Boss Holdings Ltd v Grosvenor West End Properties Ltd and Another; Mallett & Son (Antiques) Ltd v Same
| Jurisdiction | England & Wales |
| Judge | LORD HOFFMANN,LORD SCOTT OF FOSCOTE,LORD RODGER,LORD WALKER OF GESTINGTHORPE,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 30 January 2008 |
| Neutral Citation | [2008] UKHL 5 |
| Date | 30 January 2008 |
| Court | House of Lords |
and others
[2008] UKHL 5
Appellate Committee
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellants:
Edwin Johnson QC
(Instructed by Butcher Burns)
Respondents:
Anthony Radevsky
Mark Sefton
(Instructed by Boodle Hatfield)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Neuberger of Abbotsbury. For the reasons he gives, with which I agree, I too would allow this appeal.
My Lords,
I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Neuberger of Abbotsbury and am in full agreement with the reasons he has given for allowing this appeal.
My Lords,
I have had the advantage of considering in draft the speech to be delivered by my noble and learned friend, Lord Neuberger of Abbotsbury. I agree with it and, for the reasons which he gives, I too would allow the appeal.
My Lords,
I have had the advantage of considering in draft the opinion of my noble and learned friend, Lord Neuberger of Abbotsbury. I agree with it and, for the reasons which he gives, I too would allow the appeal.
My Lords,
The short issue in this appeal is whether a property at 21 Upper Grosvenor Street, London W1 is a "house" within the meaning of section 2 (1) of the Leasehold Reform Act 1967 as amended.
Section 1(1) of the 1967 Act, as originally enacted, provided as follows:
"[Part I] of this Act shall have effect confer on a tenant of a leasehold house, occupying the house as his residence, a right to acquire on fair terms the freehold or an extended lease of the house and premises where-
(a) his tenancy is a long tenancy at a low rent and the rateable value of the house and premises [is below certain limits]; and
(b) at…the time when he gives notice in accordance with this Act of his desire to have the freehold or to have an extended lease…he has been tenant of the house under a long tenancy at a low rent, and occupying it as his residence, for the last 5 years or for periods amounting to 5 years in the last 10 years…"
Section 2 of the 1967 Act defined "house" and "house and premises"; subsection (1) is the only provision of relevance for present purposes, and it was in these terms:
"…'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' although 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."
Over the past forty years, significant amendments were made from time to time to the 1967 Act, with a view to extending its reach. Thus, the low rent and rateable value limits in section 1(1) were substantially amended by the Housing Act 1974, then again by the Leasehold Reform, Housing and Urban Development Act 1993, and most recently by the Commonhold and Leasehold Reform Act 2002. More importantly for present purposes, any requirement that the tenant should occupy or should have occupied the house as his residence in Section 1(1) was removed by the 2002 Act, in all but a few cases. However, despite the significant amendments that have been made from time to time to the 1967 Act, section 2(1), the primarily relevant provision for the purpose of this appeal, has remained unchanged.
The property is subject to a lease granted on 30th June 1948 for a term of 87½ years from 25th December 1946. On 14th October 2003, the then-tenant under the lease, Kingdom Properties SA, served a notice on the landlord, the first respondent to this appeal, Grosvenor West End Properties, which holds a head lease from the freeholder, Grosvenor (Mayfair) Estate. Both these companies are part of the Grosvenor Estate, and it is unnecessary to distinguish between them. By the notice, which was in the form prescribed by the 1967 Act, Kingdom sought to acquire the freehold of the property. Some two weeks later, Kingdom assigned the lease, together with the benefit of the notice, to the appellant, Boss Holdings Ltd.
On 29th October 2003, Grosvenor served a counter-notice, disputing the tenant's right to acquire the freehold of the property, on the basis that it was not a "house" within the meaning of section 2(1). That issue came before his Honour Judge Cowell in the Central London Civil Justice Trial Centre on 16th May 2005, when he upheld Grosvenor's argument and dismissed Boss's application for a declaration that it was entitled to acquire the freehold of the property. Boss appealed, and on 21st March 2006 the Court of Appeal upheld the Judge's declaration, in a decision reported at [2006] 1 WLR 2848. Boss now appeals to your Lordships' House.
It is, quite rightly, common ground between the parties that the question of whether or not the property constitutes a "house" must be determined as at the date Kingdom gave the notice seeking to acquire the freehold, namely 14th October 2003. So I turn to describe the relevant history of the property up to that date.
The property was built in the fourth decade of the eighteenth century. The Judge described it as "a fine looking house" consisting of a basement, ground and four upper floors "in a grand terrace of buildings…with an Edwardian façade added about 100 years ago". It was built as a single private residence, and was continuously used as such for over 200 years until 1942, when it was occupied by the Free French Government in Exile. From about 1946, the three upper floors were fitted out for residential use, and the three lower floors were occupied for a dress making business. Under the lease granted in 1948, (a) the second and third floors were to be used as a self contained flat, with the fourth floor for the occupation of servants, and (b) the lower three floors could be used in connection with dress making, subject to a prohibition against any show of business being visible from the exterior.
The commercial use of the lower three floors continued until about 1990, since when those floors have been vacant. The residential use of the upper floors continued a little longer but ended well before October 2003, and quite possibly by 1995, save that a caretaker may have occupied the top floor until about 2001. Although there was evidence as to the planning history of the property, it quite rightly played no part in the parties' arguments, particularly as there is no question of any of these uses being or having been unlawful.
I turn to the physical state of the property. The Judge had the benefit of scaled floor plans and of photographs taken of many parts of the interior around 14th October 2003. The floor plans showed the internal layout of the property, which appeared to be substantially appropriate for a house in single occupation built 275 years ago, and identified its gross internal area as just over 1000 square metres. The photographs showed that the rooms on the three upper floors had been, at least to a very great extent, stripped back to the basic structure. Thus, most of the plaster had been hacked off the main walls, so that one could see the bricks of the outside walling; the ceilings had in many places been removed, so that one could see the underside of the joists and the flooring of the rooms above, and, on the top floor, the roof space; in some rooms, the floorboards had been removed. In effect, it looked as if the top three floors had been virtually stripped back to their outer skin, although the staircases, internal walls, and floor joists (and, in some rooms, the ceilings and floor boards,...
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