Landlord and tenant — Rent Act 1977 — Landlord moved to new dwelling-house one week after grant of tenancy — Whether landlord in residence for purposes of resident landlord exception
Shortly after
acquiring 27 Vardens Road in 1960 the plaintiffs let a room to the defendant.
Prior to 1984 the plaintiffs acquired 24 Vardens Road, decided to convert no 27
to three self-contained flats themselves and then move to no 24. The defendant
and the plaintiffs’ son moved to no 24 at the end of February 1984. At the time
the plaintiffs were spending the day working at no 24, but preferred sleeping
at no 27 and did not move in until a week after the defendant. The defendant
was given notice to quit on February 14 1992. The county court judge made an
order for possession, accepting that the plaintiffs were resident landlords for
the purposes of section 12(1)(b) of the Rent Act 1977. The defendant
appealed, contending that the plaintiffs were not in residence of no 24 until a
week after the tenancy had been granted to her.
households planned in advance and carried out over several days and it was
purely fortuitous that it was convenient and sensible for the defendant and the
plaintiffs’ son to move first; it was wholly artificial to split up a
co-ordinated transfer from one house to another into separate stages. The
plaintiffs’ intentions to move to the new property were also relevant and there
was evidence of the outward and visible signs of those intentions.
The following
cases are referred to in this report.
Brown v Brash [1948] 2 KB 247; [1948] 1 All ER 922, CA
Brown v Draper [1944] KB 309
Feather
Supplies Ltd v Ingham [1971] 2 QB 348;
[1971] 3 WLR 362; [1971] 3 All ER 556, CA
Haines v Herbert [1963] 1 WLR 1401; [1963] 3 All ER 715, CA
Hallwood
Estates Ltd v Flack (1950) 66 TLR (Pt 2)
368; [1950] WN 268; [1950] EGD 119; 155 EG 408, CA
Herbert v Byrne [1964] 1 WLR 519; [1964] 1 All ER 882, CA
Laundon v Hartlepool Borough Council [1979] QB 252; [1978] 2 WLR
732; [1978] 2 All ER 307; (1978) 76 LGR 149, CA
Skinner v Geary [1931] 2 KB 546, CA
This was an
appeal by the defendant, Eileen O’Sullivan, from a decision of Judge Hunter,
who in Wandsworth County Court made an order for possession of a room on the
application of the plaintiffs, Douglas Henry John Barnett and Eva Maria
Barnett.
Mark Wonnacott
(instructed by Mildred & Beaumont) appeared for the appellant; Christopher
Maynard (instructed by Preston Rouse & Co) represented the respondents.
Giving
judgment, Hirst LJ said:
This is an appeal by the defendant, Eileen O’Sullivan, from the order of Judge
Hunter made on March 5 1993 in Wandsworth County Court, whereby it was ordered
that the plaintiffs, Douglas Henry John Barnett and Eva Maria Barnett, recover
possession of a furnished room at 24 Vardens Road, Battersea, upon the expiry
of 42 days.
The appellant
is the tenant of the room in question and the respondents occupy as their
residence the remainder of the building.
The
plaintiffs’ claim for possession, which was upheld by the learned judge, was
based on section 12(1)(b) of the Rent Act 1977, which provides as
follows, omitting the irrelevant words:
Subject to
subsection (2) below, [which has no application in this case] a tenancy of a
dwelling-house … shall not be a protected tenancy at any time if —
…
(b) the
tenancy was granted by a person who, at the time when he granted it, occupied
as his residence another dwelling-house which … also forms part of that
building.
The appeal
turns entirely on the construction of this subsection and its application to
the facts of the present case, the crucial issue being whether the plaintiffs
were in occupation of the remainder of the building at the time they granted
the tenancy to the defendant.
