Boss Holdings Ltd v Grosvenor West End Properties Ltd and Another; Mallett & Son (Antiques) Ltd v Same
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE CARNWATH,LORD JUSTICE TUCKEY |
| Judgment Date | 21 March 2006 |
| Neutral Citation | [2006] EWCA Civ 594 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2005/1484 |
| Date | 21 March 2006 |
[2006] EWCA Civ 594
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL COUNTY COURT
HIS HONOUR JUDGE COWELL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Lord Justice Laws
Lord Justice Carnwath
B2/2005/1484
B2/2006/0106
MR E JOHNSON (instructed by Messrs Forsters LLP, London W1J 5LS) appeared on behalf of the Appellants
MR A RADEVSKY (instructed by Messrs Boodle Hatfield, London W1S 1DA) appeared on behalf of the Respondents
Judgement
1. These are two appeals against decisions of HHJ Cowell given in the Central London Civil Justice Centre. Both raise a question as to the correct construction of section 2 (1) of the Leasehold Reform Act 1967 as amended ("the Act") . The judgment in Boss Holdings Ltd was given on 16 May 2005 and permission to appeal was granted by Neuberger LJ on consideration of the papers on 8 August 2005. The judgment in Mallet & Sons (Antiques) Ltd was given on 23 November 2005 by which time permission of course had been granted in Boss and so in this case HHJ Cowell granted permission to appeal himself.
Each case concerns a substantial property in Mayfair, London W1. In Boss the property is at 21 Upper Grosvenor Street. In Mallet it is Bourdon House, 2 Davis Street. The respondents in both cases are the same two companies. They are part of the Grosvenor Estate. The second respondents own the freehold in both properties, but I will compendiously refer to the respondents as "Grosvenor". The question in both cases is whether the appellants are entitled to acquire the freehold of the property in question from Grosvenor. The appellants in each case have a leasehold interest. They each, or in Boss's case a predecessor lessee, gave notice of their desire to have the freehold transferred to them pursuant to the Act. Grosvenor served notices of objection in reply, disputing the appellants' right to have the freehold. The point taken by Gosvenor was that in each case the property was not a "house" within section 2(1) of the Act. There was another point taken in Mallet but that was abandoned. The lessees brought proceedings to make good their claims but HHJ Cowell upheld Grosvenor's argument and dismissed them.
It is convenient first to refer to the Act. Section 1(1) opens with the words:
"This Part of the Act shall have effect to confer on a tenant of a leasehold house … a right to acquire on fair terms the freehold …"
Numerous conditions are then set out which I will pass over. The critical provisions for our purposes is section 2(1) which provides:
"For purposes of this Part of this Act, "house" includes any building designed or adapted for living in and reasonably so called, not withstanding 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 …"
There is no dispute to speak of about the facts, which although they are important I may describe quite shortly. 21 Upper Grosvenor Street was built as a single house between 1732 and 1734; it was occupied as a single residence until 1942. Although the eighteenth century structure remains, a good deal of work has been done to the property over the years. In the nineteenth century the roof garrets were converted into a full storey and another storey was added. In 1908 the property was refaced with Portland stone. After 1942 it was occupied by the Free French government in exile. From 24 June 1946 it was occupied by a company which carried on a dressmaking business in the basement, ground and first floors. The second, third, and fourth floors were laid out as residential flats and used as such.
The current lease of the property was granted in 1948 to Mr Adolph Rothschild. The user clause, clause 2(10) , provides for residential use only for the upper three floors. The commercial use of the lower floors continued until about 1990; those floors have been vacant since that time. The residential use of the upper floors continued into the 1990s but thereafter, certainly by the time the lessee's notice was served on 14 October 2003, they have been and remain unoccupied and very dilapidated. They were as at 14 October 2003 incapable of being occupied as residences. That is amply demonstrated by photographs in the appeal bundle, pages 105 to 191, which show bare stripped walls, in some cases ceilings stripped to the joists and floors taken out.
Bourdon House in Davis Street was built between 1720 and 1725 for William Bourdon, a Justice of the Peace and parish vestryman. It was occupied as a residence until 1957 or 1958 when the present lessees, the appellants, acquired the lease. The last resident was apparently Anne, Duchess of Westminster, the fourth wife of the Second Duke. Since 1958 the appellants have been in continuous occupation of the property where they have carried on business dealing in antique furniture and rare objets d'art. The whole of the property has been given over to this use save for a two-bedroomed caretaker's flat on the ground floor which is ancillary to the business. Over the years there have been substantial alterations and extensions to the properties. Since 1957 the appellants have erected a two-storey extension at the rear, which includes a goods lift. The kitchens in the basement have been stripped out and converted to workshops and storage space. In the result a substantial part of the property now comprises workshops and storerooms and the remainder, other than the caretaker's flat, is laid out as showrooms.
