Leasehold Reform Act 1967 — Application for freehold by leaseholder — Whether at the relevant time the leaseholder had been occupying the premises as a residence for the last three years or for periods amounting to three years in the last 10 years — Whether only a main residence — Question as to extent of occupation of ‘other residence’ within the meaning of para 6(1)(d)(ii) of Schedule 3, Part II, to 1967 Act — Allegations of misrepresentation or concealment of material facts on the part of the leaseholder — County court judge’s dismissal of application upheld by Court of Appeal — Order made under section 20(6) of 1967 Act making void any further notice claiming enfranchisement within five years beginning with order
and litigation in this case arose from the fact that in addition to the
leasehold premises which the applicant had purchased with a view to
enfranchisement, the applicant
premises consisted of a shop, which was let, with a residential flat or
maisonette above — In her notice of claim to the freehold, in the standard form
under the Leasehold Reform (Notices) Regulations 1967, the applicant stated
that she had occupied the maisonette as her only residence since the date of
its acquisition in 1984 — In reply to the question in the form of notice as to
the applicant’s occupation of any ‘other residence’ she answered ‘none’ — The
freeholders challenged her claim on the grounds that she had not occupied the
maisonette as her only or main residence for a period of three years and that
she was not in such occupation on the date of her notice, February 18 1988 —
The applicant issued an originating application in the county court applying
for enfranchisement and in answer the freeholders denied her claim — They
requested further particulars relating to places occupied and periods of
occupation during the relevant period, to which the applicant replied with
references to foreign holidays and occasional nights spent with a friend, but
made no reference to any occupation of the cottage — At the trial the
respondent freeholders obtained leave to allege misrepresentation or
concealment of material facts on the part of the applicant
the question of misrepresentation or concealment, the county court judge dealt
with four main issues — He accepted that at the date when the applicant served
her statutory notice, February 18 1988, she had been occupying the maisonette
as her only or main residence for the requisite period — Her notice, however,
failed to comply with para 6(1)(d)(ii) of Schedule 3 to the 1967 Act by
omitting to state that during the relevant period she had another residence,
namely, the cottage — This omission rendered the notice invalid unless the
failure was merely an ‘inaccuracy in the particulars required’ within the
meaning of para 6(3) of Schedule 3 — The applicant argued that the failure to
mention the cottage was such an inaccuracy and that the validity of the notice
was saved by para 6(3) — The judge, however, who took an unfavourable view of
the applicant’s evidence at the trial, refused to accept that the omission was
a mere ‘inaccuracy’ — He held that the omission was deliberate — Hence the
notice was invalid — The judge’s finding was that the notice was ‘supported by
concealment or misrepresentation of material facts’ — He then ordered, in
accordance with section 20(5) and (6) of the 1967 Act that any further notice
by the applicant claiming enfranchisement would be void if given in the next
five years
reviewing the judge’s reasoning and conclusions, the Court of Appeal held that,
unless there were grounds for upsetting the judge’s finding of
misrepresentation or concealment of material facts, there was no justification
for disturbing his decision — In the court’s view, there was ample material for
his finding that the applicant’s notice was supported by misrepresentation or
concealment — The judge’s order under section 20(6) of the 1967 Act followed
upon that finding — Appeal dismissed
The following
cases are referred to in this report.
Cresswell v Duke of Westminster [1985] 2 EGLR 151; (1985) 275 EG 461;
25 RVR 144, CA
Poland v Earl Cadogan [1980] 3 All ER 544; (1980) 40 P&CR 321;
[1980] EGD 769; 250 EG 495, CA
This was an appeal
by Mrs Wendy Denise Dymond from a decision of Judge Peck, at Barnstaple County
Court, dismissing her application under the Leasehold Reform Act 1967 to
acquire the freehold of a property at 17 Bridgeland Street, Bideford, Devon.
The respondents to the application and the appeal were the trustees for the
time being of the Bideford Bridge Trust.
Kirk Reynolds
(instructed by Peter Peter & Wright, of Bideford) appeared on behalf of the
appellant; Simon Monty (instructed by Bazeley Barnes & Bazeley, of Bideford)
represented the respondents.
Giving
judgment, SLADE LJ said: This is an appeal by Mrs Wendy Denise Dymond from a
judgment of His Honour Judge Peck given in the Barnstaple County Court on March
26 1990. By his order he dismissed her application, made in reliance on the
Leasehold Reform Act 1967, to acquire the freehold of a property known as 17
Bridgeland Street, Bideford, Devon (‘the house’). She wished to acquire it from
the respondents, who were the freeholders of the house and are the present trustees
of the Bideford Bridge Trust.