This question
was posed in a somewhat more expanded form at the end of the hearing in the
form of a note drafted by counsel and approved and signed by the learned judge
pursuant to section 80 of the County Courts Act 1984 as follows:
Whether
physical residence by the landlord in person commencing one week after the
grant of the tenancy together with:
(1) An
express intention by the landlord before the said grant to take up physical
residence in the building in person at or about the same time of the grant and
or, alternatively, the taking up of occupation as a residence in the building
by an adult son of the landlord who is part of the landlord’s household
constitutes occupation as a residence for the purpose of section 12 of the Rent
Act 1977?
The case raises
a novel point under the Rent Act legislation which, so far as counsels’
researches reveal, has not previously been considered, concerning a situation
which not uncommonly arises, where a landlord and his tenant move together from
one building to another by mutual consent, the tenant having accepted the offer
of a tenancy in the new building in place of his tenancy in the old.
The facts are
not in dispute; indeed the judge payed a striking tribute to the witnesses on
both sides, stating that their ‘transparent honesty, decency and fairness’ was
plain from the evidence.
Originally the
plaintiffs acquired 27 Vardens Road (opposite no 24) in 1960, and lived there
until 1984 with their children. Shortly after moving in they let a room in the
house to the defendant.
At some date
prior to 1984 the plaintiffs also acquired 24 Vardens Road, which consists of
three upper floors and a basement, and at first operated it as a furnished
bed-sitting-room house. However, at the end of 1983 they decided to convert no
27 into three self-contained flats and to move their residence to no 24, with
their son Christopher (then at college but living at home as a member of the
family with his mother providing his food and doing his washing) and also their
daughter, aged about 12. The defendant was fully cognisant of the
offered a tenancy in no 24.
In February
1984 the plaintiffs obtained London Building Act permission for their intended
conversion of no 27, which they planned to do themselves, since they were
experienced in such matters. Their work was to commence on the top floor of no
27, where both Christopher and the defendant were living, and in consequence
these two were the first to move.
The defendant
moved from no 27 to no 24 with her nephew’s assistance on a Saturday at the end
of February 1984 and Christopher moved very shortly beforehand, either on the
same day or the day before, the defendant occupying the basement, and
Christopher a room above.
At that time
Mr and Mrs Barnett were spending the day working at no 24, but preferred
sleeping in no 27, and that arrangement continued for at least a week but
certainly for no more than four weeks. The plaintiffs’ move was meantime
carried out piecemeal and not in one day; and all they had to do was to carry
the furniture across the road with no mechanical transport involved.
The defendant
was given notice to quit on February 14 1992 with effect from March 21 1992.
The learned
judge’s conclusions, on which he based his decision in the plaintiffs’ favour,
were as follows:
(1) At the
time this tenancy was created which, as I have indicated, was upon Miss
O’Sullivan moving in in accordance with her bargain, first of all, the
plaintiffs had taken a firm settled decision to take up residence in no 24,
which they already owned, and it was furnished. All this was before the tenancy
was created.
(2)
Subsequently. and without any delay. the plaintiffs carried out their
intention.
(3) They
forthwith cut off their ability to return to their former home by converting it
into three flats and disposing of those flats. Their family, in their son
Christopher, took up occupation either before or simultaneously, for all
practical purposes, with the creation of the tenancy. I do not think for the
purpose of this part of the law I am required to consider fine matters of
timing. As I say, that occupation occurred either before or simultaneously with
the creation of the tenancy and, of course, the defendant knew what was
intended and what would result. Subsequently, as I say, within a very short
period, probably no more than nine or 10 days at the very most, the plaintiffs
were living in no 24.
