Leasehold Reform Act 1967, section 2(1) — Meaning of ‘house’ for the purposes of right to enfranchisement — Appeal by landlords from decision of county court judge in favour of tenants — Case concerned a building which was constructed as two separate maisonettes or flats, one on the ground floor and one on the first floor — Access to first-floor maisonette was by means of a hall and staircase from ground level, divided from the ground-floor maisonette by a wall — The front doors were side by side in the front porch — Eventually both flats came into the same leasehold ownership (both leases being for 99 years from 1904) and the owner put a door in the downstairs wall and occupied the whole premises consisting of the two maisonettes as his residence — After he had been in occupation for more than three years he gave notice in the prescribed form under the 1967 Act stating his desire to acquire the freehold — Later he died and the present proceedings were brought by his personal representatives and son, the persons entitled to do so under the deceased’s intestacy — They sought a declaration that they were entitled under the provisions of the 1967 Act to acquire the freehold and the county court judge agreed — It was objected on appeal that the judge was in error in holding that the two maisonettes constituted a ‘house’ within the meaning of section 2 of the Act — In particular it was submitted by the landlords that the building was excluded by section 2(1)(b), which provides that ‘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’ — Court of Appeal rejected this submission; section 2(1)(b) is concerned with the vertical division of a building into units, such as the normal division of houses in a terrace — Inside the two maisonettes in this case the division was not vertical but horizontal — In other respects also the building conformed with the provisions of section 2 — Appeal dismissed
The following
case is referred to in this report.
Tandon
v Trustees of Spurgeons Homes [1982] AC 755;
[1982] 2 WLR 735; [1982] 1 All ER 1086; (1982) 44 P&CR 307; [1982] EGD 984;
(1982) 263 EG 349, [1982] 2 EGLR 73, HL
This was an
appeal by the landlords, Duke Street Securities NV, freehold owners of 83 and
84 Trouville Road, Clapham, London SW4, from a decision of Judge Hunter at
Wandsworth County Court, granting an application by the respondents, Helen
Sharpe, Alison Sharpe and David Sharpe (by his next friend, John Wilberforce Bridge),
for a declaration of entitlement to acquire the freehold of nos 83 and 84 under
the Leasehold Reform Act 1967.
Leslie Joseph
QC and Nigel Jones (instructed by L B Marks & Co) appeared on behalf of the
appellants; Francis Ferris QC and Miss Beverly-Ann Rogers (instructed by Taylor
Garrett) represented the respondents.
Giving
judgment, FOX LJ said: This is an appeal by landlords from a decision of Judge
Hunter at the Wandsworth County Court. It concerns the meaning of the word
‘house’ in Part I of the Leasehold Reform Act 1967. In substance the position
which has arisen is this: the building was constructed as two maisonettes or
flats, one on the ground floor and the other on the first floor — each having
its own front door to the street. The front doors were side by side in the
front porch. Access to the first-floor maisonette was by a hall and staircase
from ground-floor level, divided from the downstairs premises by a wall. Both
flats came into the same ownership. The owner put a door in the dividing wall
of the downstairs hall of the upper flat and used the entirety of the building
as a residence for himself and his family.
Section 1(1)
of the 1967 Act (as amended) provides:
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 . . .
and certain
conditions are set forth with which we are not concerned in the present case.
They are satisfied.
The premises with
which we are concerned are situate at 83-84 Trouville Road, Clapham, SW4. In
1904 nos 83 and 84, together with 85, Trouville Road were let upon leases for
99 years. On March 24 1954 they were transferred to a predecessor of Alan D
Sharpe, to whom I will refer as the deceased. On March 24 1955 there was a deed
of apportionment whereby the ground rent of £19 for the whole of the premises
was apportioned as to £7 for no 85, and the remaining £12 to nos 83 and 84. In
December 1979 nos 83 and 84 were transferred to the deceased by W J Hillier,
who was then the tenant for the residue of the term. In March 1965 nos 83 and
84 were separately rated at a rateable value of £216.
