Possession — Premises — Claim by resident landlord under section 12 — Tenant contending that premises forming tenancy comprised separate building — Work in hand to separate premises — Whether one or two premises at time of expiry of notice to quit — Whether landlord resident — Case 9 hardship — Whether premises reasonably required by landlord — Possession order upheld
The original tenancy agreement between the plaintiff landlords and the defendant tenant was headed “furnished letting of flat 198A being part of 198 Nether Street,” London N3. The landlords had purchased the complete building comprised of 198 and 198A Nether Street in 1969, when it was a semi-detached property with an extension already added to it as a granny flat and a garage. All the services were to one building, for which there had been a single rates bill. After the tenancy was granted, there were minimal alterations to seal off the interconnecting doors and the tenant lived there for three years prior to the notice to quit. The financial situation of the landlords then deteriorated and they obtained planning permission to make 198 and 198A into two separate houses.
The judge accepted at first instance that there had been an intention on the plaintiff’s part to separate the title and that work had already commenced on the premises to put the intention into effect. He also held that in order to get the benefit of section 12 of the Rent Act 1977, the landlord had to show there was one building, not only at the time when the tenancy was granted but also at the end of the tenancy. However, he found that separation had not been effected by the expiry of the notice to quit for the purposes of section 12. The landlords had remained resident at all times and therefore it was not a protected tenancy and no statutory tenancy had arisen. On the issue of Case 9, moreover, it was not reasonable to require the landlords to move to Worthing where they owned another house. he made an order that the landlords recover possession. The tenant appealed.
Held The appeal was dismissed.
1. The landlords, to get the benefit of section 12, had to show there was one building not only at the time when the tenancy was granted but also at the end of the tenancy. On the question that the judge had asked himself, whether separation had been completed between 198 and 198A to a sufficient extent by the time the notice to quit expired, the Appeal Court endorsed his findings that the works were not completed by that date apart from the central heating. Also that the resident landlords remained the resident landlords at all times and therefore it was not a protected tenancy and no statutory tenancy had sprung up.
2. The question whether the premises comprised one or two buildings was one of fact for the judge. The leading case was Bardrick v Haycock (1976) 31 P&CR 420 and the judge had this case in mind in reaching his decision. Scarman LJ in Bardrick stated that the answer to the question had to be approached as one of fact, where a judge’s decision could be reversed only if it could be shown that he had misdirected himself in law or that his decision was unsupported by the evidence. In the instant case the judge was right in holding that the work had not yet been completed.
3. The judge also had given full consideration to the question of reasonableness and the matters relevant to a Case 9 situation.
James Simpson (instructed by David D Lewis & Co) appeared for the landlords; and Philip Walter (instructed by S Newman & Co) appeared for the tenant.
