Leasehold Reform Act 1967 — Meaning of ‘house’ — Whether building can reasonably be called a house, notwithstanding that it has two separate front and back doors, and two floors occupied by separate families as their residences
respondent, Mrs Malpas, satisfied all the requirements of the Leasehold Reform
Act 1967 for acquiring the freehold of 22-22a Clarendon Road, Colliers Wood,
London SW19 (‘the premises’), provided the building was a house within the
meaning of section 2(1) of the Act — The premises were constructed as part of a
terrace in 1905 as a pair of adjoining maisonettes —- Alternatively, they were
converted in the early 1920s from a single residence into a pair of maisonettes
— The front of the premises contains two front doors, one for no 22 and the
other for no 22a, which are slightly recessed with a sloping slate-covered
porch running over the two of them — At the rear of the premises the appearance
is of a single Edwardian house except that there are two back doors, one
serving the ground floor and the other serving the first floor — Unlike the
position in Sharpe v Duke Street Securities NV, the respondent holds the unexpired
residue of the long lease of the premises as a whole and occupies the upper
flat or maisonette, no 22a; the ground-floor flat, no 22, had been sublet by
her predecessors for the unexpired residue of the term less one day and was
occupied by a separate family — The appellant landlords, St Ermin’s Property Co
Ltd, appealed the decision of Judge Willis that the respondent was entitled to
acquire the freehold of the premises
be called a building divided horizontally into two flats or maisonettes, it was
quite plain that it can also reasonably be called a house, notwithstanding that
it had two front doors and two back doors — The concept of a house divided into
maisonettes is one which the Act recognises — Further, the parcels clause in
the lease described the premises as a messuage or dwelling-house
The following
cases are referred to in this report.
Lake v Bennett [1970] 1 QB 663; (1969) 213 EG 633
Sharpe v Duke Street Securities NV (1987) 55 P&CR 331; [1987] 2
EGLR 106; 283 EG 1558; 19 HLR 506, CA
This was an
appeal by St Ermin’s Property Co Ltd from a decision of Judge Willis in the
Croydon County Court (February 22 1991) whereby he held that the respondent,
Mrs Malpas, was entitled to acquire the freehold of 22-22a Clarendon Road,
Colliers Wood, London SW19.
Christopher
Russell (instructed by Hamlin Slowe) appeared for the appellants; Rabinder
Singh (instructed by James O’Neill, of Morden) appeared for the respondent.
Giving
judgment, DILLON LJ said: This is an appeal by landlords, St Ermin’s
Property Co Ltd, against a decision of Judge Willis in the Croydon County Court
given on February 22 1991, whereby he held that the applicant in the
proceedings, the respondent to the appeal, Mrs Malpas, was entitled to acquire
the freehold of a property called 22-22a Clarendon Road, Colliers Wood, London
SW19, under the Leasehold Reform Act 1967.
The issue
raised by the appeal lies in a very small compass. It is whether the building,
22-22a Clarendon Road, is reasonably called a ‘house’. Section 1 of the 1967
Act provides that Part I is to have the effect of conferring:
on a tenant
of a leasehold house, occupying the house as his residence, a right to acquire
. . . the freehold or an extended lease of the house and premises. . . .
The meaning of
‘house’ is set out in section 2. Section 2(1) provides that for the purposes of
the Act:
‘house’
includes 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, or is divided horizontally
into flats or maisonettes; . . .
The subsection
goes on to provide that:
(a) where a building is divided horizontally, the
flats or other units into which it is so divided are not separate ‘houses’,
though the building as a whole may be; and
(b) where a building is divided vertically the
building as a whole is not a ‘house’ though any of the units into which it is
divided may be.
The intention
seems to have been to ensure that the acquisition of the freehold of a house
should not result in there being flying freeholds of parts of buildings above
freeholds belonging to someone else. It is expressly provided in section 2(2)
that:
References .
. . to a house do not apply to a house which is not structurally detached and
of which a material part lies above or below a part of the structure not
comprised in the house.
It is not in
doubt that the respondent, Mrs Malpas, satisfies all the requirements of the
Act for acquiring the freehold if the building is a house and the only question
is whether it is a house reasonably so called.
