Leasehold property — Residential use — Appellants applying for enfranchisement — Whether appellants having right to claim freehold interest — Whether buildings designed or adapted for living in — Appeals dismissed
The second respondent in both actions was the freeholder of two properties that had been constructed in the 18th century as single houses. The first respondent in both actions had long leasehold interests in the properties, which were reversionary upon the lease.
The appellants in both actions were the tenants of the properties. They gave notice of their wish to acquire the freehold interests in their respective properties, pursuant to the Leasehold Reform Act 1967. The respondents disputed the appellants’ right to claim the freehold on the basis that the properties were not houses within the meaning of section 2(1) of the Act. This defined “house” as “any building designed or adapted for living in and reasonably so called, notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in”.
In the second case, the property had been occupied as a residence until the 1950s. Since then, the first appellant had used and occupied it as an antiques showroom. In the second case, the property had originally been designed and used as a house but had been converted to business premises on the lower floors, with residential flats above. At the relevant time, it was unoccupied and the upper floors had become derelict.
The appellants brought separate actions in the county court to make good their claims. However, in each case, the judge held that the property was not, when the notice was served, a house within section 2(1) of the Act. The second property had been adapted for commercial, rather than residential, use, and the first property, because of its state and condition, was not a building designed or adapted for living in.
The appellants appealed, contending that both properties had originally been designed for living in and had retained that character or configuration. The respondents argued that the judge had applied the correct test of whether the properties had been designed for living in at the relevant time.
Held: The appeals were dismissed.
The judge had applied the correct test and he had been entitled to conclude that neither property was a house designed for living in for the purposes of the leasehold enfranchisement provisions in the Act.
Under section 2(1) of the Act, it was necessary to consider whether a property satisfied the definition of house at the time at which the notice of the tenant’s claim had been served. The test was whether premises, viewed at that moment, were designed or adapted for residential use.
Although the requirement of actual residence to obtain enfranchisement had been abolished by the Commonhold and Leasehold Reform Act 2002 and replaced by a test of ownership, the essential question was whether the purpose of the building was for actual and immediate residential use.
Edwin Johnson (instructed by David Conway & Co in the first action and Fosters LLP in the second action) appeared for the appellants; Anthony Radevsky (instructed by Boodle Hatfield) appeared for the respondents.
Eileen O’Grady, barrister
