· Occupiers of houseboats and mobile homes can only qualify for Rent Act or Housing Act
protection where these have become part and parcel of land
Tenants of dwelling-houses have enjoyed statutory protection of one sort or another for
nearly a century. However, until now, there has been no direct ruling on the
approach to be adopted when considering whether or not some of the slightly
less usual types of dwelling fall within the ambit of this legislation. This
situation has now been rectified by the Court of Appeal in its recent ruling in
Chelsea Yacht & Boat Co Ltd v Pope [2000] 22 EG 139. Here, it
has been decided that a ‘lease’ of a houseboat was not an assured tenancy under
the Housing Act 1988.
The Rent Act 1977
(regulated tenancies), the Housing Act 1985 (secure tenancies) and the Housing
Act 1988 (assured tenancies) all apply only to tenancies under which a
‘dwelling-house is let as a separate dwelling’. Virtually all aspects of this
definition have been heavily litigated over the years, but the one area in
which direct case law has been scanty is that relating to what may be described
as less permanent places of habitation, such as houseboats and mobile caravans.
Legal opinions on whether or not tenancies of these types of homes are
statutorily protected have had to be based upon judicial rulings in related
areas such as rating and taxation, where the relevant criteria are
significantly different.
The precise issue
in Chelsea was whether or not a tenancy of a houseboat that was moored
upstream from Battersea Bridge gave rise to an assured tenancy under the
Housing Act 1988.
The appellant, the
owner of the boat, was licensed by the Port of London Authority to maintain
mooring pontoons and gangways to accommodate residential craft on the River
Thames. The houseboat was moored to one of these pontoons and was also anchored
to the river bed. The appellant provided services — water, gas, electricity,
telephone and drainage — that were easily connected by plug-in or snap-on
connections.
In 1993 Mr Pope had
taken a letting of the boat from its previous owner in a form based largely
upon an agreement that was appropriate for the letting of a dwelling-house.
This had been extended at six-month intervals until the end of April 1997. At
this point, the appellant, who had, in the meantime, bought the boat, sought
possession for failure to pay rent and other breaches of the agreement.
The question of
whether the agreement was governed by the Housing Act 1988 was raised as a
preliminary issue in these proceedings, and the point was decided in favour of
the tenant by both the district judge and the county court judge. It was from
this ruling that the landlord was now appealing.
In the Court of
Appeal, Tuckey LJ started by emphasising that, in a case such as this, there
were two distinct questions to be addressed. First, in order for there to be a
tenancy, it had to be established that the houseboat had become part of the
land (since a chattel cannot be the subject of a lease). Second, if there was a
tenancy, it had to be shown that the houseboat was a dwelling-house. In the
present dispute, the only question argued before the Court of Appeal was
whether the houseboat had become part of the land.
The correct
approach to the issue of whether or not an item has become part and parcel of
land has only recently been laid down by the House of Lords in Elitestone
Ltd v Morris [1997] 2 EGLR 115, a case involving a chalet bungalow
that was not physically attached to its base. There, the House of Lords made it
clear that this question (as opposed to the question of whether an item is a
chattel or a fixture) is to be decided on an objective, common-sense basis;
neither the subjective intention of the parties nor even annexation are
necessarily crucial. What was decisive in Elitestone was that the
bungalow had been constructed for long-term occupation and could not be
dismantled and re-erected anywhere else.
While it is fair to
say that, in Chelsea, the Court of Appeal, while purporting to apply the
Elitestone test, has, in fact, adopted a more traditional
chattels/fixtures distinction, it is difficult to disagree with the outcome.
Their lordships were quite satisfied that this houseboat could not be regarded
as part of the land. Although at half tide it rested on the river bed, it
floated for a total of approximately 12 hours in each day. The various ways in
which it was attached to the land could be readily undone. For example, despite
its engine having been removed, it could still be moved either to dry dock, for
maintenance, or to another mooring. It was clearly intended to provide a home,
but it was not at all necessary for the boat to become part of the land in
order to achieve this objective.
The case law relied
upon by counsel for Mr Pope (and often cited as providing some degree of
support for the notion that lettings of mobile caravans and houseboats can be
protected under the Rent Act or Housing Act) was not felt to be relevant by the
Court of Appeal. In particular, both Makins v Elson [1977] 1 WLR
221 and R v Rent Officer of Nottingham Registration Area, ex parte
Allen [1985] 2 EGLR 153 were both concerned with the question of whether a
mobile caravan could be regarded as a dwelling-house, rather than with whether
it was part of the land and therefore capable of being the subject of a
tenancy.
There is no doubt
that the more closely analysed approach adopted in Chelsea will help to
clarify the law in this area. By concentrating upon the simple key question of
whether the houseboat was part of the land, the Court of Appeal has
demonstrated that this will often avoid the necessity of examining whether such
places of abode are, in law, dwelling-houses.