Para 5 of
Schedule 2 of the 1977 Act provides that for the purpose of section 12, a
person shall be treated as occupying a dwelling-house as his residence if, so
far as the nature of the case allows, he fulfils the same conditions as are
required to be fulfilled by a statutory tenant of a dwelling-house, ie
substantial use of that house as a residence: Skinner v Geary [1931]
2 KB 546.
On behalf of
the appellant, Mr Mark Wonnacott submitted that section 12 confers a privilege
on landlords and must be strictly applied. On the proper application of the
strict words of the section, the court is enjoined to look at one single
instant of time, when the tenancy is granted, and unless the landlord can
demonstrate that at this very moment he was in substantial occupation of the
building as a residence, his case must fail. By failing to focus on that instant
of time and by stating that he was not required to ‘consider fine matters of
timing’ the learned judge fell into error. In short, in Mr Wonnacott’s vivid
metaphor, ‘it’s a snapshot not a continuation’.
None of the
acts of constructive occupation found by the judge were, he submitted, capable
either individually or in combination of amounting to a substantial use as a
residence. Furthermore, the judge erred in paying regard to the plaintiffs’
present or future intentions since, in contrast to the well-established rule
that, where there is simply a temporary cessation of actual occupation, a
manifest intention to return is sufficient to establish continued residence (Brown
v Draper [1944] KB 309), it has never been suggested and would be wrong
to conclude that the mere act of intending to take up possession at some future
time, without ever having previously been in actual occupation, is capable of
constituting substantial use as a residence; the intention to occupy in the
future cannot be occupation in the present, no matter how soon it is intended
to take up occupation.
So far as
Christopher’s occupation is concerned, he submitted that this did not count,
relying on the dictum of Lord Denning MR in Feather Supplies Ltd
v Ingham [1971] 2 QB 348 at p352 that if a statutory tenant ‘puts in a
relative (other than his wife) or a manager or licensee, and is not in
occupation himself, the landlord can turn them out’.
In support of
his argument Mr Wonnacott placed particular reliance on the decision of the
Court of Appeal in Laundon v Hartlepool Borough Council [1979] QB
252. This case concerned the assessment of compensation in respect of unfit
housing purchased or demolished under section 68 of and para 1 of Schedule 5 to
the Housing Act 1969, which entitled the owner-occupier to a supplement
provided that, ‘on the relevant date and throughout the qualifying period (2
years ending with the relevant date) the house was wholly or partly occupied as
a private dwelling …’.
The question
at issue was posed by Orr LJ at p258 as follows:
As respects
the claimant’s case the tribunal concluded that the gap of 10 days between
October 27 and November 6 1972, during which the house was ‘completely
unoccupied,’ was in itself sufficient to destroy his claim, but added that
there was also the further period from November 6 to November 25, before the
claimant’s occupation became residential in quality.
Against this
decision the claimant now appeals and it has not been in dispute in the appeal
that the tribunal was right in holding as it had clearly done that the house
was during the two periods in question ‘occupied’ by virtue of the presence of
the furniture and that, in later referring to the house as being ‘completely
unoccupied’ during the first period, the tribunal must have meant that it was
unoccupied apart from the furniture.
The sole
issue in the appeal has therefore been whether the tribunal was right in
holding that during the two periods in question the house, although occupied,
was not occupied as a private dwelling …
Orr LJ
expressed his conclusion as follows at p260:
Apart,
however, from these considerations I am unable, with great respect to the
contrary view, to accept that because the presence of furniture involves, as in
law it undoubtedly does, that the house is occupied, it also follows in this
case that the house was occupied as a private dwelling. This question is not
answered in my judgment by reference to the past history of the house or on the
basis of a presumption of continuance. The question is whether over the two
periods in question it was being occupied as a private dwelling and in my
judgment the answer is that it was not, but it was being occupied as a
temporary repository for the items of furniture, and factors such as temporary
absence on holiday or otherwise, which would be relevant on the question
whether an established residential occupation was continued through a period of
physical absence, are not in my judgment material when the question is whether
a new residential, occupation has commenced.
On this
critical issue in the appeal I therefore accept Mr Newey’s argument but I part
company from Mr Newey on the issue of what, in the present context, would be de
minimis. In my judgment de minimis would apply, in this and at least
most other cases of this kind, to a gap of up to a week between residential
occupations and might apply to a 10 day gap, but, in my judgment, it could not
cover the gap of just under a month between October 27 and November 25 1972.