In June 1984
statutory notice was given by the deceased pursuant to the provisions of the
1967 Act to the freeholder indicating his desire to acquire the freehold of nos
83 and 84 under the provisions of the Act. At the date of the notice the
deceased had been occupying the premises as his sole residence for more than
three years.
On February 14
1985 the deceased died. The first two applicants in this case are his personal
representatives and the third is his son. Between them, under the intestacy,
they are entitled to the entirety of his net estate.
There is an
agreed surveyors’ report regarding the premises, from which I will quote. Under
the heading ‘Description — General’ it states as follows:
Trouville Road
is predominantly a road of buildings designed as purpose-built flats and
maisonettes, there being three types:
(i) On the corner of Trouville Road and Cavendish
Road is the post-war flat development which is owned by the Local Authority.
(ii) Between nos 72 and 73 Trouville Road there
are six terraced blocks of mansion flats known as ‘Cavendish Gardens’.
(iii) There are 17 buildings each constructed to
provide a pair of maisonettes, similar to the subject property, with 11 being
on the south side of the road and 6 being on the north side forming a terrace
of which the subject property forms part.
83-84 Trouville
Road comprises a middle terrace building of considerable depth constructed on
ground and first floors. It was built in the early 1900s as two maisonettes,
one on the ground floor, one on the first floor (83 Trouville Road) having its
own front door at ground level immediately adjoining the front door to the
ground-floor premises (84 Trouville Road).
The definition
of maisonettes distinguishes the properties from what the general public
understand as flats which are usually either purpose-built or
communal common parts.
There is a
communicating door between the entrance hallways of both maisonettes. This was,
at the time of construction, a common practice in the area, the reason being
that this originally allowed for a lower rating assessment.
Then under the
heading ‘Site’ it is stated:
As will be
seen from the plan attached, the building is set back from Trouville Road
behind a garden, with an additional garden at the rear and a concreted area
providing parking for two cars with direct access to Elms Crescent. There are
stairs from the first floor to the concreted area at the rear.
Accommodation.
The ground
floor has four rooms, kitchen, utility room, bathroom, with a bath and a
handbasin and a separate low level wc.
The first
floor has three rooms at the front, a bathroom with a bath and a handbasin, a
separate low level wc and, at the rear, 2/3 rooms which have been stripped of
all fittings.
Structure.
Construction
is of brick under a single pitched recently re-slated roof. The floors are of
suspended timber with the exception of the utility room on the ground floor
which is solid.
The report
then continues under the heading ‘Services’:
Gas, water,
electricity and mains drainage are all connected.
There is one
meter only for the gas supply to both floors and a meter for the electricity
supply to the ground floor only. A new rising main has been installed for
electricity to the first floor but is not yet connected.
We are informed
that there is one stopcock to the incoming water main, this being located under
the floor just inside the front door giving access to the first-floor
maisonette.
There is no
central heating.
Hot water is
supplied by gas-fired boilers, the hot water tanks having an immersion heater,
there being one such unit on each floor.
There is then
reference to the rating assessment:
The property
is shown in the valuation list for the London Borough of Lambeth described as a
house and assessed at gross value £495, rateable value £384.
Prior to 12th
August 1980, the maisonettes were assessed separately at gross value £360,
rateable value £274 for the first floor and gross value £345, rateable value
£262 for the ground floor.
The deceased
and his family moved into no 84 in 1979. No 84 was the downstairs maisonette.
The upstairs maisonette was then occupied by Mr Hillier, who was the tenant of
nos 83 and 84. In 1979 the deceased purchased both nos 83 and 84 from Mr
Hillier for the residue of the original term. Upon acquisition, the deceased
constructed a connecting door on the ground floor between the two premises. As
indicated in the surveyors’ report, there had originally been, between the two
premises, a connecting door on the ground floor although over the years that door
had been kept closed.
Having opened
up this connecting door, the deceased and his family thereafter occupied nos 83
and 84 together as their residence.
