimonial Proceedings and Property Act 1984, or paragraph 1 of Schedule 1 to the Children Act 1989. Those provisions all permit the court to order the transfer of property owned by one parent or spouse directly to a minor child. It would be odd indeed if the effect of such a transfer were to deprive the child of the security that it was designed to give her.

Thus there is ample reason to conclude that minor children are not 'non persons' in the law of landlord and tenant let alone the law of property generally. The modern tendency of the law is to recognise that children are indeed people. It simply cannot be assumed that they are omitted from legislation unless the contrary is expressly stated.

I would therefore dismiss this appeal.

Lord Justice Roch: I agree this appeal is dismissed.

Order: Appeal dismissed with costs to be taxed. Leave to appeal to House of Lords refused. Legal Aid Taxation of Respondent's costs. Order of Judge Bishop to stand save as to paragraph 6 which should read: Marie Emma Prince is the secure tenant in equity of 109 Mount Road, Chessington until she reaches the age of majority and the legal estate in relation to the said equitable tenancy be held by Wendy Jane Prince on trust until that time.