Cumming-Bruce
LJ stated as follows at p261:
… the
purchaser has to move in. He may set about it in much the same way as the
vendor, mutatis mutandis. (i) He may arrive with his furniture and
paraphernalia. (ii) He may camp in the house and wait for the arrival of his
furniture in a few days’ time. (iii) He may install his furniture over a period
of days and take up residence when the house is ready for him. In cases (i) and
(ii) his occupation as a private dwelling is complete on the first day. In case
(iii) the process of occupation as a private dwelling begins with the arrival
of the first instalment of furniture, and is completed when he takes up his
residence personally in the house. Or he may decorate or repair in order to
prepare the empty or nearly empty house for use as a private dwelling, and move
in when the work is done. On the ordinary use of language he does not make the
house his home, his dwelling, until he moves in himself or at least, having
begun the process of moving in by installing his furniture, continues the
process without undue break in time until he personally takes up residence.
Stephenson LJ
agreed with both judgments.
Mr Wonnacott
particularly relied on Cumming-Bruce LJ’s analysis and submitted that the
present case is equivalent to illustration (iii). Moreover, he argued that the
present case is a fortiori, since there is no room for a de minimis approach,
having regard to the need (as he submitted) to focus on the very moment of the
letting.
Admirably
though these submissions were presented, I am unable to accept them, substantially
for the reasons advanced by Mr Maynard in his equally able arguments.
In reality
this was a concerted move of both households planned in advance and carried out
over several days and it was purely fortuitous that it was convenient and
sensible for the defendant and Christopher to move first, for obvious
logistical reasons. It seems to me, as it did to the judge, that it is wholly
artificial to split up this co-ordinated transfer from one house to the other
into separate stages, and I agree with the learned judge that it is not
appropriate to consider ‘fine matters of timing’.
I am also of
the view, contrary to Mr Wonnacott’s argument, that the judge was fully
entitled to take into account the plaintiffs’ intentions, and I reject the
contrast he sought to draw between Brown v Draper (where there
was a temporary cessation of actual occupation) and the present case, where
actual occupation is about to begin. The unsoundness of this contrast is, I
think, clearly demonstrated by a passage in the judgment of Diplock LJ (as he
then was) with which Lord Pearce agreed, in Haines v Herbert [1963]
1 WLR 1401 at p1408 as follows:
I see nothing
in the cases — and we have been referred to all of them; they are, I think, all
of them referred to in Megarry, Rent Acts, 9th ed (1961), pp166–167, which
would justify us in extending the Skinner v Geary principle to
the facts of this case. The county court judge did so, in Latin, by saying that
that principle requires not only that there shall be corpus possessionis — and
that there was here — but also an animus revertendi — an animus
habitandi is insufficient. I can see no basis in the cases for drawing that
distinction, whether in English or in Latin, between animus revertendi and
animus habitandi. No doubt the question whether the person claiming the
protection of the Act has in fact resided (in the full sense of the term) in
the premises before is a relevant fact in determining whether there is a
genuine intention to use the premises as a residence. But the judge has in this
case, though he might have found otherwise, found as a fact that there was such
genuine intention. In those circumstances, on the facts as he has found them, I
agree with my Lord that the plaintiff has made out her right to a statutory
tenancy of the whole of this house.
This view is
strongly reinforced by the judgment of Russell LJ (as he then was) in Herbert
v Byrne [1964] 1 WLR 519. In that case all three members of the Court of
Appeal concluded on the evidence that the tenants had relevantly established
the existence of a present home on the premises. Russell LJ, however, went
further and stated as follows at p527:
The county
court judge decided this case against the tenant by asking himself the question
whether the premises were on December 25 1962, the tenant’s home, and answering
that question by saying that they were not, because his acts of occupation were
referable to a desire to stake a claim under the Act of 1954 which would
provide him with a home in the future, and not referable to any present
establishment of his home thereat.
