Chelsea Yacht and Boat Club Ltd v Pope

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE TUCKEY,LORD JUSTICE WALLER,LORD JUSTICE MORRITT
Judgment Date06 Apr 2000
Judgment citation (vLex)[2000] EWCA Civ J0406-4
Docket NumberCCRTF 1999/0396/B2

[2000] EWCA Civ J0406-4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WEST LONDON COUNTY COURT

(HIS HONOUR JUDGE COTRAN)

Before:

Lord Justice Morritt

Lord Justice Waller and

Lord Justice Tuckey

CCRTF 1999/0396/B2

Chelsea Yacht & Boat Company Limited
Claimant
and
Justin Pope
Defendant

MR J MALE (instructed by Bushnell Shortman, Kent CT20 2AY) appeared on behalf of the Appellant

MISS V EASTY (instructed by Gold, Lerman & Muirhead, London SE1 9TW) appeared on behalf of the Respondent

Thursday, 6th April 2000

LORD JUSTICE TUCKEY
1

Is the letting of a houseboat, the tenancy of a dwelling house for the purpose of Part One of the Housing Act 1988?

2

This question arises on appeal from His Honour Judge Cotran in the West London County Court who decided that the agreement under which the respondent, Mr Pope, occupies a houseboat on the Thames was such a tenancy.

3

The appellants, Chelsea Yacht & Boat Company Limited, now own the houseboat. They also run the boatyard and own the moorings where it is moored on the north side of the river upstream of Battersea Bridge in London. The boatyard has various facilities for house-boats on the embankment and on floating barges.

4

The bed of the river is owned by the Port of London Authority who, for an annual licence fee, permit the appellants to maintain among other things mooring piles, mooring pontoons and gangways to accommodate residential craft in the river. The licence authorises them to grant mooring licences and charge fees for the use of the moorings. The mooring pontoons rise and fall with the tide and run in a line parallel with the embankment wall in Cheyne Walk. The house-boats are moored in a line either side of and stern or bow to the pontoons. They lie across the stream held by anchors. On the pontoons the appellants provide services for the house-boats in the shape of water, gas, electricity, telephone and vacuum drainage. These services are easily connected to the house-boats by plug-in or snap-on connections.

5

The "Dinty Moore" occupied by Mr Pope is a converted wooden D Day Landing craft fitted inside a steel Thames barge built by the appellants in about 1967. It is 46' long and 11' wide and is moored stern to the pontoon and the adjoining house-boats by a number of rope mooring lines. Lines from the bow go to an anchor in the river bed at the foot of the embankment wall and to rings in the wall itself. It is connected to the services provided by the appellants. The houseboat takes the ground at about half tide. In other words it is afloat for about six hours or so and then aground for the following six hours. The conversion involved removal of the engine and the creation of permanent living accommodation below, the layout and detail of which do not matter.

6

In 1993 the houseboat was owned by Mrs Crafter and was moored in the position I have described (mooring 21) under the terms of a mooring licence from the appellants. Mrs Crafter let it and its contents to Mr Pope on the terms of a written agreement dated 31st August 1993 ("The Agreement"). The Agreement is in a form largely appropriate for the letting of a dwelling house. That is not surprising since it closely follows the form in the Encyclopedia of Forms and Precedents, Fifth Edition Volume 24 which is preceded by a note which says:

"A houseboat is a chattel, and although the hiring of a chattel cannot strictly be termed a leasing, an agreement for the hiring of a houseboat which will remain at the same mooring place may well follow the general form of an agreement for the tenancy of real property."

7

The Agreement describes the parties as landlord and tenant and the houseboat as a single-storey vessel. The letting was for a term of six months from 1st September 1993 at an annual rent of £3,380 per annum payable monthly. Mr Pope agreed to carry out certain repairs to the houseboat straightaway, including painting its hull, and to keep it and the mooring in good and tenantable repair. He was not to allow it to obstruct the waterway or use it other than as a single private dwelling. It was not to be removed from the mooring without Mrs Crafter's permission other than to enable Mr Pope to comply with his obligations under the Agreement.