I find it
convenient to begin this judgment by referring to certain relevant provisions
of the Leasehold Reform Act 1967, as amended (‘the 1967 Act’). Section 1(1), so
far as material, provides as follows:
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 . . . of the house and premises where —
(a) his tenancy is a long tenancy at a low rent
and . . . the rateable value of the house and premises on the appropriate day
is not (or was not) more than £200 . . ., and
(b) 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 . . .) he has been tenant of the house under a long tenancy at a low
rent, and occupying it as his residence, for the last three years or for
periods amounting to three years in the last ten years . . .
In the present
case it is common ground that Mrs Dymond’s tenancy of the house satisfied
condition (a) and that at the relevant time, when she gave notice of her
desire to have the freehold, she had been tenant of the house under a long
tenancy at a low rent for the last three years. It is, however, in dispute
whether at the relevant time she had been occupying it as her residence for the
last three years or for periods amounting to three years in the last 10 years.
Section 1(2)
defines what is meant by the phrase ‘occupying the house as his residence’. So
far as material it provides:
In this Part
of this Act references, in relation to any tenancy, to the tenant occupying a
house as his residence shall be construed as applying where, but only where,
the tenant is, in right of the tenancy, occupying it as his only or main
residence (whether or not he uses it also for other purposes); but —
(a) references to a person occupying a house
shall apply where he occupies it in part only; . . .
Schedule 3,
Part II, para 6(1) of the 1967 Act requires that a tenant’s notice under Part I
of his desire to have the freehold of a house and premises shall be in the
prescribed form and shall contain a number of specified particulars, including
in subpara (d):
the periods
for which since the beginning of the preceding ten years and since acquiring
the tenancy the tenant has and has not occupied the house as his residence,
together with the following additional particulars about the periods for which
during that time he has so occupied the house, that is to say, —
(i) what parts, if any, of the house have not
been in his own occupation and for what periods; and
(ii) what other residence, if any, he has had for
what periods, and which was his main residence.
Para 6(3), so
far as material, provides:
The notice
shall not be invalidated by any inaccuracy in the particulars required by this
paragraph or any misdescription of the property to which the claim extends; . .
.
Section 20 of
the 1967 Act provides for certain sanctions. Subsection (5) provides:
Where a person
gives notice of his desire to have the freehold . . . and the notice either is
set aside by the court or withdrawn, or ceases to have effect, or would, if
valid, cease to have effect, then if it is made to appear to the court —
(a) that the notice was not given in good faith;
or
(b) that the person giving the notice attempted
in any material respect to support it by misrepresentation or the concealment
of material facts; the court may, on the application of the landlord, order
that person to pay to the landlord such sum as appears sufficient for
compensation for damage or loss sustained by the landlord as the result of the
giving of the notice.
Subsection (6)
provides:
In any case
where under subsection (5) above the court has power, on the application of the
landlord, to order a person to make a payment to the landlord, the court
(whether or not it makes an order under that subsection) may, on the
application of the landlord, order that any further notice given by that person
under this Part of this Act of his desire to have the freehold . . . of the
same house or any part of it, with or without any other property, shall be void
if given within the five years beginning with the date of the order.
Against this
statutory background, I turn to the history of this
found by the judge. In 1968 Mrs Dymond’s then husband and she purchased jointly
a property known as Hillsborough Cottage, Atlantic Way, Westward Ho!, Devon,
which is about 4 miles from Bideford. She and her husband brought up their
three sons in this cottage until, unfortunately, their marriage broke down. The
husband then moved out and the property became vested in Mrs Dymond’s sole
name. In early 1984 she was living there with her three sons, Lee, Simon and
Timothy, then aged respectively 17, 15 and 12. The judge described the cottage
as having three good bedrooms, substantial accommodation and a garden.
For some time
before 1984 Mrs Dymond had been coming frequently to Bideford. Her parents
lived there and her mother was not well. In 1984 her father who, as the judge
described, is a large property owner in Bideford, suggested to her that she
should buy the lease of the house. It comprised a shop, which was let, and
above it a flat or maisonette in which she could live. It was held under a long
tenancy created on March 1 1896, whereby it was devised for a term of 99 years
from December 25 1895. In due course she entered into this transaction and the
lease was assigned to her by an assignment of October 26 1984 made in her
favour by one of her father’s companies for a monetary payment.
