Protection from Eviction Act 1977, section 1(3) — Appeal by case stated from a decision of Crown Court dismissing appeal from conviction by magistrates’ court — Appellant was a director of a company which owned premises in which the acts complained of occurred — The complaint arose from conversion work carried out by one of the appellant’s companies on the floor above a room occupied by an elderly statutory tenant — A new bathroom was being installed immediately above her room, necessitating a strengthening of the floor above by the insertion of additional joists — The tenant was told that there was a risk that part of the ceiling in her room would be detached and she was offered temporary accommodation in a hotel, but did not like it — She was told that the work would be carried out and that, if necessary, an injunction would be obtained against her — The ceiling in fact fell and the room was rendered uninhabitable — The tenant left the room permanently — The charge against the appellant was brought under section 1(3)(a) as being done with intent to cause the residential occupier ‘to give up the occupation of the premises’, ie to get the statutory tenant out permanently — But ‘occupation’ for the purpose of the Protection from Eviction Act had the same meaning as in the Rent Act — The intention of the appellant was not to bring down the ceiling in order to cause the tenant to leave permanently, but to persuade her to leave for a limited period to enable work to be done and thereafter to allow her to return, as was her right under the Rent Act — This was not an intent to cause her ‘to give up her occupation of the premises’ — The fact that it could constitute an intent under section 1(3)(b) (to cause her to refrain from exercising her right to live in the premises) was not relevant to the charge as framed under section 1(3)(a) — Consequently the appeal succeeded — Per Glidewell LJ, a local authority uncertain whether to frame a charge under para (a) or (b) could frame it as one charge with alternative intents, because section 1(3) creates one offence only, not two, namely, to interfere with the peace or comfort of the residential occupier.
The following cases are referred to in this report.
Brown v Brash [1948] 2 KB 247; [1948] 1 All ER 922, CA
R v Yuthiwattana [1984] Crim LR 562; (1984) 80 Cr App R 55, CA
Skinner v Geary [1931] 2 KB 546, CA
This was an appeal, by case stated by the Crown Court at Knightsbridge, by the appellant, Harry Peter Schon, who had appealed unsuccessfully to the Crown Court from his conviction by the metropolitan stipendiary magistrate at Wells Street court of an offence under section 1(3) of the Protection from Eviction Act 1977. The offence charged related to 2 Crossfield Road, London NW3, and to acts alleged to interfere with the peace and comfort of Frieda Deadman, a statutory tenant of a room at that address.
R Slowe (instructed by Fremont & Co) appeared on behalf of the appellant; Adrian Taylor (instructed by F Nickson, chief executive and solicitor to the London Borough of Camden) represented the respondents.
|page:38|
Giving judgment, GLIDEWELL LJ said: This is an appeal by way of case stated by the Crown Court at Knightsbridge. It relates to a conviction of the appellant, Mr Schon, by the metropolitan stipendiary magistrate at Wells Street Magistrates’ Court on September 4 1984 on a charge that between July 14 and July 20 1983 Mr Schon, ‘at 2 Crossfield Road, London NW3, unlawfully and with intent to cause Frieda Deadman, the residential occupier of certain premises, namely, the rear room on the first floor of 2 Crossfield Road, NW3, to give up occupation of those premises, did certain acts calculated to interfere with the peace and comfort of the said Frieda Deadman.’ The information contained details of those acts. This was contrary to section 1(3) of the Protection from Eviction Act 1977.
Following his conviction, Mr Schon appealed to the Crown Court, who heard the appeal in May 1985, eventually giving judgment on September 12 1985.
The facts found by the Crown Court are, as one would expect, carefully set out. Initially, I can summarise them. The appellant was a director of a company which purchased the premises 2 Crossfield Road, London NW3. Already in those premises were a number of ladies who occupied rooms with the benefit of statutory tenancies. They included Miss Deadman, who occupied a room on the first floor, and a Miss Gal, who occupied another room on the same floor. Miss Deadman was in her seventies and Miss Gal was in her eighties. The company obtained planning permission to convert the remaining floors in the building into separate flats. This involved installing a new bathroom on the floor immediately above the rooms occupied by Miss Deadman and Miss Gal. That, in turn, involved strengthening the floor underneath the intended new flat by inserting additional joists. That was likely to interfere, to some extent, however it was done, with the quiet enjoyment of the ladies living on the floor below.