8

Mr Pope has made his home in the houseboat since 1993. The Agreement was extended at six monthly intervals by Mrs Crafter until about 1996 when the appellants bought the houseboat from her. They extended The Agreement until 30th April 1997 but then sought possession for failure to pay the rent and other breaches of The Agreement. Proceedings were started in March 1998 and the question which gives rise to this appeal, "was the Agreement governed by the Housing Act 1988?" was decided as a preliminary issue. Both the district judge and Judge Cotran, as I have said, decided that it was.

9

So far as is relevant to this case the Housing Act 1988 applies to "A tenancy under which a dwelling house is let." The appellants contended firstly that the houseboat is a chattel and so is incapable of being the subject of a tenancy and secondly, that in any event a houseboat is not a dwelling house.

10

It is not clear from the judge's judgment whether he appreciated that these were separate points. He appears to have accepted that the houseboat had become part of the land by annexation. He did not think such a conclusion would create difficulties, saying:

"The houseboat has been there for many years. It was bought by the Plaintiff. It can be sold to somebody else. I do not see any problem relating to the ownership of the land on which it lies."

11

At the end of his judgment he said correctly that there was no decided case dealing with a houseboat. And added:

"It makes not the slightest difference, as far as I am concerned, whether a houseboat lies on the land after removal from water or is attached to the river bed and/or float for part of the day, so long as it is permanently immobile and let as such."

12

On the second point he appears to have agreed with the district judge who said:

"I can see no reason, why in circumstances such as these, a houseboat cannot be both a dwelling house and a boat. That is, after all, what the word 'houseboat' implies."

13

On this appeal we have only heard argument on the first point, since it is accepted on behalf of Mr Pope that if the appellants are right on this point the appeal must succeed.

14

It is common ground that the Housing Act 1988 only applies to the letting of land and that the houseboat is a chattel unless it has become part of the land by annexure.

15

The principles by which to test whether a chattel has become part of the land have recently been considered by the House of Lords in Elitestone Limited v Morris [1997] 1 WLR 687. In that case the question was whether a chalet resting only by its own weight on concrete pillars set into the ground had become part of the land. The chalet was connected to the usual services. It could not be taken down and reerected elsewhere; it could only be removed by demolition. The House restored the assistant recorder's conclusion that it was part of the land. The head note says:

"The answer to the question whether a structure became part and parcel of the land itself depended on the degree and the object of annexation to the land; that, assessed objectively, a house built in such a way that it could not be removed except by destruction could not have been intended to remain a chattel and must have been intended to form part of the realty."

16

Various passages in the speeches in this case are relied on by both sides. However, the broad questions which the Court has to consider are accurately summarised in the head note.

17

In considering the degree of annexation, it is obviously of importance that the chattel can be removed without injury to itself or to the land. There must also be a degree of permanence. Purpose is also important as the illustration given by Blackburn J in Holland v Hodgson [1872] LR 7.CP 328 at 335 cited with approval in Elitestone shows. He said:

"Blocks of stone placed one on top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to show that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee at the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land."

18

Miss Easty in her clear and spirited submissions to us on behalf of Mr Pope referred to a number of other cases under different legislation. First, she referred to rating cases where the Court had to consider whether the occupiers of a hulk Cory v Bristow [1877] 2 AC 262; a landing stage, Forrest v Overseers of Greenwich [1858] XXI Victoria 890; and the Hispaniola Westminister City Council v Woodbury [1991] EGLR 173, all in the Thames were in rateable occupation of land. But these cases only illustrate the circumstances in which under the intricacies of rating law a chattel becomes rateable if it...

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    ...not a building at all be a "house", for example, a caravan (c/f Ex parte Allen [1985] EGLR 153) or a houseboat (c/f Chelsea Yacht and Boat Co Ltd v Pope [2000] 22 EG 87 Second, the requirement that the building be reasonably called a house serves to exclude buildings such as purp......
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