Landlord and tenant — Leasehold Reform, Housing and Urban Development Act 1993 — Lease extension — Whether attic box storeroom part of flat — Whether an appurtenance or an outhouse
The appellants are the freehold owners of
a building containing residential flats. The respondent holds a lease for a
term of 26 years (less 10 days) from June 24 1977 of a second-floor flat. He is
also a tenant of an attic box storeroom under a separate agreement for the same
term. In January 1994 the respondent served a notice under section 42 of the
Leasehold Reform, Housing and Urban Development Act 1993 claiming a right to a
new lease of the flat and the storeroom. The appellants’ applications to have
excluded from the new lease the storeroom were dismissed in the county court;
they appealed.
was not part of the flat nor was it an outhouse; it was an appurtenance within
the meaning of section 62(2) of the 1993 Act. Accordingly, the respondent was
entitled to a new lease which included the storeroom as an appurtenance within
the meaning of section 7(6)(b) of the Act.
The following cases are referred to in
this report.
Barras v Aberdeen Steam Trawling &
Fishing Co Ltd [1933] AC 402
Buszard v Capel (1828) 8 B&C 141
Evans v Angell (1858) 26 Bear 202
Jones v Wrotham Park Settled Estates
[1980] AC 74; [1978] 3 WLR 585; [1978] 3 All ER 527; (1978) 37 P&CR 289;
[1978] 1 EGLR 58; 246 EG 223, CA
Manson v Duke of Westminster [1981] QB
323; [1981] 2 WLR 428; [1981] 2 All ER 40; (1980) 41 P&CR 159; [1981] 2
EGLR 78; [1981] EGD 750; 259 EG 153, CA
Methuen-Campbell v Walters [1979] QB
525; [1979] 2 WLR 113; [1979] 1 All ER 606; (1978) 38 P&CR 693; [1978] 2
EGLR 58; 247 EG 899, CA
Trim v Sturminster Rural District Council
[1938] 2 KB 508
This was an appeal by Charles Gerald John
Cadogan, Viscount Chelsea and Cadogan Estates Ltd from a decision of Judge
Krikler in Willesden County Court, who had dismissed an application by the
appellants in connection with the claim by the respondent, Donald McGirk, for a
new lease under the Leasehold Reform, Housing and Urban Development Act 1993.
Anthony Radevsky (instructed by Lee &
Pembertons) appeared for the appellants; John Male (instructed by Bird &
Bird) represented the respondent.
Giving judgment at the invitation of
Waite LJ, Millett LJ said:
The question in this appeal is whether an attic box storeroom on the sixth
floor of a mansion block of flats forms part of the second-floor flat to which
it has been allocated. If it does, then the respondent is entitled to have the
storeroom included in the new lease of his flat to be granted to him under the
provisions of Chapter II of Part I of the Leasehold Reform, Housing and Urban
Development Act 1993 (‘the Act’). If it does not, then the storeroom will be
excluded from the new lease and the respondent’s right to possession of the
storeroom will come to an end in June 2003.
The judge held that the storeroom was an
‘appurtenance’ of the flat within the meaning of section 62(2) of the Act. He
rejected the respondent’s alternative argument that it was an ‘outhouse’ within
the subsection, from which decision the respondent appeals by his respondent’s
notice. We gave leave to the respondent to raise a yet further alternative
before us, viz: that the storeroom was part of the flat as defined by section
101(1) of the Act.
Facts
The facts are straightforward and are not
in dispute. The appellants are the freehold owners of a building known as the
Willett Building in Sloane Square. This comprises commercial premises in the
basement and on the ground and part of the first floors. The upper floors are
divided into two linked buildings known as Wyndham House and Wellesley House,
which are purpose-built mansion blocks of residential flats.
The respondent is the tenant of Flat 3,
Wyndham House. Wyndham House contains 10 flats and flat 3 is on the second
floor. The respondent holds the flat under a lease dated December 12 1977 for a
term of 26 years (less 10 days) from June 24 1977 at an annual rent of £100.