What the
building is, we can see from the colour photographs with which we have been
helpfully supplied. Nos 22 and 22a were constructed as part of a terrace in
1905. It seems that they were originally constructed as a pair of maisonettes
adjoining nos 20 and 20a similarly so constructed as a pair of maisonettes.
There are many others in the same road constructed in the same way. It seems
probable that they were originally constructed as maisonettes. The only
alternative is that they were converted in the early 1920s from a single
residence into a pair of maisonettes. But if that is so, it would be odd that
so many others were so converted at the same time.
I take the
photograph of the front view of nos 22 and 22a. I see what looks like an
ordinary Edwardian house with a ground floor and a first floor and a roof
above, except for one matter, which is that there are two front doors next to
each other, one for no 22 and the other for no 22a, which are slightly recessed
with a sloping slate-covered porch running over the two of them. Next door, nos
20 and 20a appear to be the mirror image. The front doors in nos 22-22a are to
the right of the facade of the building as you look at it. Immediately next to
them are the front doors of nos 20 and 20a under a similar sloping porch, the
ends of the two porches being supported apparently by the same pillar. At the
back again the appearance is of a single Edwardian house except that there are
the two back doors, one serving the
to be shared by each of the maisonettes having a separate part. Nothing turns
on that. Down the side to the left of nos 22-22a there is a side passage. Nos
22-22a are in fact of the same sort of construction as was considered by Fox LJ
in Sharpe v Duke Street Securities NV (1987) 55 P&CR 331*.
*Editor’s
note: Also reported at [1987] 2 EGLR 106.
But the
crucial factor in that case, which is not present in the present case, is that
both maisonettes were occupied by one family as their residence and a
connecting door had been opened in the partition wall which, when the
maisonettes were separately occupied, divided the entrance hall for the upper
maisonette from the entrance hall for the lower maisonette. In the Sharpe
case it was held that what was occupied in that case by the one family as their
residence was reasonably to be called a house and therefore the tenants were
entitled to acquire the freehold. In the present case the respondent, Mrs
Malpas, has the unexpired residue of the long lease of the building as a whole,
with its front and back gardens, and occupies the upper flat or maisonette, no
22a. The ground-floor flat, no 22, has been sublet by her predecessors for the
unexpired residue of the term of the whole less a single day and is occupied by
a separate family, the subtenants, as their residence. There is not in this
case the factor, which there was in some of the authorities to which we have
been referred, of mixed commercial and residential use. The use of the upper
and lower maisonettes has always been residential.
The question
then comes down to a very short one. Can the building reasonably be called a
house notwithstanding that it has the two separate front and back doors and the
two floors are occupied by separate families as their residences? It is well established (see, for instance,
the judgment of Fox LJ in the Sharpe case and the judgment of Salmon LJ
and the other members of this court in Lake v Bennett [1970] 1 QB
663) that if the building can reasonably be called a house, the fact that it
might also reasonably be called something else is not relevant. This could
reasonably be called a building divided horizontally into two flats or
maisonettes, but to my mind it is quite plain, looking at the photographs, that
it can also reasonably be called a house notwithstanding that it has two front
doors and two back doors. I do not regard the fact that there are the two front
doors as meaning that this is not a house and some longer circumlocution has to
be used to describe it. The concept of a house divided into maisonettes is, of
course, one which the Act recognises and which is familiar to anyone who sees
what has happened to Victorian houses in central London built in those spacious
days for occupation by a single family but now subdivided horizontally into
maisonettes sharing a single entrance.
I agree,
therefore, with the conclusion which the judge reached.
There is the
further factor on which the judge also relied: that in the 1905 lease the
property demised is demised as a:
piece or
parcel of land at Merton in the County of Surrey situate on the north side of a
road called Devonshire Road West and having a frontage thereto [and the various
dimensions are given]. Together with the messuage or dwelling-house and
premises erected thereon and known as [and then the description Number 1
Beresford Villas is given].
It seems,
therefore, that at that time the conveyancer who was disposing by long lease of
these various buildings was content to describe each as a messuage or
dwelling-house and saw nothing odd about that. That is a factor which certainly
does not assist the landlords in asserting that the building is not a house.
For these
reasons, which are substantially those of the judge in a careful judgment, I
would dismiss this appeal.
STEYN LJ agreed and did not add anything.
Appeal
dismissed with costs.