There were two ways in which access could be gained. It could be gained from above by pulling up the floorboards or it could be gained from below if entry could be made to the rooms occupied by Miss Deadman and Miss Gal. The case found that the appellant preferred to carry out that work from below, namely, from Miss Deadman’s room.
So far as Miss Gal was concerned (no doubt by arrangement with the appellant) she went away on holiday. While she was on holiday, the work was done to the strengthening of the floor and ceiling above her flat by entering into her flat. So far as Miss Deadman was concerned, the appellant told her that work would be carried out to the floor immediately above hers and that this carried the risk that part of the ceiling of her room would be detached. She was offered alternative accommodation in a hotel owned by one of the appellant’s companies while the work was carried out. She said that she would consider going there. The builder then told Miss Deadman that the work was to be carried out in her room and that it involved removal of part of her ceiling. She spoke to the appellant about this, who said that ‘she must be co-operative’. She went to see the alternative accommodation in the hotel. She was not happy to go there. She telephoned the appellant and told him that she was not minded to leave her flat. He informed her that the work would be carried out from above and that, if necessary, he would obtain an injunction against her.
The case then continued:
We concluded that although the appellant might have been happy for Miss Deadman to leave her room permanently, he did not intend that the acts alleged should cause her to give up occupation permanently. The appellant did, however, intend Miss Deadman to leave her room for so long as was necessary to carry out the intended works, which could have been for a period of up to two weeks. Having regard to his conduct relating to Miss Gal, we were satisfied that there would have been no difficulty in Miss Deadman returning to her room after the works had been carried out.
The words used by the appellant caused anxiety and distress to Miss Deadman and were used with the intent to cause her to give up occupation for the time required to install joists in the floor above her room, namely, about two weeks.
The ceiling of Miss Deadman’s room fell in in consequence of the work of installing the joists. We do not find that Mr Schon caused her ceiling to be brought down with intent to cause her to give up the occupation of the premises.
There was no truth in the allegation made on behalf of the appellant that Miss Deadman entered into an agreement with the appellant’s builders that they should deliberately bring down the ceiling in order that Miss Deadman might be rehoused by the local authority. In consequence of those works Miss Deadman’s room was rendered uninhabitable.
The contentions of the appellant were then set out in the case, which were that:
(a) The words ‘give up’ in section 1(3)(a) of the Protection from Eviction Act 1977 in their ordinary meaning and in the context of the section connote permanency.
(b) That the word ‘occupation’ in the same subsection should be given the same meaning as in the Rent Acts from which it is derived, that is to say, that it is something which is only given up when there is an absence of both animus revertendi and corpus possessionis.
(c) The Appellant only intended that Miss Deadman should herself leave the room for a short period; the provisions of the subsection were not satisfied.
(d) If there was any offence it might more properly have been laid under section 1(3)(b) of the Protection from Eviction Act 1977 as being an intent to cause a residential occupier to refrain from exercising one of her rights in respect of the premises, that is to say, her right to exclusive occupation for the said short period.
The Crown Court concluded:
We were of the opinion that (a) The words ‘give up’ do not connote permanency. (b) The word ‘occupation’ does not fall to be interpreted in the same way as under the Rent Acts and that accordingly the decision in Brown v Brash and Ambrose does not assist. (c) That whether or not the decision of the Court of Appeal in Yuthiwattana is binding upon us we find no need for there to be any intention for occupation to be given up permanently for an offence to be committed. (d) On the facts as we have found them an offence had been committed contrary to section 1(3)(a) of the Protection from Eviction Act 1977. We accordingly dismiss the appeal.
Before I go back to the case, I must refer to the Act itself. Section 1 of the Protection from Eviction Act 1977 reads as follows:
(1) In this section ‘residential occupier’, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.
(2) If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.
(3) If any person with intent to cause the residential occupier of any premises —
(a) to give up the occupation of the premises or any part thereof; or
(b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof;
does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence.