The term expires on June 13 2003.
The respondent is also the tenant of
storeroom no 14 on the sixth or attic floor under an agreement also dated
December 12 1977 and for the same term as the flat at the annual rent of £1.
Under the terms of the agreement the storeroom may be used ‘for the storage of
normal household goods and effects only’ and may be assigned or sublet with the
flat, but not separately.
The respondent has lived in the flat
since 1969. The flats in Wyndham House are spacious but are old-fashioned and
short of storage space. There are no built-in cupboards or wardrobes. For this
reason, storage spaces in the attic on the sixth floor and in the basement were
allotted to residents. The respondent has had the use of storeroom 14 since
1969, though it was not included in a formal lease to him until 1977. In that
year the respondent purchased his current leasehold interest in the flat and on
the same date entered into a separate agreement for the storeroom. The
respondent and his wife use it for storing suitcases and seasonal clothing and
bedding for which there is inadequate storage space in the flat.
In January 1994 the respondent served a
notice under section 42 of the Act claiming to exercise his right to a new
lease of his flat ‘on the same terms as the present lease … but including the
attic boxroom within the demise’. The appellants accept that the respondent is
entitled to a new lease of the flat but dispute his entitlement to have the
boxroom included therein. In May 1994 the appellants issued proceedings in West
London County Court for a declaration that the respondent was not entitled to
have the storeroom included in the new lease of his flat. On October 26 1994,
after the case had been transferred to Willesden County Court, Judge Krikler
held that the.
dismissed the application.
Legislation
Leasehold enfranchisement was introduced
by the Leasehold Reform Act 1967 (‘the 1967 Act’). This gave residential
tenants of houses held on long leases at low rents the right to acquire either
the freehold or an extended lease. The 1967 Act did not apply to blocks of
flats, and because of the definition of ‘house’ it excluded many residential
properties in single occupation, such as the mews house partly built over a
garage in different occupation, which would normally be regarded as houses. The
1993 Act was passed in order to extend the benefits of leasehold
enfranchisement to tenants who were outside the protection of the 1967 Act. It
conferred rights of collective enfranchisement on the tenants of blocks of
flats who were collectively entitled to acquire the freehold of the premises in
which their flats were contained, and individual rights on each of the tenants
to acquire new 90-year leases of their own particular flats. The right to
collective enfranchisement is conferred by Chapter I of Part I of the Act, and
the individual right to acquire a new lease is conferred by Chapter II of Part
I of the Act.
The individual right of a tenant to
acquire a new lease of his particular flat is conferred by section 39 of the
Act. Section 39(2)(a) requires the tenant to be a qualifying tenant of the
flat. Section 39(3) incorporates sections 5, 7 and 8 of Chapter I. Section 5
defines ‘qualifying tenant’ as a tenant of the flat under a long lease at a low
rent. Section 7 defines ‘long lease’. Section 7(6) provides:
(6) Where in the case of a flat there are
at any time two or more separate leases, with the same landlord and the same
tenant, and —
(a) the property comprised in one of
those leases consists of either the flat or a part of it (in either case with
or without any appurtenant property), and
(b) the property comprised in every other
lease consists of either a part of the flat (with or without any appurtenant
property) or appurtenant property only,
then in relation to the property comprised
in such of those leases as are long leases, this Chapter shall apply as it
would if at that time —
(i) there were a single lease of that
property, and
(ii) that lease were a long lease;
but this subsection has effect subject to
the operation of subsections (3) to (5) in relation to any of the separate
leases.
‘Appurtenant property’ is defined by
sections 1(7) (applied to section 7 by section 7(7)). This reads:
(7) In this section —
‘appurtenant property’, in relation to a
flat, means any garage, outhouse, garden, yard or appurtenances belonging to,
or usually enjoyed with, the flat;
‘Low rent’ is defined by section 8.
