Landlord and Tenant Act 1954, Part I–Long tenancy at low rent–Maisonette and flat included in one lease–Flat originally
This was an
appeal from a decision of Her Honour Judge Rowland at Westminster County Court
who held that the respondent, Jack R Ramsden, was entitled under Part I of the
Landlord and Tenant Act 1954 to protection in respect of both a maisonette and
a flat comprised in a 42-year lease expiring on September 29 1978. The
maisonette and flat were located on the top floors of a large block of flats in
Petty France in the City of Westminster. The appellants were the lessors,
Regalian Securities Ltd.
R Pryor
(instructed by Thornton, Lynne & Lawson) appeared on behalf of the
appellants; M Blackett-Ord (instructed by Watkins, Pulleyn & Ellison)
represented the respondent.
Giving
judgment, LORD DENNING MR said: This case concerns a ‘penthouse’ at the top of
a big block of flats in Petty France in the City of Westminster. The block of
flats was erected in 1936. An enterprising man, Victor Ramsden–who was about 46
years of age in 1936–saw the block of flats being put up. He inspected the
incomplete building and suggested that instead of the two top floors being
divided into three flats, as was originally intended, a penthouse should be built
for himself and his family, with a domestic flat attached. Nos 83 and 84 were
made into a maisonette for his own family and personal use. No 85 was made into
a separate and self-contained flat. He used that flat for his domestic
staff–the nannies who looked after the children, and so forth.
There were no
Rent Acts operating in 1936 on new buildings like this. Mr Ramsden took a
42-year lease. He thought it would see him out. It was to expire on September
29 1978.
In 1973 Mr
Ramsden was about 81 years of age. He thought he would live permanently in the
country. So he decided to get rid of the maisonette. His son was living in the
domestic flat. He negotiated with his son, and eventually he assigned to him
the whole of the lease which was to expire on September 29 1978. I ought to say
that Victor Ramsden had paid a very low rent over those 42 years–£300 a year.
His tenancy was clearly outside the Rent Act altogether at any time. Mr
Ramsden’s son bought the lease from him for £10,000–presumably with the contents
of both maisonette and flat.
The son did
not want to use the maisonette himself. He sublet it to a Mr Debye–a friend
from Holland–for £8,600. The sublease was for the whole of the head lease less
one day. Mr Debye stayed there only a year or so. About the beginning of 1975
Mr Debye assigned the sublease to a Mr Carter. So from 1975 onwards Mr Carter
was the undertenant of the maisonette–that is, less one day of the lease. That
remained the position always thereafter. Mr Carter was in the maisonette, occupying
it. (The position with regard to the furniture is a little uncertain, but I
need not bother about it.) Mr Carter’s
underlease of the maisonette came to an end on September 28 1978: and Jack
Ramsden’s lease of the whole came to an end on September 29 1978–just one day
between the two.
Then the
question arose as to whether any of the premises were protected by the Landlord
and Tenant Act 1954. Clearly none of them was protected by the old Rent Acts,
because the rents were less than two-thirds of the rateable value in each case.
So the whole question arises on the interpretation of a section of the Landlord
and Tenant Act 1954. Section 2(1) of that Act gives protection to a person who
holds a long lease at a low rent, as Mr Ramsden did here, if the tenancy had
been such that, if it had been one at a low rent, he would have been entitled
to retain possession under the old Rent Acts. Under the old Rent Acts there was
protection to a person if premises were let to him as a separate dwelling, and
he was in residential occupation of them himself.
The important
section for consideration here is section 22(3) of the Landlord and Tenant Act
1954, which provides:
In
determining, for the purposes of any provision of this Part of this Act,
whether the property comprised in a tenancy, or any part of that property, was
let as a separate dwelling, the nature of the property or part at the time of
the creation of the tenancy shall be deemed to have been the same as its nature
at the time in relation to which the question arises, and the purpose for which
it was let under the tenancy shall be deemed to have been the same as the
purpose for which it is or was used at the last-mentioned time.
That is a very
complicated section. I need not go into it all again now, because we have had
two or three cases upon it. We considered it in Herbert v Byrne
[1964] 1 WLR 519, and later on in Crown Lodge (Surbiton) Investments Ltd
v Nalecz [1967] 1 WLR 647. Taking it quite shortly, we have to look at
the position on the term date at the end of the lease. That is, you have to
look at it on September 29 1978. You have to look at the nature of the premises
then, and you have to look at the purpose for which they were used then.
The nature of
the premises on September 29 1978 is clear to my mind. The maisonette, nos 83
and 84, was a separate and self-contained dwelling in the occupation of Mr
Carter. Although his underlease had come to an end, he was claiming to be there
in possession under the Rent Acts. As to the domestic flat, no 85, that was separate
and self-contained. It was a separate dwelling in the occupation of Jack
Ramsden himself. Looking at the nature of the premises and the use of the
premises, it seems to me plain that they were not used as one separate
dwelling. They were two separate dwellings–and used as two separate dwellings.
