Repair notice — Two flats — Statutory tenancy of one flat — Notice served on statutory tenant — Whether tenant is person “having control” — Whether tenant would receive the rack-rent if premises let — Housing authority’s appeal dismissed
A company called Allied Northern Tenures Ltd owns the freehold of a house at 17 Friern Park, London N12. The house consists of two flats; no 17 is held by a Mrs Forsyth on a long lease at a low rent and no 17A is held by the respondent under a statutory tenancy. In September 1987, acting under sections 190 and 207 of the Housing Act 1985, the appellant housing authority served a repair notice on all three parties requiring certain specified work to be carried out within 90 days.
The respondent’s appeal to the Watford County Court against the repair notice was allowed by His Honour Judge Stockdale on the ground that a repair notice may only be served on the “person having control” and the definition of this person does not include a statutory tenant. Section 207 of the 1985 Act defines this expression as meaning “the person who receives the rack-rent … or who would receive it if the house were let at such a rack-rent”. The housing authority appealed, contending that following the case of Pollway Nominees Ltd v Croydon London Borough Council [1986] 2 EGLR 27, the proper test is to identify the persons or corporate person who could grant a lease of the house, at a rack-rent; in the case of no 17A, the respondent was the only person who could do this.
Held The appeal was dismissed.
Where a tenant in possession is already paying a rack-rent, as in the case of the respondent, the statute does not require the reality to be ignored; one does not proceed upon the artificial basis of a hypothetical new letting of the respondent’s flat at a rack-rent. Following the dicta in the Pollway case, where there are composite owners, the person who ought in justice to be responsible for the discharge of the relevant liabilities is the person receiving the rack-rent; in respect of no 17A that is the freeholder.
This approach departs from the test of occupation put forward in Truman, Hanbury, Buxton & Co Ltd v Kerslake [1894] 2 QB 774, but it does not depart from the basic test of inquiring who would be entitled to the rack-rent if the whole were let at a rack-rent. It merely requires one to take into account the fact that part of the property is already let at a rack-rent.
Nicholas Huskinson (instructed by the solicitor to the Barnet London Borough Council) appeared for the appellants; and Nicholas Yell (instructed by Osmond Gaunt & Rose) appeared for the respondent.