For the purposes of Part I (that is to
say, both Chapter I and Chapter II) ‘flat’ is defined by section 101(1). This
reads:
101.(1) In this Part — …
‘flat’ means a separate set of premises
(whether or not on the same floor) —
(a) which forms part of a building, and
(b) which is constructed or adapted for
use for the purposes of a dwelling, and
(c) either the whole or a material part
of which lies above or below some other part of the building; …
For the purposes of Chapter II only,
‘flat’ is given an extended meaning by section 62(2). This reads:
(2) Subject to subsection (3), references
in this Chapter to a flat, in relation to a claim by a tenant under this
Chapter, include any garage, outhouse, garden, yard and appurtenances belonging
to, or usually enjoyed with, the flat and let to the tenant with the flat on
the relevant date (or, in a case where an application is made under section 50(1),
on the date of the making of the application).
Subsection (3) is not material.
It is clear that a tenant who obtains a
new lease of his flat is entitled to exercise the rights of passage over the
common parts and to use the lift and to enjoy the other easements and
advantages to which he was formerly entitled. This is not dealt with expressly
in Chapter II of the Act, and there was some discussion before us whether such
rights are ‘appurtenances’ of the flat and so within the extended definition of
the flat in section 62(2), or come within section 57(1) which entitles the
tenant to a new lease ‘on the same terms as those of the existing lease’. In
the absence of any indication to the contrary, I would have expected them to be
treated as ‘appurtenances’; the expression ‘the terms of the lease’ would
ordinarily refer to the covenants and conditions of the lease rather than the
extent of the demise. But section 57 (1) provides for the terms of the existing
lease to be modified, inter alia, to exclude from the new lease property
included in the existing lease but not forming part of the flat. This is an
indication that the expression ‘terms of the existing lease’ may need to be
given a wider interpretation than would be usual. It is not, however, necessary
to decide the point, and I prefer to leave it open for decision in a case where
it is material to the result.
Principles of construction
There was some discussion before us of
the proper approach which should be adopted to the construction of the Act. Two
particular questions were canvassed. The first was whether the Act, being
expropriatory in nature, must be strictly construed. A man, it was said, is not
to have his property compulsorily acquired except by plain language. Support
for this proposition may be found in the judgments of all three members of this
court in Methuen-Campbell v Walters [1979] QB 525*, which was a
decision on the 1967 Act. This is not, however, the approach which has been
adopted since. In Jones v Wrotham Park Settled Estates [1980] AC
74† at p113E Lord Russell said of this point:
*Editor’s note: Also reported at [1978] 2
EGLR 58
†Editor’s note: Also reported at [1978] 1
EGLR 58
I attribute minimal if any force to this
point, and regard only the statutory provisions.
Similarly in Manson v Duke of
Westminster [1981] QB 323* at p332 F Stephenson LJ said:
*Editor’s note: Also reported at [1981] 2
EGLR 78
I would … regard the expropriatory nature
of the Act as of little weight in construing its provisions …
I respectfully agree. It would, in my
opinion, be wrong to disregard the fact that, while the Act may to some extent
be regarded as expropriatory of the landlord’s interest, nevertheless it was
passed for the benefit of tenants. It is the duty of the court to construe the
Act fairly and with a view, if possible, to making it effective to confer on
tenants those advantages which parliament must have intended them to enjoy.
The other question concerned the extent
to which the court may obtain guidance to the meaning of a word or phrase in a
statute from judicial decisions on the same word or phrase in earlier
legislation. The correct approach was laid down by Viscount Buckmaster in Barras
v Aberdeen Steam Trawling & Fishing Co Ltd [1933] AC 402 at p411:
It has long been a well established
principle to be applied in the consideration of Acts of Parliament that where a
word of doubtful meaning has received a clear judicial interpretation, the
subsequent statute which incorporates the same word or the same phrase in a
similar context, must be construed so that the word or phrase is
interpreted according to the meaning that has previously been assigned to it.
Emphasis supplied.
The rule has often been applied, but the
qualification to which I have drawn attention is of the first importance. The
rule is invoked by the appellants in relation to the meaning of the word
‘appurtenances’ in section 62(2), and I shall return to the application of the
rule when considering the meaning of the word in that subsection.