Subsection (4) provides for the penalty.
Before continuing, I want to make this clear. In my view, subsection (3) of the Act does not constitute two different offences. The act constituting the offence is an act calculated to interfere with the peace or comfort of the residential occupier. That act may be done with one of two intentions: either the intention to cause the residential occupier to give up the occupation of the premises or the intention to cause the residential occupier to refrain from exercising any right and so on. The act is the same act. In my judgment, it is wrong to suggest (as has been suggested) that the subsection provides for two different offences.
Mr Slowe, for Mr Schon, accepts that it is proved that what Mr Schon did was an act calculated to interfere with the peace or comfort of Miss Deadman, who was a residential occupier. Mr Slowe also accepts that what Mr Schon did was done with the intent that Miss Deadman should refrain from exercising her right to continue to live in her room for the two weeks thought to be required for the works, that is to say, to occupy the room in person. The question we have to decide (and which the Crown Court had to decide) is: does this amount to an intent to cause Miss Deadman to give up occupation of the premises?
The case was apparently presented by the prosecution in the magistrates’ court on the basis not that Mr Schon was merely trying to get Miss Deadman out for two weeks but that he brought the ceiling down deliberately in order to cause Miss Deadman to leave the premises permanently. Of course, if that had been made out, it would have shown an intention, without any doubt, to cause her to give up occupation of the premises. There would have been no argument about it. That essentially was the case for the prosecution. However, it was not proved. The case stated makes it clear that it was not|page:39| proved. It is also clear that the counter-allegation by Mr Schon that Miss Deadman had, in effect, conspired with the builder to pull down her ceiling permanently so that she would not be able to go back to her room and would be rehoused by the local authority was also not proved.
The case does not tell us whether she has, in fact, been rehoused by the local authority, although we apprehend that it means that she has left the room permanently.
The definition of ‘residential occupier’ in section 1(1) of the Act, which I have already read out, is to be contrasted with the provision in section 2(1)(a) of the Rent Act 1977 which reads:
Subject to this Part of this Act — (a) after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it.
The concept of occupation as a residence is to be found in the provisions of both Acts. That is not surprising, because the provisions of the Protection from Eviction Act were first enacted as Part III of the Rent Act 1965, Parts I and II of which were contained with other matters relating to rent control. Admittedly, they did not contain the provisions about statutory tenancies which are now to be found in section 2 of the Rent Act 1977.
However, as Mr Slowe points out, that is a strong argument to the effect that in the Protection from Eviction Act, the phrase ‘occupying the premises as a residence’ has the same meaning as in the 1977 Rent Act. If that be right, there is a long line of authority for the proposition that, under the Rent Acts, a person may occupy premises as his residence although he is physically absent from the premises, provided that, to put it broadly, the absence is not, and is not intended to be, permanent and either his spouse or some other member of his family is physically in occupation or, at the very least, his furniture and belongings remain in the premises. Thus, to give an easy example, if a statutory tenant of the premises goes away on holiday for a month and leaves his premises empty, but with all his furniture and belongings there, he continues to be the residential occupier. He continues to occupy the premises as his residence. If he goes on a business trip for a long time, the same is true. It becomes a question of fact for the court, in the particular circumstances, as to when or what particular events constitute a cessation of occupation as a resident.
Those authorities include the well-known decisions of the Court of Appeal in Skinner v Geary [1931] 2 KB 546 and the case referred to in the case stated, Brown v Brash and Ambrose [1948] 2 KB 247. Mr Taylor, for the respondent borough council, argues that the word ‘occupation’ in section 1(3) of the Protection from Eviction Act does not mean the same as ‘occupation of the premises as a residence’. However, with the greatest respect to him, I fail to follow the logic of that. Where the word ‘occupation’ and the word ‘occupier’ are used in one section of an Act, they must, in my understanding, unless there is some very clear indication to the contrary, be given the same meaning. If the tenant of a flat has it decorated or has a new bathroom installed and moves out to stay with a friend for a few weeks while the work is being done, there is no doubt, in my mind, that she is still occupying the flat as her residence while the work is done. In my view, it can make no difference that she moves out not to enable work to be done to her own flat but to make it more convenient for work to be done on an adjoining flat or one immediately above, the work being done by the landlord. The same applies to Miss Gal when she went on holiday in order to allow the landlord or the builder to enter her flat, Miss Gal continued to occupy her flat as her residence. The fact that Miss Deadman was being pushed to leave, which she undoubtedly was, does not alter the situation. If she had left, forgetting the question of the ceiling coming down, for a period of two weeks and the work had been done, she would, in my judgment, have continued to occupy her room as her residence and she would have had a right under the Rent Acts to return to it at the end of the period that the work would have caused. Thus, in my view, an intention to persuade her to leave for a limited period of time in order to enable work to be done and thereafter to allow her to return was not an intent to cause her to give up the occupation of the premises.