The judge
found as follows:
I have no
doubt that the lease was assigned with the specific purpose of obtaining the
ownership of the freehold under the Leasehold Reform Act. I have no doubt at
all that the eyes of all the persons concerned were wide open, and that it was
done with the intention of having the lease enfranchised at the earliest
possible moment.
If Mrs Dymond
was to acquire the right to have the lease enfranchised at the earliest
possible moment, she was no doubt aware, or was made aware, that she had to
occupy it as her only or main residence for the next three years. Her evidence
was that she moved into the house on October 4 1984, that is to say about three
weeks before the assignment was executed, and occupied it as her home at least
until February 18 1988, which, as I shall explain hereafter, is the relevant
date.
The judge
described the accommodation in the flat as smaller than that of Hillsborough
Cottage and somewhat cramped. It does appear to have been somewhat cramped. In
her oral evidence Mrs Dymond described it as having two bedrooms, a boxroom, a
bathroom through one bedroom, and a kitchen/living room. When she moved in, Lee
and Timothy went with her but, at least for the time being, Simon stayed on at
the cottage. According to her evidence, thereafter her home was at the house.
However, she did not sell the cottage. She continued to pay the mortgage
interest on it. At some times the cottage was let and at some times her sons
lived there, both when below school-leaving age and after they had left school.
She looked after the garden at times and there was a room set aside for her
flower decoration. She kept furniture in a shed.
On November 2
1987 she served a notice under the 1967 Act stating her desire to acquire the
freehold of the house. It is common ground that that notice was invalid, but it
appears that at that stage she did not realise its invalidity. The judge found
that while she treated the house as her main residence up to October 1987,
thereafter she spent less and less time there and was spending her time at
Hillsborough Cottage and at a house to which she referred as the ‘Manor House’.
The Manor House belongs to a Mr Wilson, an antiques dealer. The judge said that
it appeared that she slept there two nights a week, but not on other nights.
On February 18
1988 Mrs Dymond served a second notice of her desire to acquire the freehold.
This, she asserts, was a valid notice. It is the relevant notice for our
purposes. February 18 1988 is correspondingly the relevant date for the purpose
of considering her claim.
The notice of
her claim contained a schedule in common form which required the completion of
a number of particulars following the pattern of para 6(1)(d) of
Schedule 3 of Part II to the 1967 Act. Para 6 of the schedule to the notice
required her to state:
Periods for
which in the last ten years and since acquiring the tenancy the claimant
(i) has not occupied the house as his residence
(ii) has occupied the house as his residence
In the case of
periods stated under (ii)
(a) state what parts (if any) of the house have
not been in his own occupation and for what periods
(b) state what other residence (if any) he has
had and for what periods, and which was his main residence.
In answer to
these items Mrs Dymond made no entry in response to (i). She answered (ii) by
saying:
The claimant
has occupied the maisonette as her only residence since the date of acquisition
(and before, ie, by the 4th October 1984).
She answered
(a) by saying:
The lock-up
shop since the date of acquisition.
Perhaps most
materially for present purposes, she answered (b) by saying ‘None’.
On April 26
1988 the respondents served a notice by way of reply in which they did not
admit Mrs Dymond’s claim, on the grounds, among others, that:
(b) You have not occupied the house as your only
or main residence for a period of three years
(c) You were not in occupation of the premises
as your only or main residence on February 18 1988:
This was
followed by the issue of an originating application by Mrs Dymond, applying for
enfranchisement of the property. In para 6 of the application she stated:
On the date
when I served the notice referred to in paragraph 4 hereof
— that is the
notice of February 18 1988 —
I have been a
tenant of the house and premises under a long tenancy at a low rent and I have
been occupying it as my sole residence for the previous three years . . .
On October 20
1988 the respondents served an answer, in which para 6 of the originating
application was denied. In particular it was denied that:
. . . the
Applicant was at the date of the notice given by her residing in the premises
and further it is denied that she had been occupying the premises as her sole
residence for the previous three years.
On April 13
1989 Mrs Dymond served an amended application in which para 6 was amended to
read:
On the date
when I served the Notice referred to in paragraph 4 hereof, I have been a
tenant of the house and premises under a long tenancy at a low rent and I have
been occupying it as my sole or main residence for the previous three years or
for periods amounting to three years in the last ten years.