The meaning of
‘house’ for the purposes of Part I of the Leasehold Reform Act 1967 is set
forth in section 2(1) of the Act and is in these terms:
For purposes
of this Part of this 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; and —
(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.
I need not read
the remaining provisions of section 2.
The judge held
that 83 and 84 Trouville Road was a ‘house’ within that definition, and it is
from that decision that the owner of the freehold appeals.
I take first
the introductory part of that definition, namely:
‘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.
It is common
ground that there has to be a determination of the character of the building at
the date when the deceased gave the freeholder notice of his wish to acquire
the freehold in June 1984. At that time nos 83 and 84 were, and had been for
some years, lived in by the deceased and his family as a single residence — the
access between the two premises having been opened up in 1980. Therefore at the
material date the building was adapted for living in.
The next
question is: was it reasonably so-called?
That is to say, was it reasonably called a ‘house’? In that connection it matters not that the
building was divided horizontally into flats or maisonettes; the section of the
1967 Act specifically so indicates. Therefore one has a building which was adapted
for living in as a single residence and had been so lived in for several years.
Save for the existence of the two front doors within the front porch, from the
street the property looked like any ordinary terrace house. We have before us
photographs which were provided with the surveyors’ report. The internal
plumbing and bathroom arrangements no doubt in part owe their present form to
the fact that the building was originally two maisonettes, but in my view
nothing turns upon that. That fact and the existence of the two front doors
seem to me to be mere detail and do not affect the substantial nature of the
building.
In my view, by
June 1984 there cannot be any doubt that having regard to the internal access
arrangements and to the user for purposes of habitation together with the
continued user as a single dwelling over several years, this justifies the
conclusion that it can reasonably be called a ‘house’. I do not consider that
it could reasonably have been called anything else. However, that does not
matter; if it could reasonably have been called a ‘house’, the fact that it
might also reasonably be called something else is not relevant. As to that, I
refer to the decision of the House of Lords in Tandon v Trustees of
Spurgeons Homes [1982] AC 755 and in particular to the speech of Lord
Roskill (who gave the majority speech) at p 767 and to the observations of Lord
Wilberforce at p 760 and of Lord Fraser at p 761.
I come then to
the concluding words of section 2(1), that is to say, the two paras (a) and
(b), which I have read. So far as (a) is concerned, that gives rise to no
difficulty from the point of view of the tenant; indeed, it assists the tenant
by providing that a building horizontally divided into flats or maisonettes may
be a ‘house’.
I then come to
(b). It is said on behalf of the landlords that this building is vertically
divided, since the stairway to the first floor divides the hall and the
staircase from the adjoining area of the downstairs flat and therefore, having
regard to the provisions of (b), the premises cannot be a ‘house’. It is
asserted that that brings the building within the provisions of (b), namely a
building divided vertically, and the building as a whole is therefore not a
‘house’ although the units into which it is divided may be.
I do not feel
able to accept that submission. In my view para (b) is concerned with the
vertical division of a building into units. For example, the terrace in the
present case is a building vertically divided into units; thus no 23 is vertically
divided from no 22 and no 24 from no 25. But inside nos 23 and 24 the division
into units was not vertical; it was horizontal, being a division into the upper
and lower maisonettes. The dividing wall between the lower maisonette and the
hall and stairs of the upper maisonette was, in my view, wholly subsidiary to
that fundamental division. It did not create a unit at all; the only units were
the two maisonettes and they were the consequence of horizontal and not
vertical division.
Further, it is
clear from para (a) that a building may be a house for the purposes of the
statute although horizontally divided into flats and maisonettes; but such
flats or maisonettes which are on the first floor or higher level of any
building will inevitably require a means of access, and the limited partition
adapted in the present case is an obvious way of providing for such access.
In my view the
draftsman cannot have supposed that such a structure would prevent the building
being a ‘house’ within the definition which is set forth. Therefore the result
is that the judge was right; this is a house within the meaning of section 2(1)
of the 1967 Act and accordingly in my opinion the appeal should be dismissed.
BOOTH J agreed
and did not add anything.
The appeal
was dismissed with costs.