Notwithstanding that, it would be an intent which fell within the second intention within section 1(3) because it would be an intention to cause her to refrain from exercising her right to live in the premises and to be physically present in the premises.
This charge was expressly worded as being based upon the intent to cause her to give up the occupation of the premises. The reason why it was is that the prosecution were not basing themselves upon the facts found in this case. They were basing themselves upon the proposition that the intention was to get her out permanently. It follows, therefore, that the charge is not established, in my view, by the facts proved set out in the case stated and the appeal must succeed.
However, lest it should be thought that this is going to cause great difficulties for local authorities who have to administer this Act, if they are uncertain whether the facts presented to them show intention (a) or intention (b) of subsection (3), I should say this, although it is not directly germane to the present case. In my view, section 1(3) creates one offence. For myself, I can see no reason why the one offence should not be expressed in one charge with alternative intentions. It is not uncommon to find a count in an indictment with two alternative intentions. No one suggests that that is bad. Even if objection were taken to that, it would be perfectly possible to frame two alternative charges.
The case referred to the decision of the Court of Appeal (Criminal Division) in R v Yuthiwattana (1984) 80 Cr App R 55. In that case, there were two counts in an indictment, one under section 1(2) of the 1977 Act and one under section 1(3). Those counts were based upon different parts of the appellant’s conduct in relation to the occupier of a room in her house. The section 1(2) count, that is to say, the allegation that she had unlawfully deprived the occupier of his occupation of the premises, was based upon the fact that he had been locked out for one night, but had been allowed to return the following afternoon. An appeal against the conviction on that count succeeded. The section 1(3) count alleged a course of conduct which was not merely the locking out, extending over a period of time, but included such things as changing the locks and withdrawing a certain amount of the services. This course of conduct was intended to cause and, in the event, did cause the occupier to leave permanently a little time after the locking-out incident. An appeal in respect of that count failed. However, I emphasise that although the decision was dealing with the section 1(2) matter, it also dealt with section 1(3) although that was a case of causing him to give up occupation permanently. In my view, Yuthiwattana is not relevant to the question that came before us and before the Crown Court in the present case. Certainly, there is nothing in it which is in conflict with my decision in the present case.
The question posed for the opinion of this court is expressed in these terms:
Whether an intent to cause a residential occupier to give up occupation of her flat for the time required (namely, two weeks) to enable the installation of joists between her premises and the floor above can amount to an intention to cause the residential occupier to give up the occupation of her premises within the meaning of section 1(3)(a) of the Protection from Eviction Act 1977.
With the greatest respect to the author of that question, in my view it does not pose the question that we have to answer. Far from posing it, it begs it. I would suggest that the question ought to read something like this: ‘Whether an intent to cause a residential occupier to leave her flat for the time required (namely, two weeks) to enable the installation of joists between her premises and the floor above, but to return at the end of that time’, making it clear what the intention was found to be, and then going on. If the question is so framed, the answer to the question: ‘Can that intent amount to an intention to cause the residential occupier to give up the occupation of her premises?’ should, in my judgment, be answered ‘No.’ I would therefore allow the appeal.
SCHIEMANN J agreed and did not add anything.
The appeal was allowed. The appellant was awarded costs out of central funds at all stages; the respondents were awarded costs out of central funds in Court of Appeal. A certificate that the point was one of general public importance was refused.
