Landlord and tenant – Assured tenancy – Housing Act 1988 – Chalet – Appellant letting plot on naturist report to respondents under yearly tenancy agreement – respondents purchasing chalet on plot from previous tenant – Appellant later bringing claim for possession – Claim dismissed on ground that respondents having assured tenancy terminable only in accordance with 1988 Act – Whether tenancy agreement involving letting of swelling-house for that purpose — Whether chalet annexed to land or merely a chattel – Appeal dismissed
The appellant company owned a woodland naturist resort at St Albans containing 64 plots let out on tenancy agreements. Originally, tenants pitched tents or caravans on their plots but over the years many had constructed more substantial accommodation such as cabins or chalets. The respondents had purchased one such wooden chalet for £36,000 in 1992 and, at the same time, had entered into a tenancy agreement with the appellant for an annual tenancy of the relevant plot. By that time, a planning restriction prohibiting use of the chalet as a permanent dwelling had ceased to have effect. The respondents remained in occupation of the plot as yearly tenants, first using the chalet only at weekends but later using it all year round.
The appellant became concerned that works carried out by the respondents to the chalet were changing the original wooden dwelling into a larger and more permanent structure. In 2013, they brought proceedings for possession of the plot, asserting that the respondents held no more than an unprotected common law tenancy of the plot which it had validly determined by a notice to quit. The respondents contended that they held an assured tenancy under the Housing Act 1988, which the appellant had not determined in accordance with that Act and in respect of which it had shown no ground entitling it to possession.
Ruling in favour of the respondents, the judge held that the chalet had become part and parcel of the land by the time of the 1992 tenancy agreement, such that the agreement involved a letting of a dwelling-house as a separate dwelling for the purposes of section 1 of the Housing Act 1988 and therefore gave rise to an assured tenancy. She found that the chalet had been erected on the plot as a residence and that the degree of annexation was such that it could not have been moved without taking it apart into its component parts and essentially destroying it.
The appellant appealed. It contended that the judge should have found that the chalet was a chattel not included in the letting such that the tenancy agreement involved no letting of a dwelling-house. It submitted that, in finding the contrary, the judge had failed to attach proper weight to the purpose for which the chalet was erected and the relevant intention of the parties.
Held: The appeal was dismissed.
The judge had properly found on the evidence that the chalet had become part of the land. In making that finding, she had had regard to the nature of the chalet as it was in 1992, when the tenancy was granted, and not to the subsequent alterations to it. She had been entitled to find that the original building, when constructed, could not then be removed except by taking it apart into its component parts. It was designed for residential occupation. The judge had been entitled not only to find that the chalet was immovable save by destruction, but also to draw the inference that it was placed there for the purpose of enabling its occupiers the better to enjoy the amenities offered by the plot and the resort. Those findings led inevitably to the conclusion that the chalet was part of the land: Elitestone Ltd v Morris [1997] 1 WLR 687; [1997] 2 EGLR 115 applied.
The fact that the tenancy agreement described the demised premises simply as “the plot or clearing” did not compel a conclusion that the chalet was not part and parcel of the land demised. At most, it reflected the parties’ failure to realise that the chalet was part of the land. The restriction on use in the original planning permission for the chalet was immaterial since, by the date of the 1992 tenancy agreement, a right had been acquired to use the chalet all the year round. There was no feature of the construction of the chalet that somehow confined it to use during only part of the year. Nor was it material that the parties believed that the chalet belonged to the respondents and was theirs to sell to successor tenants. That amounted to nothing more than evidence of their subjective beliefs and intentions, whereas intention had to be assessed objectively.
The judge was therefore correct to conclude that the chalet, when constructed, was part of the land. Once that was accepted, the finding that the appellant had unwittingly created an assured tenancy could not be avoided by interpreting the tenancy agreement as creating only a letting of the land, with an implied gratuitous licence to occupy the chalet. There was no evidential basis for attributing any such intention to the parties. The court was not in the business of making contracts for litigants before it. If the chalet was part of the land comprising the plot, it followed that it was automatically demised to the respondents under the tenancy of the plot which the appellant granted in 1992.
Since the letting was of a separate dwelling, the tenancy was an assured tenancy. It could not be characterised as a “holiday letting” excluded from the status of an assured tenancy under section 1(2) of, and para 9 of Part 1 of Schedule 1 to, the 1988 Act. When the respondents took on the tenancy, they were entitled to occupy the chalet all the year round and the letting was a tenancy from year to year. There was no evidence on which to find that the letting was only for the purpose of a holiday.
John de Waal QC and Andy Creer (instructed by Gateley LLP) appeared for the appellant; Gary Blaker QC (instructed by Photiades Solicitors, of St Albans) appeared for the respondents.
Sally Dobson, barrister
Read a transcript of Spielplatz Ltd v Pearson and another here