Not
surprisingly, perhaps, this amended application provoked a request for further
and better particulars. Later in April of 1989 further and better particulars
were delivered of para 6 of the amended application. The first request read:
Please state,
precisely, all the dates on which the Applicant contends that she was resident
in the premises.
To that an
answer was given:
The applicant
does not keep a record or diary and cannot accurately recall or say where she
was on each day between October 26 1984 and February 18 1988. However, the
Applicant contends she was resident in the premises in the sense that it was
her permanent home at all times throughout that period. The Applicant has spent
occasional nights at the home of her parents in Bideford, with friends in
Plymouth, with friends in St Albans and with friends in Monkleigh. She has also
been on foreign holidays as to which see below.
The second
request read as follows:
Please
specify all other places where, in the period October 26 1984 to February 18
1988, the Applicant has resided for an aggregate of more than two weeks,
setting out, in addition the dates of such periods of residence.
Mrs Dymond’s
reply reads as follows:
The Applicant
has had two foreign holidays in the period mentioned and each of those holidays
were of about three weeks duration but the Applicant cannot recall the precise
dates. The Applicant has spent occasional nights away from the premises as set
out in answer to request 1 above. The Applicant cannot say whether the total
number of nights so spent away from home exceeds 40 in aggregate.
I pause to
observe that neither of those answers makes any reference at all to
Hillsborough Cottage.
On June 10
1988, however, Mrs Dymond’s solicitors wrote a letter to the respondents’
solicitors in which mention of the cottage was included. We have been told that
this letter was not before the judge, but it has been admitted in evidence
before this court by agreement of the parties. The final paragraph of that
letter, which makes reference to Hillsborough Cottage, reads as follows:
Whilst it is
of course for our client to establish her right under the Act, we think it only
fair and reasonable that our client should know the facts upon
Bridgeland Street is her only residence, although she does own one other
property in Westward Ho! which is let as flats.
At the start
of the hearing before the judge, as appears from his notes of the hearing, the
respondents’ counsel applied for, and obtained, leave to amend their answer by
alleging material misrepresentation in the notice of February 18 1988. Their
application for leave to amend was granted and, although no copy of an amended
answer is available, it seems clear that thenceforward the question of
misrepresentation became an issue in the proceedings.
The judge
heard oral evidence from a number of witnesses, including Mrs Dymond herself,
Mr Wilson and some three other witnesses on her side and three witnesses for
the respondents. Apart from the question of misrepresentation, it would appear
that there were four main issues argued before the judge which Mr Reynolds, Mrs
Dymond’s counsel in this court, has helpfully identified for our assistance as
follows:
(a) Whether at the date when Mrs Dymond served
her notice on February 18 1988, she had been occupying the house as her ‘only
or main residence’ within the meaning of section 1(2) of the 1967 Act for the
requisite period
(b) Whether her notice failed to comply with the
requirement of paragraph 6(1)(d)(ii) of Schedule 3 to the 1967 Act, in that it
failed to state that she had during the relevant period another residence,
namely Hillsborough Cottage.
(The effective
issue there, of course, was whether the cottage was or was not a ‘residence’
within the meaning of the Act.)
(c) If so, whether failure to comply with this
requirement invalidated the notice or whether it was a mere ‘inaccuracy in the
particulars’ within the meaning of paragraph 6(3) of the Schedule, which did
not invalidate the notice.
Then, after he
had delivered his judgment, the judge, on the respondents’ application, had to
decide a further issue, namely:
(d) Whether Mrs Dymond should be barred under
section 20(6) of the 1967 Act from serving a further notice of a claim for
enfranchisement for a period of five years from the date of the judgment.
The judge
decided issue (a) in favour of Mrs Dymond. As to that point, he said this (at
pp 5 and 6 of his judgment):
The
respondents say that albeit the Applicant was residing in the flat until
October 1987, she was not living there until well after the assignment and that
she effectively vacated the flat as her real residence after she assumed that
the period under the Act was completed.
I am not
satisfied that she did not occupy the flat from the outset. On any logical
point of view she would move in as soon as possible. I think she did so and
that she treated it as her main residence to October 1987.
Thereafter I
think she spent less and less time there and was spending her time at the Manor
House
— that is, Mr
Wilson’s house —
and the
cottage. Albeit that the burden is on the Applicant to show that she treated
the flat as her main residence up to and on the date of the Notice, I think
there is no satisfactory evidence to prove the contrary. The electricity and
the telephone bills show she spent more and more time away, but I think it is
very difficult to say that the flat ceased to be her main residence. If I was
left only with that decision, I would find in her favour and that the flat was
her main residence at the material time.