There is, however, one further matter
which, although not raised by either party, is of general relevance when
determining the effect of the statutory provisions which are under
consideration in the present case. The tenant of a flat in a block of flats may
have two distinct rights, an individual right under Chapter II to obtain a new
lease of his particular flat and a right to join with the other tenants in
exercising the collective right under Chapter I to acquire the freehold
interest in the block. Even if all the tenants in a block exercise their
individual rights to obtain new leases of their own flats, the landlord will
retain the ownership of the common parts. If, on the other hand, the tenants
exercise their collective right to acquire the freehold interest in the entire
block, they will acquire the common parts. Given the close interrelation
between Chapter I and Chapter II, I approach the statutory definition of the
premises to be included in the new lease of an individual flat with a strong
predisposition to assume that, if all the tenants were to obtain new leases of
their particular flats under Chapter II, then with the sole exception of the
common parts the landlord would not retain any part of the premises in which
the flats are contained which he would not retain if they had exercised their
collective right to acquire the whole premises under Chapter I.
Storage space and storage rooms which
have been allocated to particular flats are not, of course, comprised in the
common parts: see section 4(2). It is not clear whether Wyndham House is within
the definition of premises to which Chapter I applies, but the existence of the
storerooms would not affect this question. If Chapter I does apply to Wyndham
House and if sufficient of the tenants were to exercise their collective rights
of enfranchisement, they would be entitled to acquire the freehold of Wyndham
House and the storerooms in the attic and basement would be included in the
property to be acquired.
Flat
The first question is whether the
storeroom on the sixth floor forms part of the flat on the second floor. This
depends on whether it is part of the same ‘separate set of premises (whether or
not on the same floor)’. The words in parenthesis make it clear that
maisonettes are included, but they may have a wider effect than this. In my
opinion, the word ‘separate’ suggests both ‘physically separate’ or ‘set apart’
and ‘single’ or ‘regarded as a unit’. The definition is concerned with the
physical configuration of the premises. It was conceded by the appellants that
the rooms which form part of the flat do not have to be contiguous. Many sets
of chambers in the Inns of Court are physically divided by a common staircase
and landing but they would, I think, be regarded as a single ‘separate set of
premises’. The question is one of fact and degree, and must largely be one of
impression. The degree of proximity of any part of the premises which is not
contiguous is likely to be decisive. I have come to the clear conclusion that
the storeroom on the sixth floor cannot be said to be part of the same separate
set of premises as the rooms in the second-floor flat. It was allocated to and
let with the flat, but it does not form part of the flat. I do not reach this
conclusion because the storeroom is held under a separate lease, for section
7(6) expressly contemplates the possibility of different parts of the same flat
being let under separate leases. What is decisive to my mind is the absence of
any natural or physical relationship between the flat and the storeroom. The
storeroom could equally well have been allocated to and let with any of the
other flats; just as any of the other storerooms could equally well have been allocated
to and let with the flat. Section 7(6) covers the case of a single physical
unit comprised in two leases. In the present case there are two physical units
let together.
Outhouse
The respondent submits that the storeroom
is: (i) outwith the flat, (ii) used in connection with the flat and ancillary
to the flat, and (iii) belongs to the flat in the sense that has been allocated
to and let with the flat and may be assigned with the flat.
In my judgment, these facts are not
sufficient to make the storeroom an ‘outhouse’. The essential characteristic of
an outhouse is that is outside. The Shorter Oxford Dictionary defines
‘outhouse’ as:
a subsidiary building in the grounds of
or adjoining a house, as a stable, barn, shed etc.
The respondent argues that the question
is whether the storeroom is an ‘outhouse’ of the flat, not whether it is an
‘outhouse’ of Wyndham House; that the principal building is the flat, not
Wyndham House; and that it is sufficient if the storeroom is outside the flat
even if it is inside Wyndham House.
