Tenancy for mixed residential and business purposes — Re-entry by landlord — Section 2 of Protection from Eviction Act 1977 — Whether permissible to re-enter without court proceedings where part only of premises used as dwelling — Appeal allowed
The respondents were the landlords and the appellant was the tenant under a lease of premises that consisted of a shop with a residential flat above. The appellant conducted a retail business on the ground floor and lived on the first floor, in accordance with the user clause in the lease. Because the premises were occupied partly for business purposes, the tenancy was protected under Part II of the Landlord and Tenant Act 1954 for so long as the business occupancy continued.
The respondents purported to exercise their right of re-entry on the ground that the appellant had been in arrears of rent for at least 21 days. They changed the locks on the shop, thereby excluding the appellant, although he was still able to access the flat by a separate entrance. They then brought possession proceedings in respect of the flat on the basis that the lease had become forfeit by virtue of their earlier re-entry. The appellant was later charged with criminal damage to the flat, after which the respondents changed the locks.
The appellant applied for an injunction to restrain the landlords from excluding him from the flat. He submitted that the purported forfeiture of the lease was unlawful by virtue of the Protection from Eviction Act 1977. Section 2 of that Act provided that it was not permissible to enforce a right of re-entry or forfeiture of premises “let as a dwelling” otherwise than by court proceedings. An interim injunction was granted, and, at the main hearing, the court was asked to determine whether premises let partly for residential purposes and partly for business purposes were “let as a dwelling” so as to confer the protection of the 1977 Act. The judge held that they were not, and found that, in the light of the criminal damage, there was no ground for granting relief from forfeiture. He accordingly made an order for possession. The appellant appealed.
Held: The appeal was allowed.
The phrase “let as a dwelling” meant let wholly or partly as a dwelling, and so applied to premises that were let for mixed residential and business purposes. That had been the effect of the precursor to section 2 of the 1977 Act, in identical wording, in section 31 of the Rent Act 1965, and that interpretation was supported by comparisons with other provisions of the 1977 Act. There was no reason to suppose that parliament had not intended tenants who held tenancies for mixed purposes to enjoy the same protection as that afforded to purely residential tenants. A tenant should not be at risk of returning home to discover that, unbeknown to him, he and his family had been locked out and were homeless. Moreover, where an issue arose as to whether the landlord was entitled to forfeiture, or the tenant to relief from forfeiture, it was preferable, particularly in relation to a home, for the court to determine the matter in advance of eviction rather than in its wake: Billson v Residential Apartments Ltd [1992] 1 EGLR 43; [1992] 01 EG 91 considered.
That conclusion was reinforced by the requirement to give effect to section 2, so far as possible, in a manner compatible with the tenant’s rights under the European Convention on Human Rights. Forfeiture and re-entry undoubtedly interfered with a tenant’s right to respect for the home under Article 8, and the absence of procedural safeguards might well lead to a conclusion that such interference was not proportionate.
Jan Luba QC and Erroll Toppel (instructed by Van-Arkadie & Co, of Harrow) appeared for the appellant; Tom Weekes (instructed by Albin Hunt & Stein) appeared for the respondents.
Sally Dobson, barrister