I do not
think that was the right test or the right answer. The tenant was without doubt
demonstrably in actual and substantial personal occupation residential in
quality. He was proposing in the near future to leave his ‘tied’ flat at the
block of flats where he was part-time caretaker, subject to not more than a
month’s notice. He had formed the intention to make the new premises in the
fullest sense his home, at least as soon as they were fully fit for occupation
as such, and he could retire from his previous position. (I would mention in
that context Elliott v Camus.)
I see nothing
in the statutes or in the decisions to require us as a matter of language,
precedent or principle to hold that such a person cannot come within the
protective legislation. If a tenant moves in, in the manner in which did this
tenant, with the intention of making the place his only home in the near
future, it seems to me sufficient; nor can the occupation necessary for
protection be brushed aside on the ground that he might well not have embarked
upon it had he not appreciated that it was necessary for protection. The
occupation was referable to his intention and desire to have the place as his
home. I add that the fact that he did not sleep there on Christmas Eve or
Christmas Day does not in my view detract from the actuality of his occupation
and intention.
My brethren
conclude on the evidence that the tenant had relevantly established a present
home on the premises. I would not dissent from that. But as indicated, I
consider that it would be sufficient to afford him protection that he should
combine with his proved activities an intention to make it in due course his
home, moving his family there to join him.
I would
respectfully adopt and affirm this very penetrating analysis, which came from a
judge of the highest authority in this branch of the law and which seems to me
fully consistent with Lord Diplock’s approach in Haines v Herbert.
It is not in
dispute that mere intention is not enough and that ‘the inward intention must
be clothed with some formal outward and visible sign’ (per Sir Raymond
Evershed MR in Hallwood Estates Ltd v Flack (1950) 66 TLR (Pt 2)
368 at p374, quoting Asquith LJ in Brown v Brash [1948] 2 KB
247).
The learned
judge’s conclusions in the passage I have quoted above were entirely in harmony
with these principles. He first of all recorded the plaintiffs’ intentions, as
he was fully entitled to do, and then listed the outward and visible signs with
which they were clothed. These later findings were conclusions of fact which
lay entirely within the learned judge’s province, and which it would be wholly
inappropriate for us to disturb (Hallwood Estates Ltd v Flack (supra),
where Asquith LJ stated that a county court judge’s finding on these matters
‘must stand, unless it is shown to rest on no evidence’ (at p376)). No such
suggestion is made here and I reject Mr Wonnacott’s suggestion that
Christopher’s occupation prior to the defendant’s is of no significance; in Feather
Supplies (supra) Lord Denning had in mind the occupation of a
relative in substitution for tenant, not a situation such as here where the
son, who is a full member of the landlord’s household, moves first as a
vanguard for the family as a whole.
I do not gain
assistance from Laundon v Hartlepool Council (supra),
where the crucial question was different, namely whether there had been
occupation throughout the qualifying period and where in any event a
different statutory code for a different purpose was under consideration. In
any event, the outward and visible signs on which the learned judge relied were
much more extensive than those cited by Cumming-Bruce LJ in his illustration
(iii).
The purpose of
section 12 is manifest, namely to encourage resident owners of houses with
rooms to spare to let them, with the assurance that they will be able to
recover possession at the end of the contractual tenancy (as they may very
understandably wish to do should the tenant prove incompatible), and also to
enable them to sell what is probably their major asset with vacant possession:
see Megarry The Rent Acts 11th ed vol 1 p189). This purpose must always
be borne in mind in construing the section and it might well be seriously
frustrated if the landlord’s rights were dependent on the nice and very narrow
distinctions which Mr Wonnacott sought to draw.
For all these
reasons I would dismiss this appeal.
Butler-Sloss LJ
agreed and did not add anything.
Appeal
dismissed.