In this case, however, unlike Boss, the appellants assert that at the date of the notice the property was capable of being occupied for residential purposes. In each of the two cases HHJ Cowell held that the property was not "designed or adapted for living in" within the meaning of section 2 (1) . In Mallet he also held that the property was a house "reasonably so called", and Grosvenor seek to challenge that conclusion by a Respondents Notice. However the dispositive question in both appeals is whether the judge was right on the application of the statutory test "designed or adapted for living in".
It is I understand common ground that in deciding whether a property satisfies the definition of house in section 2(1) the court must look at the facts as they were at the time the tenant's notice was served. The appellants and respondents part company on a single over-arching issue: does the test "designed or adapted for living in" import that at the time of the tenant's notice the property must have been capable of being occupied as a residence? Mr Radevsky for Grosvenor says that it must.
The issue in this case as to the construction of this statutory test is a novel one, because until 26 July 2002 there was a requirement of actual residence at the property as a condition of obtaining enfranchisement under the Act. However that requirement was abolished for most cases by section 138 of the Commonhold and Leasehold Reform Act 2002. Plainly then, earlier cases under the section 2(1) definition could not and did not grapple with the issue which has divided the parties to these appeals.
Authorities to which the judge was referred, Harris and Swick Securities Ltd [1969] 1 WLR 1604, Lake v Bennett [1970] QB 663 and Tandon v Trustees of Spurgeons Homes [1982] 1 AC 755, were all cases where the tenant was living at the premises and the question was whether the property was a house reasonably so called. They involved such questions as what the position would be if the tenant lived in only part of premises and other parts were put to a substantial different use. Thus in Tandon where their Lordships' House divided three to two in the tenants' favour, the premises were a shop with a shopkeeper's flat above.
The judgment in Boss, the first of the two cases decided by HHJ Cowell, is if I may say so, somewhat discursively expressed, but the essential basis of the judge's conclusion may be gleaned from these passages. He said:
"29. … It seems to me that some design or adaptation for living in must be demonstrated by the premises themselves. What precisely has to be shown is of course a matter of degree depending upon many factors such as the size of the property occupied, but ordinarily what is involved is somewhere to sleep, to cook, to wash and simply to be when not out at work or out otherwise, and depending on the size of the place that is commonly provided by a bedroom, a kitchen, a bathroom and w.c. and maybe a living room of some kind.
"31. The heart of my conclusion or conclusions is rather along these lines, that the words "designed or adapted for living in" must refer to the physical state of the building and, secondly, the words relate to the then present state of the property at the time that the notice is given; that is they must relate to the building being at that time designed or adapted for living in, and it does seem to me that the building's earlier, perhaps original or later, design, or earlier adaptation, is of very little or no consequence when dealing with this part of section 2(1) , though I can fully understand that they are of some relevance, as Lord Roskill pointed out, to the question that arises out of the words "reasonably so called". They are relevant to that aspect of the section."
The judge proceeded to hold that the prospects of subsequent adaptation for residence do not form any part of the test. Then at paragraph 33 he said:
...To continue reading
Request your trial
-
Boss Holdings Ltd v Grosvenor West End Properties Ltd and Another; Mallett & Son (Antiques) Ltd v Same
...Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Neuberger of Abbotsbury HOUSE OF LORDS SESSION 2007-08 on appeal from: [2006] EWCA Civ 594 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Edwin Johnson QC (Instructed by Butcher Burns) Respondents: Anthony Radevsky Mark ......
-
Hosebay Ltd v Day and another
...is well evidenced by the fact that the tenant in that case (and the tenant in the case heard together with it in the Court of Appeal — [2006] 1 WLR 2848) did not raise the point. I must confess to having started, in Boss Holdings [2008] 1 WLR 289, paragraph 26, what I now think is a hare b......
-
Bermuda Bar Council v Walkers (Bermuda) Ltd
...harmonious whole, including any text inserted since its enactment (see generally Boss Holdings Ltd v Grosvenor West End Properties Ltd [2006] 1 WLR 2848, para 25). Part VIA (Beneficial Ownership) was inserted into the Act in 2018 and comprises sections 98C to 98U. Under section 98L, when a......
-
Boss Holdings Ltd. v. Grosvenor West End Properties et al., [2008] N.R. Uned. 81
...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 W.L.R. 2848. Boss now appeals to your Lordships' House. [11] It is, quite rightly, common ground between the parties that the question of whether or ......