I do not accept this. An ‘outhouse’ is an
outbuilding or outside building in the grounds of or adjoining a principal
building. Neither section 1(7) nor section 62(2) requires the outhouse to be an
‘outhouse of the flat’. It is sufficient if it is ‘an outhouse … belonging to,
or usually enjoyed with, the flat …’. In my opinion, it is sufficient if the
outhouse is an outhouse in the grounds of or adjoining Wyndham House. Any such
outhouse which was enjoyed with and let to the tenant of a particular flat with
his flat would come within section 62(2) and so within the extended definition
of the flat for the purposes of Chapter II.
But it must be an ‘outhouse’, ie outside
any other building. Like the judge, I cannot accept that a room within a
building can properly be described as an ‘outhouse’ of another set of rooms
within the same building. It is simply not an ‘outhouse’ at all.
Appurtenance
If the storeroom is an ‘appurtenance’ of
the flat within the meaning of section 62(2) of the Act, then it is
‘appurtenant property’ within the meaning of section 1(7) which was ‘let with’
the flat within the meaning of section 7(6) and falls within the extended
definition of ‘the flat’ in section 62(2).
The changing meaning of the word
‘appurtenance’ is traced in the judgments of Goff and Buckley LJJ in Methuen-Campbell
v Walters, [1979] QB 525 at pp533–6 and pp542–3 respectively. It was
formerly a term of art. Strictly it did not include land but was restricted to
incorporeal hereditaments; it was firmly established that land could not be
appurtenant to other land: see Coke upon Littleton 18th ed (1823) p123b
section 184; Buszard v Capel (1828) 8 B&C 141 and other
cases. This meaning, however, would yield to the context, and came in time to
be replaced by another, viz: anything which would pass under a
conveyance of the principal subject-matter without express mention: see Evans
v Angell (1858) 26 Beav 202 per Sir John Romilly MR at p205. The
appurtenances of a house thus came to include the orchard, yard, curtilage and
gardens of the house.
It was against that background that the
Housing Act 1936 defined ‘house’ as including:
any yard, garden, outhouses, and
appurtenances belonging thereto or usually enjoyed therewith.
In Trim v Sturminster Rural
District Council [1938] 2 KB 508 Slesser LJ said at p516:
no case has been cited to us in which the
word ‘appurtenance’ has ever been extended to include land, as meaning a
corporeal hereditament, which does not fall within the curtilage of the yard of
the house itself, that is, not within the parcel of the demise of the house.
As Goff LJ observed in Methuen-Campbell
v Walters at p535, this confined the word ‘appurtenances’ to the
curtilage of the house.
When in 1967 parliament came to grant
residential tenants under long leases at low rents the right to acquire the
freehold or an extended lease of their houses, it adopted a similar but updated
version of the same definition. Section 2(3) of the 1967 Act referred to
… any garage, outhouse, garden, yard and
appurtenances which at the relevant time are let to him with the house and are
occupied with and used for the purposes of the house or any part of it by him
or by another occupant.
The main elements of the definition were
unchanged except for the addition of the garage, but the qualifying words at
the end of the definition were different. The words ‘belonging thereto or
usually enjoyed therewith’ were replaced by the words ‘let to him with the
house and … occupied with and used for the purposes of the house or any part of
it’.
In Methuen-Campbell v Walters
it was assumed that the word ‘appurtenances’ was apt to include land. Buckley
LJ suggested that the reference to occupation and use was sufficient to admit
such an interpretation. But nothing could pass which was not within the
curtilage of the house and so capable of passing under a conveyance of the
house without express mention.
Section 62(2) of the Act reproduces the
language of the definition of ‘house’ in Section 2(3) of the 1967 Act, but the
qualifying words at the end of the definition return to the formula employed in
the 1936 Act. It is not, however, suggested that this is sufficient to exclude
land from the ambit of the word ‘appurtenances’. In my judgment, it is too late
now to suppose that parliament has returned to the older and stricter usage in
this context.
The appellants, however, submit on the
authority of Methuen-Campbell v Walters that the storeroom is not
an ‘appurtenance’ of the flat because: (i) it is not within the curtilage of
the flat; and (ii) because it would not pass under an assignment of the flat
without express mention. They invoke the principle of statutory construction to
which I have referred, and submit that the context is the same, viz the
right of a residential tenant to acquire a new lease of the demised premises.
