Leasehold Reform Act 1967 — Tenant’s bid to acquire freehold — Premises not his “main” residence — No right under the Act
This was an appeal by Mr Gerald Byrne, tenant of 37, Ifield Road, West Brompton, SW, from a decision of Judge McIntyre at West London County Court on July 26, 1968, refusing him a declaration that he was entitled to acquire the freehold of the premises pursuant to the Leasehold Reform Act, 1967. The first defendant, Mrs Fiona Gay Rowbotham, was the owner of a 41-year lease of the premises, and the second defendants, Miss Diana Herbert and Mr John Robert Turner, were the freeholders.
Mr RP Ground (instructed by Messrs Wainwright & Co) appeared for the appellant; Mr A McAulay (instructed by Messrs Crossman, Block & Keith) for the first defendant; and Mr Victor Wellings and Miss C Alton (instructed by Messrs Broughton & Co) for the second defendants.
Giving judgment, Salmon LJ said that Mr Byrne worked as a caretaker of premises in New Cavendish Street, W, and part of his remuneration was that he and his wife and children should occupy a basement flat there. In August, 1962, he purchased for £100 the fag-end of a 99-year lease of 37, Ifield Road, which expired four months later. Towards the end of November, 1962, having got possession of the ground floor and first floor, he went to sleep at Ifield Road. The top floor and basement were occupied by protected tenants. His intention was to move his family into the first and second floors as soon as it could be got ready, but it was in pretty poor condition, and his family continued to live in New Cavendish Street until March, 1963. He took crockery, cooking utensils and clothes to Ifield Road. Shoddy furniture he had acquired with the lease was already there. He visited New Cavendish Street daily, and had all his meals there except breakfast, which he cooked for himself at Ifield Road. In previous litigation his claim to be entitled to an extension of the lease under the Act of 1954 was upheld by the Court of Appeal. That case was argued on the basis that although he had a residence at New Cavendish Street he was also residing at Ifield Road. So between November, 1962, and March, 1963, he had two homes or residences. The crucial question in the present appeal was which of these was his main residence. The question was crucial because under the Leasehold Reform Act 1967 it was provided, by section 1 subsection (1):
This part of this Act shall have effect to confer on a tenant of a leasehold house, occupying the house as his residence, a right to acquire on fair terms the freehold or an extended lease of the house and premises where his tenancy is a long tenancy at a low rent and the rateable value of the house… is not more… in Greater London than £400…
There was no question but that Mr Byrne brought himself within that subsection. The section went on to say, however:
…[and] at the relevant time (that is to say, at the time when he gives notice in accordance with this Act of his desire to have the freehold or to have an extended lease, as the case may be) he has been tenant of the house under a long tenancy at a low rent, and occupying it as his residence, for the last five years.
Part of subsection (2) read:
…in this part of this Act references in relation to any tenancy to the occupying of a house as a residence shall be construed at applying where, but only where, the tenant it, in right of the tenancy, occupying it as his only or main residence.
It had not been seriously suggested that Mr Byrne was occupying Ifield Road as his only residence. His case was that he was occupying it at the material time as his main residence. On January 22, 1968, he gave notice to the freeholders, who were trustees, and later to Mrs Rowbotham, who had acquired the reversion of a lease in 1967, that he intended to exercise his rights to acquire the freehold of 37, Ifield Road under the provisions of the Act of 1967. There was some argument in the county court as to whether that was a good notice. The judge ruled it was, and the respondents issued a cross notice to this appeal, challenging that decision. It was unnecessary, however, to decide whether the notice was good or bad. The question for the court was whether the appellant had shown that he had occupied 37, Ifield Road as his main residence for five years prior to January, 1968. The county court judge had answered that question in the negative, and it was from that decision that Mr Byrne appealed. His counsel had failed to show that that decision was wrong. What was a man’s main residence was essentially a question of fact and degree which had to be looked at in a commonsense way. Mr Byrne’s “main” residence was where he had been living for the last eight or nine years, at New Cavendish Street. True, he was hoping to give that residence up very soon, but at the moment, in spite of his wishes to get out and move his family out, that was his main residence. He was also residing at Ifield Road because he wanted to take advantage of the Act of 1954, and he was perfectly entitled to do that. But it would be an affront to commonsense, on these facts, to say that Ifield Road was his main residence. It would be wrong to regard this case as a decision on a point of law. There was an infinity of variations of circumstances to take into account in deciding which was a man’s main home. Each case would differ from the other; there might be cases where it was very difficult to decide the question. But on the facts of this case, quite obviously Mr Byrne’s main residence up to March, 1963, was in New Cavendish Street.
Winn and Fenton Atkinson LJJ agreed and the appeal was accordingly dismissed.