The judge’s
decision on this issue (a) has been challenged by the respondents in a
respondents’ notice. His decision on issues (b), (c) and (d), however, are the
subject of Mrs Dymond’s appeal and I shall deal with them first in turn.
As to issue
(b), the judge having quoted the requirements for a notice set out in the 1967
Act in Schedule 3 Part II, para 6(1)(d)(ii), continued as follows (at p
3 et seq):
Mr Maurice
— counsel for
the respondents —
says that
whether or not the applicant was residing in the cottage for any length of
time, the fact is that it was her residence. There was a room set aside for her
flower decorations. She tended the garden at times. She paid the mortgage. Her
children lived there — both when below school-leaving age and after they left
school. She kept furniture in a shed. This was a residence available to her and
should have been disclosed.
Mr Edmunds for
the applicant says that a residence means somewhere where you reside. If you do
not reside there, it is not required to be disclosed. The particulars to be
disclosed refer to a main residence and an ‘other residence’. The ‘other
residence’ need not be disclosed unless it is an alternative residence.
This is a
difficult question, but in my view Mr Maurice’s contention is the correct one.
This was a residence available to live in, even if she made only occasional
visits, and it was required to be disclosed by the Act.
In the
schedule to her notice of February 18 1988, Mrs Dymond had specifically stated
that since October 4 1984 she had occupied the house as her only residence and
had had no other residence. On her behalf, Mr Reynolds has submitted that at no
time during the period from October 4 1984 to the date of the notice had
Hillsborough Cottage been one of her ‘residences’ in the relevant sense and
that accordingly she had completed the schedule to her notice entirely
accurately. As he rightly pointed out, this submission involves consideration
of two questions: (1) what is the meaning of the word ‘residence’ as used in
para 6(1)(d)(ii) of Part II of Schedule 3 to the 1967 Act; and (2)
whether, on the evidence, Hillsborough Cottage at any time during the period
from October 4 1984 to February 18 1988 was a ‘residence’ within that meaning.
For brevity I will henceforth refer to that para 6 simply as ‘para 6’.
The wording of
that paragraph itself shows that a dwelling does not have to be a ‘main’
residence to qualify as an ‘other residence’ within its meaning. On the other
hand, I think that Mr Reynolds is right in submitting that the mere ownership
of another dwelling which is capable of being used for residential purposes
will not by itself necessarily mean that the owner also has an ‘other
residence’ within the meaning of the paragraph. He submitted that the owner of
a house cannot be said to have had an ‘other residence’ within that meaning,
during a stated period, unless for significant times during that period he
occupied the other dwelling as his residence.
For present
purposes I am prepared to assume in favour of Mrs Dymond that it is not enough
that the other house in question has been owned by the owner and has been
available for his occupation, but that there must also have been a degree of
actual occupation if a house is to qualify as a residence. Nevertheless, it
seems to me that in every case it must be a matter of fact and degree whether a
house constitutes some ‘other residence’ within the meaning of para 6.
In this
context I derive helpful guidance from a passage in the judgment of Eveleigh LJ
in the case of Poland v Earl Cadogan [1980] 3 All ER 544, at p
550, where he said:
I am of the
opinion that a person may occupy premises as his residence, even though he is
absent for a very long period. It may well be, however, that a long absence
will necessitate the acquisition of another residence which will prevent the
tenant from claiming that the premises were his ‘only or main residence’, which
is the requirement of section 1(2) of the Act. It seems to me that, if a person
takes the tenancy of a house and furnishes it and keeps it ready for his own
habitation ‘whenever he pleases to go into it’, he is, as Lush J said, an
occupier though he may not reside in it one day in a year, and I would further
say that he occupies it as a residence. Moreover, I would say that he occupies
it as his residence provided that it is understood that the expression ‘his
residence’ is not used in a context which implies his main residence. It means
he keeps it for himself to live in. If, however, he sublets the property, he
ceases to occupy it as his residence because, as Moore LJ explained, the
occupation is in the subtenant. It may not be inaccurate, however, still to
refer to the premises as his residence. That in isolation would be a
permissible description of the property, but it does not mean that he is in
occupation.