So, if one applies the old Rent Act test here, the premises were not let as one
dwelling: they were let as two separate dwellings. Such a tenancy under the old
Act was not protected at all: because the premises were not let as a separate
dwelling.
The judge
thought that the matter depended on the intention of Jack Ramsden. She was
influenced by the intention he had of using the whole penthouse (maisonette and
domestic flat) as one dwelling again in the future. But that was not correct.
The facts of occupation are more important than the intent. It seems to me
plain that there were two separate dwellings. Jack Ramsden is not protected in
respect of the whole of the premises: because the maisonette and the domestic
flat were used as separate dwellings.
It is
different with regard to the domestic flat which Jack Ramsden occupies himself.
It is quite plain from section 22(3) that that has to be considered separately
from the rest. Section 3(2)(b) of the Act expressly says:
. . . if the
premises qualifying for protection are only part of the property comprised in
the tenancy, the tenancy while continuing after the term date shall have effect
as a tenancy of those premises to the exclusion of the remainder of the property.
. . .
The statute
there contemplates that there may be protection in respect of part of the
premises. It seems to me that Jack Ramsden was in occupation at the end of the
tenancy of the domestic flat. If it was a Rent Act case in the old days, it would
be regarded as let as a separate dwelling to him in which he was in residential
occupation. He would certainly be entitled to protection of it. The result is
that Mr Ramsden is entitled to protection in respect of the domestic flat. The
rent and all other consideration should be determined in accordance with the
provisions of the statute.
Mr Ramsden is
not entitled to the continuance of the lease of the whole of the premises for
the simple reason that he was not in any way in occupation of the maisonette.
That was in the separate and self-contained occupation of Mr Carter.
I should say a
word about the furniture. The judge was influenced by that. She said: ‘The
family furniture remained
a result of the further evidence which we have admitted, it is not altogether
clear as to whom the furniture belonged. It seems to me that it would be wrong
to place any reliance upon the title to the family furniture. It looks as
though quite a good deal of it may have passed first to Mr Debye and then to Mr
Carter. Some may belong to Jack Ramsden or to the family. At all events, no
help can be gained from the furniture. The plain fact is that at the end of the
lease Mr Carter was in occupation of this separate dwelling.
It seems to me
that Jack Ramsden cannot claim the continuance of the lease of the whole
premises, but only in respect of the domestic flat.
I would allow
the appeal accordingly.
Agreeing,
BRIDGE LJ said: If premises are constructed as a single dwelling-house and let
as such, the tenant may be protected under the Rent Act in his possession of
the whole notwithstanding that parts of the dwelling-house are sublet as
separate dwellings: see Berkeley v Papadoyannis [1954] 2 QB 149
and Herbert v Byrne [1964] 1 WLR 519. Conversely, if two
structurally separate and distinct units are let to a single tenant for his
single occupation, he may be protected in his possession of both units so long
as he is in occupation of both: see Haines v Herbert [1963] 1 WLR
1401. But when two structurally separate and distinct units are let, albeit
under a single lease, for the purpose of being occupied as two separate and
distinct dwellings, the tenant cannot claim to retain possession of the whole,
because the whole is not let to him as a single separate dwelling. That, I
think, must follow from the decision of this court in the case of Horford
Investments Ltd v Lambert [1976] Ch 39, where it was held that in
the phrase ‘let as a separate dwelling’ as found in section 1 of the Rent Act
1968 the word ‘dwelling’ must be construed as not including the plural.
That is
exactly the situation we have to contemplate here, since by section 22(3) of
the Landlord and Tenant Act 1954 the premises, which have always been
structurally divided into the separate and distinct maisonette and flat, are
deemed to have been let for the purpose for which they were used at the date of
expiry of Mr Ramsden’s contractual lease. At that date Mr Ramsden used the flat
as his dwelling, but Mr Carter continued to use the maisonette as his dwelling.
It is true that Mr Carter’s contractual tenancy expired on the previous day and
he enjoyed no statutory protection save that he could not be evicted without an
order of the court. But these considerations do not prevent the conclusion that
his use of the maisonette at the material date gave rise to the deemed letting
of the maisonette for the purpose of that use. It follows in my judgment that
Mr Ramsden can claim no Rent Act protection in respect of the maisonette.
On the other
hand, I have no difficulty in reaching the conclusion that Mr Ramsden is
entitled to protection in his possession of the flat. Section 2(1) and section
3(2) of the 1954 Act both contemplate that a tenant may be entitled to
protection in respect of part only of the premises comprised in a long tenancy
at a low rent, and the language of section 22(3) clearly envisages that this
partial protection will be attracted when part only is, at the termination of
the lease, let as a separate dwelling which the tenant occupies.
Accordingly I,
too, would allow the appeal so far as it concerns the maisonette.
OLIVER LJ also
agreed.
A declaration
was made the effect of which was that the tenancy to which Part I of the
Landlord and Tenant Act 1954 applied was the tenancy of the flat only. The
appeal was allowed with costs in the Court of Appeal, no order to be made for
costs below. Leave to appeal to the House of Lords was refused.