But the statutory context is not
identical. There are two differences, one relatively minor and one more
significant. The first is that the 1967 Act contained no equivalent of section
7(6) of the Act. Given the presence of section 7(6), which contemplates that
appurtenant property may be contained in a separate demise and that the
separate demise may contain appurtenant property only, I find it difficult to
believe that parliament can have intended to confine ‘appurtenances’ to
property which would pass under an assignment of the flat alone. I recognise
that this is not a complete answer, for ‘appurtenant property’ includes a
garage or outhouse as well as ‘appurtenances’ properly so called; but the point
is not without significance. The essential qualification, it seems to me, is
that the appurtenant property should ‘belong to, or [be] usually enjoyed with,
the flat and [be] let to the tenant with the flat on the relevant date’, not
that it should be capable of passing under an assignment of the flat without
express mention.
But the main change in the context in
which the statutory language falls to be applied is that the 1967 Act applied
to houses (as restrictively defined) and the Act applies to flats, including
flats in mansion blocks of flats. The subject-matter of the 1967 Act was a
house with its own curtilage. The subject-matter of Chapter II of the Act,
however, is a flat, which may or not have a curtilage (for a garden flat may
have a garden and a basement flat may have an area) but which also forms part
of larger premises with their own curtilage. The ‘appurtenance’ must be an
appurtenance of the flat in the sense that it must belong to or be usually
enjoyed with the flat and must be let with the flat. The question is whether it
must also be within the curtilage (if any) of the flat or whether it is
sufficient if it is contained within the premises of which the flat forms part
or is situate within the curtilage of those premises.
I am of opinion that the latter is
sufficient. I am influenced by two considerations. First, I find it difficult
to believe that parliament can have intended that storerooms allocated to
particular flats which would have been acquired from the landlord if the
tenants had exercised their collective rights should be excluded from the new
leases of the particular flats to which they have been allocated and be
retained by the landlord even if all the tenants were to exercise their
individual rights. Second, parliament cannot sensibly have intended to
distinguish between a right to make use of a storage or other space and an
actual demise of the space. If the appellants’ construction of the Act is
right, a tenant of an upstairs flat who was granted the right to park his car
in a numbered parking space in the forecourt of his block of flats would be
entitled to have a similar right on the grant of a new lease of his flat;
whereas a tenant who had an actual demise of a parking space would not. The
absurdity of this is all the greater when it is remembered that if the tenant
had a demise of a lock-up garage and not merely a parking space he would be
entitled to have it included in the new lease.
The immediate context provides further
support for the construction which I have favoured. Just as the ‘outhouse’ must
be in the grounds of the block of which the flat forms part, so, in my opinion,
the ‘appurtenance’, if consisting of land or a building, must be within the
curtilage of the block but need not be within the curtilage (if any) of the
flat. But whereas the ‘outhouse’ must be outside the main building, the
‘appurtenance’ may be within it.
In my judgment, this approach gives
proper weight to the meaning which has been ascribed to the word ‘appurtenance’
in the 1967 Act but has proper regard to the changed context in which the word
is used in the Act. As I see it, it is necessary first to identify the separate
set of rooms within the building which constitutes the flat; next to identify
other areas within the building which or the right to enjoy which may be
appurtenant to the flat; and finally to consider the grounds of the building in
order to identify any garage, outhouse, garden, yard or other erection or land
within the curtilage of the building which or the right to enjoy which is
usually enjoyed and let to the tenant with the flat.
Conclusion
I conclude that the storeroom is not part
of the flat as defined by section 101(1) of the Act and is not an ‘outhouse’
within the meaning of section 62(2); but that it is an ‘appurtenance’ of the
flat within the meaning of the latter subsection, and that accordingly the
respondent is entitled to have it included in the new lease of his flat. I
would dismiss the appeal.
Waite and Thorpe LJJ agreed and did not add anything.
Appeal allowed.