In the present
case the evidence showed that there were from time to time lettings of parts of
Hillsborough Cottage up to September 1987. Though Mrs Dymond’s solicitors’
letter of June 10 1988 had referred to lettings, the evidence did not actually
establish, so far as I am aware, any lettings after September 1987. On the
other hand, the evidence and findings of the judge did establish a number of
other matters, which showed that this was not merely a case of Mrs Dymond
owning the cottage and having it available for her use. During the relevant
period, from October 4 1984 to February 18 1988, it was furnished and, so far
as it was not let, was actually used by her from time to time. She sometimes
spent nights there and, according to the judge’s findings, spent still more
time there after October 1987. Her children were living there from time to time
both before and after they left school; she kept furniture in a shed; she did
gardening work there from time to time and there was a room set aside for her
flower decoration. In my judgment, on these findings it was fully open to the
judge, as a matter of fact and degree, to find that the cottage constituted an
‘other residence’ of hers within the meaning of para 6(1)(d)(ii), and I
think he was right so to hold.
In these
circumstances, subject to the point raised by issue (c), to which I shall
shortly turn, in my opinion the judge was right to hold that the notice of
February 18 1988 failed to contain the particulars required by para 6(1)(d)(ii)
because it did not mention that Mrs Dymond had an ‘other residence’ and,
subject to that point, was invalid.
I now turn to
issue (c). As to that issue, Mrs Dymond’s case was, and is, that her failure to
mention Hillsborough Cottage in her notice was an ‘inaccuracy in the
particulars required’ by para 6, within the
The judge
dealt with this matter as follows (at pp 4 and 5 of his judgment). After
referring to para 6(3), he continued:
A mere
inaccuracy in the notice can be corrected as a matter of right. I have been
referred to the case of Cresswell v The Duke of Westminster
(1985) 275 EG 461*, a decision of the Court of Appeal. I think it necessary
before deciding whether this was a mere inaccuracy or whether it goes further
to say something about the evidence I have heard.
I am bound to
say that I found the evidence of the applicant totally unsatisfactory and in
some respects I did not believe her. If she thought an answer might be wrong or
would not help her case she would say she could not remember, and on any
material facts I tended to disbelieve her.
She called Mr
Wilson, who owns a large manor house and says he is an antiques dealer. It
appears he and she sleep together two nights a week but not on other nights.
According to her she spends her nights at the flat. I cannot avoid saying that
I found Mr Wilson’s evidence unsatisfactory.
There is some
objective evidence to support the applicant’s case — there are electricity and
telephone bills to show she was living at the flat at various periods.
I think the
position is this on the evidence. Up to the time of the first notice, Mrs
Dymond was treating the flat as her main residence although she had the Cottage
as another residence available to her from time to time.
She did not
include it in the notice as she wished to avoid mentioning it if she could do
so. It was not disclosed on the notice. This is a case where the notice clearly
did not, on a fair view, relate to the true facts and it is therefore invalid.
*Editor’s
note: Also reported at [1985] 2 EGLR 151.
The only
authority to which we have been referred in this context is the decision in Cresswell
v Duke of Westminster which was mentioned by the learned judge. In that
case a bold argument was advanced on behalf of the tenant to the effect that
anything that was incorrect in the notice, whether it was due to fraud,
misrepresentation or negligence, was all just an ‘inaccuracy’ in the relevant
sense, which entitled the tenant to avail himself of para 6(3). The Court of
Appeal unhesitatingly rejected that submission. Lord Donaldson MR said at p 152
of [1985] 2 EGLR 151 that he was not prepared to accept that for one moment. On
the particular facts of that case, however, he went on to say that there was no
question of fraud, bad faith or anything of that sort. Against that background,
he observed:
In the end I
suspect that the court has to ask itself: ‘Looking at the facts as they were
and what was stated in the notice, can this fairly be said to be an inaccuracy,
or is it simply a notice which does not on a fair view relate to the
facts?’ Where we draw the line I do not
know, and I doubt whether it is in anybody’s interests that I should attempt to
draw that line.
The drawing of
the line may present particularly difficult problems in a case such as Cresswell,
where there is no question of fraud, bad faith or anything of that sort at all.
