Defendants each taking room in hotel for indefinite duration – Claimant seeking possession – Whether rooms occupied under tenancies or licences – Whether rooms dwelling-houses – Judge finding rooms occupied under tenancies – Appeal allowed
In January 1985 Collins moved into a room in the Viscount Hotel, London W8, at £70 per week. After 18 months he moved to another room at the request of the hotel, where he stayed for two years. In July 1989 he was told to move to room 403, which was 71 sq ft with a single bed, some furniture, a shower and a basin. In 1990 the weekly rent rose to £91. In July 1998 the claimant purchased the hotel and commenced proceedings against Collins for possession of the room. Collins denied that the rent had included any room services, and claimed that he had exclusive possession of the room, which amounted to a dwelling-house within the meaning of section 1(1) of the Housing Act 1988. On that basis, he submitted that he had a weekly assured tenancy. The judge declared that Collins did have an assured tenancy under the 1988 Act and dismissed the claim for possession.
In December 1995 Carrell moved into a room in the hotel containing a bed, a table and a chair together with an en-suite bathroom with shower and WC. The weekly rent was £119 plus VAT. Carrell gave evidence to the effect that she had expected the hotel to provide bedlinen, to clean the room and to carry out general maintenance. After four weeks she agreed with the hotel that she would stay indefinitely, and, thereafter, she no longer paid VAT. In January 1997 the rent was increased to £126. In July 1998 the claimant also commenced possessions proceedings against Carrell. The judge declared that she, too, had an assured tenancy under the 1988 Act, and dismissed the possession proceedings. The claimant appealed in both cases. The issues were: (1) whether, in relation to each room, it was occupied under a tenancy or a licence; and (2) whether it was a dwelling-house within the meaning of section 1(1) of the Act.
Held: The appeal was allowed in the case of Collins (Mance LJ dissenting). The judge’s order in relation to Carrell was to be set aside and the matter remitted for a rehearing.
1. In relation to Collins, the judge had erred in directing his attention to the way in which the agreement between him and the hotel had been performed, rather than to the rights and obligations arising under the agreement. Furthermore, the judge had failed to consider whether a tenancy or a licence had been created at the outset, and whether anything had subsequently occurred to convert it to a tenancy. The judge had found that room-cleaning and the provision of bed linen had initially been included in the rent, which suggested that Collins had not had exclusive possession and that a licence had been created by the original agreement.
2. The question of whether a room had the necessary facilities for living, sleeping and cooking, and thereby amounted to a dwelling-house, depended on all the facts. There had clearly been facilities for living and sleeping, but no cooking equipment had been provided in any of the rooms occupied by Collins, and there was no evidence that it had been originally agreed or contemplated that he would introduce his own. The fact that he did bring in some electrical equipment did not change the nature of the original consent and did not make the room a dwelling-house. Therefore, it could be concluded that Collins had been a licensee.
3. It was plain that Carrell had been a licensee for the first month of her occupation because she had not had exclusive possession, since, during that period, the hotel staff had needed to enter her room to provide cleaning services and to change the bedlinen. It was doubtful whether there had been a fundamental change from the licence to a tenancy at the end of the first month or thereafter. Furthermore, the judge had erred in treating the fact that Carrell had brought her own cooking facilities as sufficient evidence for holding that the room had been a dwelling-house. It would be wrong to decide the issues in relation to Carrell on basis of the facts found by the judge, since they were insufficient. Accordingly, the order of the judge in relation to Carrell was to be set aside and the matter remitted: Street v Mountford [1985] AC 809; Westminster City Council v Clarke [1992] 2 AC 288; Parkins v Westminster City Council [1998] 1 EGLR 22 applied.
Philip Galway-Cooper (instructed by Fladgate Fielder) appeared for the claimant; Richard Vain (instructed by Alan Edwards & Co) appeared for defendant Collins; Paul Staddon (instructed by Oliver Fisher & Co) appeared for the defendant Carrell.
Thomas Elliott, barrister
