Lease of premises — Used from commencement for mixed residential and business purposes — Premises included a garage — Tenant applying to exercise “right to buy” — Business use ceasing in 1979 — Whether eligible for “right to buy” — Whether secure tenancy — Whether originally “let as a separate dwelling”
In 1965, following the compulsory purchase of his property, the respondent council granted a 21-year lease to Mr Webb, the first appellant. The appellant covenanted to “use the demised premises only for residential purposes and for the purposes of trade or business for which they are let namely as a motor body repairs workshop”. Between 1965 and 1979 the appellant lived at the demised premises with his family and carried on his motor repair business.
In 1981 the first appellant claimed the right to buy the freehold in accordance with the Housing Act 1980 (now the Housing Act 1985); the respondents first acknowledged that the appellant was eligible. Then in 1983 the respondents informed the first appellant that his tenancy was a business tenancy and ineligible for the right to buy. Mr Webb and his son-in-law brought the present action to have determined their eligibility for the right to buy the freehold of the demised premises; Mr Assistant Recorder Pearl refused (November 27 1987) a declaration that they were so eligible.
Held The appeal was dismissed. An applicant is eligible to exercise the right to buy where he has a secure tenancy, section 79(1) of the Housing Act 1985 defining a secure tenancy as “A tenancy under which a dwelling-house is let as a separate dwelling”. Although the first appellant had a tenancy within the meaning of the Landlord and Tenant Act 1954 until he ceased his business activities in 1979, and such a tenancy is not a secure tenancy by reason of para 11 of Schedule 1 to the 1985 Act, there remained the question as to whether the premises were “let as a separate dwelling”.
The relevant time for considering whether the premises were “let as a separate dwelling” is at the time of the letting. At the time of the letting to Mr Webb in 1965, the premises were not let “as a separate dwelling”, as it was intended that the first appellant would use part of the demised premises for business purposes; it was a letting for mixed residential and business. Cheryl Investments v Saldanba [1978] 1 WLR 1329 contained dicta by Lord Denning MR, and Pulleng v Curran (1980) 44 P & CR 58 and Russell v Booker (1982) 263 EG 513 contained ratio to the effect that mere cessation of a use by the tenant would not change the status of the original letting. The recent case of Henry Smith’s Charity v Wagle [1988] EGCS 162 was the third case binding on the present Court of Appeal and to like effect.
John Colyer QC and David Parry (instructed by Philip Hodges & Co) appeared for the appellants; and Michael Barnes QC and John Furber (instructed by the solicitor to Barnet London Borough Council) appeared for the respondents.