In the present case, however, at least on the respondents’ submissions, and on
the judge’s findings, we have a rather different situation. The judge found as
a fact that the notice was ‘supported by concealment or misrepresentation of
material facts’. In making this finding he plainly had in mind the second limb
of section 20(5) of the 1967 Act (para (b)), which I have read. If that
finding of fact was justified, I think it clear that the omission to refer to
Hillsborough Cottage in the notice cannot properly be described as an
‘inaccuracy’ within the meaning of para 6(3). The purpose of the legislature in
requiring a tenant to supply the information set out in para 6(1) is plainly to
assist the landlord in deciding what course to adopt in response to the
tenant’s notice. If an omission by the tenant in his notice is deliberately
calculated to mislead the landlord, in my judgment it cannot qualify as an
‘inaccuracy’ for the purpose of para 6(3).
In these
circumstances, Mr Reynolds naturally sought — and he did so strenuously and
skilfully — to attack the judge’s finding of concealment or misrepresentation
of material facts. He pointed out that the allegation of deliberate
misrepresentation was raised for the first time at the trial. He submitted that
there was no sufficient evidence to support the judge’s finding in this
context.
Though it does
appear that this allegation was raised for the first time at the trial, it also
appears that there was no application by counsel then appearing for Mrs Dymond
for an adjournment and no lack of a proper opportunity for her to deal with the
allegation.
In the context
of this allegation, the form of her pleadings seems to me to be very relevant.
In her originating application, at para 6, she had stated that she had been
occupying the house as her sole residence. In her amended originating
application she had stated in para 6 that she had been occupying the house ‘as
her sole or main residence’. When asked for further and better particulars of
that paragraph, she gave particulars in the form which I have read. I am bound
to say that the particulars given seem to me to have been, at least on the face
of them, extremely disingenuous. Though they referred in terms to ‘occasional
nights’ spent by her at the home of her parents in Bideford, with friends in
Plymouth, with friends in St Albans and with friends in Monkleigh, no mention
was made of any nights spent at Hillsborough Cottage; indeed, the particulars
contained no mention of the cottage at all.
The judge’s
notes of the evidence record that at the end of Mrs Dymond’s cross-examination
she was asked about the omission in her pleadings of any reference to the cottage.
Mr Reynolds, on the basis of rather fuller notes of her cross-examination taken
by counsel who then appeared for her at the trial, has told us that, in fact,
her further and better particulars were put to her and she made an answer to
the effect that, when she gave the necessary instructions for those
particulars, she did not remember spending nights at the cottage, and it did
not seem important to her. The judge, having had the great advantage of hearing
and seeing her give evidence, unfortunately formed the conclusion that her
evidence was totally unsatisfactory and that in some respects he did not
believe her. I have already quoted the passage from his judgment in which he
said that if she thought an answer might be wrong, or that it would not help
her case, she would say that she could not remember. He formed the view (stated
at p 5 of his judgment) that she did not include any reference to the cottage
in the notice because she wished to avoid mentioning it if she could do so.
In my
judgment, there was ample material to justify his finding that her notice was
supported by concealment or misrepresentation of the material facts. Though Mr
Reynolds rightly pointed out that her solicitors’ letter of June 10 1988 had
mentioned her ownership of the house to the respondents’ solicitors, this did
not, in my opinion, negative the concealment or misrepresentation, because it
did not reveal that at times during the relevant period Hillsborough Cottage
had not been let, but had been used and slept in by Mrs Dymond.
From what I
said earlier, it follows that, in my opinion, the judge was right to reject the
argument that the omission of any mention of Hillsborough Cottage in the notice
constituted an ‘inaccuracy’ within the meaning of para 6(3) and correspondingly
was right to decide issue (c) against Mrs Dymond.
As to issue
(d), the judge simply said:
This is a
further application by the respondents under section 20(5) and (6) of the Act
that no further application should be allowed for a period of five years. I note
that the application for costs on an indemnity basis is not pursued. Mr Edmunds
said that this application was not an attempt to cheat the Trustees of the
Charity out of their property. I think this is a case where the applicant and
her family sought to take advantage of the Act in a way which may be perfectly
legal, but which was backed up by the minimal possible evidence. I order that
any further notice given by the Applicant of her desire to have the freehold or
an extended lease of the premises shall be void if given in the next five
years.
In my view, Mr
Reynolds rightly and inevitably conceded that, unless this court were prepared
to upset the judge’s finding of concealment or misrepresentation of material
facts, the judge’s conclusion in regard to issue (d) must follow his conclusion
in regard to issue (c); it could not be upset by this court.
