Possession proceedings – Lease of public house with requirement for tenant or employee to live on premises – Application for summary judgment – Whether jurisdiction to award summary judgment – Whether proceedings falling within exception to jurisdiction in CPR 24.3(2)(a)(ii) – Whether public house with residential accommodation “residential premises” within exception – Application refused
The claimant acquired the landlord’s interest under a lease of a public house. The first defendant company later acquired the tenant’s interest, with the second and third defendants guaranteeing its obligations under the lease. The permitted use under the lease was that of a public house. The lease provided that “where living accommodation is comprised within the property” it must be lived in throughout the term of the tenancy, either by the tenant or by a full-time employee of the tenant as a condition of their employment.
The claimant brought possession proceedings contending that the lease had been forfeited on the grounds of rent arrears and under a forfeiture clause in the lease. It applied for summary judgment in its favour, under CPR 24.3, on the basis that the defendants had shown no reasonable grounds for defending the claim and had no real prospects of successfully doing so. The defendants contended that there was no jurisdiction to give summary judgment. They relied upon the exception in CPR 24.3(2) in respect of “(a) proceedings for possession of residential premises against… a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988”. They submitted that the proceedings concerned the possession of residential premises against a tenant and so fell within that exception.
The claimant argued against that contention on the basis that the exception properly construed: (i) applied to proceedings against a tenant only where the tenancy was protected under the 1977 or 1988 Acts; and (ii) the phrase “residential premises” did not encompass premises let as a public house with only a subsidiary element of residential use.
Held: The application was refused.
(1) The reference to the 1977 and 1988 Acts was not intended to qualify the word “tenant”. The exception in CPR 24.3(2)(a)(ii) operated disjunctively so as to apply to either tenants or, separately, persons holding over with the requisite statutory protection under the 1977 or 1988 Act. It was commonplace for statutory provisions dealing with residential occupation to distinguish between the tenant and persons holding over after the termination of the tenancy, since certain statutes created a right of personal occupancy after the end of the tenancy and it was necessary to make special provision for such occupants.
(2) There was no reason, as a matter of policy, why the exception with regard to residential premises should not include premises in mixed use that contained an element of residential use. That conclusion was reinforced by the requirement in the Human Rights Act 1998 to construe statutory provisions, where possible, consistently with rights under the European Convention on Human Rights. The Convention right enjoyed by lessees to the protection of their property under Article 1 of the First Protocol, or the right of those in occupation to respect for their homes under Article 8, both suggested that where a statutory provision referred to possession of residential premises, it was not disapplied simply because the premises was also used for other purposes. Consequently, the proceedings fell within the exception in CPR 24.3(2)(a)(ii) and summary judgment was not available to the claimant.
Ms Gowling appeared for the claimant; Ms Collignon appeared for the defendants.
Sally Dobson, barrister