For these
reasons, in my judgment, having regard to my views on issues (b), (c) and (d)
this appeal must fail. After we had intimated to Mr Monty, the respondents’
counsel, that this was our view, we gave him the opportunity to address
argument on the respondents’ notice if he so desired, but for obvious reasons
he did not seek to avail himself of this opportunity.
The judge’s
conclusions on issues (b), (c) and (d) were in the end all conclusions on
matters of fact. Mr Reynolds, in an admirable argument, has said everything
that could be said in support of this appeal but, for the reasons which I have
given, in my opinion the judge’s findings of fact on these three issues cannot
be disturbed and I would accordingly dismiss the appeal.
Agreeing, RALPH
GIBSON LJ said: I have very little to add. The result for the applicant is
disastrous, but that result is, in my judgment, fully in accordance with the
intention of Parliament as set out in the Act of 1967. What I have to add is on
issue (b). Mr Reynolds, among other submissions, contended that any occupation
by the applicant of the cottage could not be held to have been occupation of an
‘other residence’ within the meaning of para 6(1)(d)(ii) of Schedule 3
unless there was occupation of it for
‘occupying it as his only or main residence’ and relied upon the contention
that the applicant’s occupation of the cottage would not have satisfied the
test of ‘occupies the dwelling-house as his residence’ under section 2 of the
Rent Act 1977. Finally, he submitted that the learned judge concentrated on the
availability to the applicant of the cottage as contrasted with its actual or
intended use.
During the
course of argument Slade LJ drew attention to the case of Poland v Earl
Cadogan, to which he has referred in his judgment. That case was concerned
with the primary question whether the tenant had proved the necessary period of
occupation ‘as his only or main residence’ under section 1 of the Act. The
tenant in that case had gone abroad from 1975 to January 1977, leaving the
house to be sublet by agents. During the absence of the applicant and his wife,
possession was taken by mortgagees. The decision of the county court judge was
that the tenant had been in occupation as his only or main residence during
that time. His decision was reversed by this court on the ground that, although
absence — even prolonged absence — from the house did not by itself bring
qualifying occupation to an end, it was necessary, if qualifying occupation was
to continue during a period when the tenant was not actually living in the
house, for the tenant to have an intention to reside there in the sense of
keeping it ready for habitation by himself whenever he was pleased to go into
it. The reasoning of their lordships supports, in my judgment, the proposition
that if a resident tenant of a house, the subject-matter of an application for
the tenant to acquire the freehold under the Act, has, during the relevant
period, a second house which is furnished and available for occupation as his
residence which the tenant keeps ready for habitation by himself whenever he is
pleased to go into it, and which, from time to time, the tenant uses for
habitation by himself, that tenant has an ‘other residence’ within the meaning
of para 6.
It is not
necessary, on the facts of this case, to decide whether the second house would
qualify as an ‘other residence’ if it had been kept available only, without the
tenant’s going into it at any time during the relevant period. I incline to the
view that it could so qualify. I would add, however, that if in such a case an
applicant omitted reference to it in his notice it is probable, to say the
least, that the omission would be held to be an inaccuracy within para 6(3) on
the ground that the omission would have been unlikely to be calculated or
intended to mislead the landlord.
I do not,
however, accept that if an applicant has another residence within the test that
I have set out, it does not qualify as an ‘other residence’ for the purposes of
para 6(1)(d) unless the applicant had occupied it for periods of time
which, according to Mr Reynolds’ submission, could be described as
‘significant’.
It is clear
that an ‘other residence’ which is required to be mentioned in the notice is
not the ‘only or main residence’ of the applicant, which must be the house the
subject-matter of the application. The legislative purpose of the requirement
must be, as Slade LJ has already said, to cause the applicant who has more than
one residence to inform the landlord of the other residence — other, that is,
than the house the subject-matter of the application — so that if the landlord
wishes to do so, the landlord may investigate the facts so as to be able to
test, and it may be to demonstrate, the inaccuracy of the assertion that the
house the subject-matter of the application has indeed been occupied as the
main residence of the applicant during the relevant period. The obligation to
give particulars of the other residence is not qualified in the statute by
reference to any necessary significance, or frequency of habitation of that
other residence.
In my
judgment, this case was a good example of circumstances in which the landlords
had real need to be told of the applicant’s other residence in the cottage, so
that they could investigate which was the applicant’s main residence.
I would
therefore uphold the judge’s finding on this point and on the other matters for
the reasons which Slade LJ has given.
The appeal
was dismissed with costs.
