Collins v Howard de Walden Estates Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aldous:,Lord Justice Dyson |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWCA Civ 545 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2003 |
| Docket Number | Case No: B2/2002/1417 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE HALLGARTEN
lord Justice Aldous And
Lord Justice Dyson
Case No: B2/2002/1417
Miss J. Jackson QC and Mr Timothy Harry (instructed by Speechly Bircham) for the Defendant/Appellant
Mr Anthony Radevsky (instructed by Lawrence Graham) for the Claimant/Respondent
Mrs Roberta Collins is the owner of a lease dated 9th February 1977 of 11 and 12 Devonshire Mews South, London WHoward de Walden Estates Limited (HDW) are the freeholders. On 10th July 2001, Mrs Collins started these proceedings seeking a declaration that she was entitled, pursuant to the Leasehold Reform Act 1967, to acquire the freehold of numbers 11 and 12 on fair terms. That was resisted by HDW. The dispute came before His Honour Judge Hallgarten who, in his judgment of 16th May 2002, upheld the submissions of Mrs Collins and granted the declaration sought.
The judge obtained guidance from the judgments of this Court in Malekshad v Howard de Walden Estates Limited [2001] 3 WLR 824. He realised that that case was due to be considered by the House of Lords and therefore gave permission to appeal upon the basis that this Court would have the advantage of the speeches in the House of Lords. They were available to us ( [2002] HL 49; [2002] 3 WLR 1881).
The dispute between the parties turns upon the application of s. 2, in particular s. 2(1)(b) of the 1967 Act. The relevant parts of s. 2 read as follows:
"s 2 Meaning of "house" and "house and premises", and adjustment of boundary.
(1) For purposes of this Part of this Act, "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", though 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.
(2) References in this Part of this Act to a house do not apply to a house which is not structurally detached and of which a material part lies above or below a part of the structure not comprised in the house.
…
(5) In relation to the exercise by a tenant of any right conferred by this Part of this Act there shall be treated as not included in the house and premises any part of them which lies above or below other premises (not consisting only of underlying mines or minerals), if –
(a) the landlord at the relevant time has an interest in the other premises and, not later than two months after the relevant time, gives to the tenant written notice objecting to the further severance from them of that part of the house and premises; and
(b) either the tenant agrees to the exclusion of that part of the house and premises or the court is satisfied that any hardship or inconvenience likely to result to the tenant from the exclusion, when account is taken of anything that can be done to mitigate its effects and of any undertaking of the landlord to take steps to mitigate them, is outweighed by the difficulties involved in the further severance from the other premises and any hardship or inconvenience likely to result from that severance to persons interested in those premises.
…"
Section 1 of the 1967 Act enables a tenant who is occupying a house as his residence to acquire the freehold on fair terms. In this case Mrs Collins contends that she is such a tenant. HDW dispute her claim upon the basis that numbers 11 and 12 do not together constitute a dwelling house within section 1 as Mrs Collins contends. They do so on two grounds. First that numbers 11 and 12 are not a house and premises, but two houses. Second that the property is divided vertically and is therefore excluded by subsection (1)(b) of section 2.
The issue between the parties is a question of mixed fact and law to be decided as of 2001. The judge saw the property and there is no dispute as to the facts, albeit there is a dispute as to the conclusion to be drawn from them. Using the judgment I can take the background shortly.
By agreement made on 15th November 1976 it was agreed that Mr Laurence Rose would surrender to HDW the two head leases that he owned in respect of numbers 11 and 12 and that Mrs Anita Rose, his wife, would surrender her underlease of number 11. In return HDW agreed to grant Mrs Rose a new head lease for a term of 99 years of numbers 11 and 12. It was a term of the agreement "that Mrs Rose will within 12 months … at her own expense carry out the alterations in order to combine numbers 11 and 12 Devonshire Mews South into a single private residence in accordance with the drawing … attached hereto such works to be completed to the entire satisfaction of the landlord". The new head lease was duly granted on 9th February 1977. It contained the usual covenants. Under clause 2(15) the tenant covenanted:
"(a) To use and occupy the demised premises as a single private dwelling house provided that this shall not prevent the flat on the first floor of the part of the premises known as number 12 Devonshire Mews South from being used as a separate self-contained private residential flat in the occupation of one household or family.
(b) As to the part of the ground floor of number 12 Devonshire Mews aforesaid comprising garage accommodation to be used as the garaging of private motorcars ancillary to the use only of that part of the demised premises known as number 11 Devonshire Mews South."
Clause 24 (c) required the tenant:
"Not at any time during the said term to underlet any part of the demised premises, (here meaning a portion only and not the whole thereof), but this shall not prevent the subletting of the flat on the first floor of the part of the demised premises known as number 12 Devonshire Mews South, subject always to the provision of sub-clause (23) of this clause and paragraphs (e) and (f) of this sub-clause (24)."
By an underlease of 19th May 1983 Mrs Rose let to Susan Green the flat on the first floor of number 12 until 2075. Mrs Collins together with her husband acquired the head-lease from Mrs Rose on 1st April 1985. Mr Collins by deed of gift dated 17th January 1992 transferred his interest to his wife.
Prior to the agreement of 1976 numbers 11 and 12 were separate with number 11 consisting of a garage and living accommodation on the ground floor and living accommodation on the first floor. Number 12 had garages on the ground floor with a flat above. A communicating door was made in 1977 through the party wall between number 11 and number 12. It gave access from the patio of number 11 to a utility room situated at the back of the ground floor in number 12 and from there to the garages in number 12. It seems that that was considered by HDW to comply with the 1976 agreement and to convert numbers 11 and 12 into "a single private residence". Certainly HDW never complained that the obligation in the 1976 agreement requiring that the two properties should be combined into a single residence was not complied with.
In 1985 work was carried out on number 12. An entrance lobby was made and the first floor flat was completely remodelled. Photographs taken in 2001 show the front of number 11 as having on the ground floor a front door and two main windows with window boxes and three windows on the first floor. Number 12 has, adjacent to number 11, two garages then a front door on the ground floor and four windows on the first floor.
The plan set out below fairly illustrates the layout of numbers 11 and 12, but the door from the utility room to the garage area in number 12 is not shown.
Before the judge, the submissions of the parties concentrated on whether numbers 11 and 12 were a house or were two houses. The judge said they were one house. He said:
"34. Such being the relevant principles, can numbers 11 and 12 be reasonably be called a house? In my view they can, and I summarise my reasons as follows:
I think that the description of the two properties in the head lease as representing one dwellinghouse is and remains an important, albeit not determinative factor (See Malpas at 110 E to F).
I do not attach weight to the circumstance that access to the storeroom or as I have more appropriately considered it, the utility room, and garage on the ground floor of number 12 comprised an important part of the overall facilities enjoyed by those living at number 11. I do not attach weight to the circumstances of access from number 11 to number 12 was and is only to be gained via the patio and storeroom. The distance is small and the storeroom has a strong feel of being part and parcel of number 11 rather than some separate property.
The existence of a separate, self-contained flat on the upper floor of number 12 does not in my view derogate from the position. The authorities make it clear that the mere fact that part of the building is in separate occupation does not prevent that building from being called a house.
Had the two properties had their facades altered or been painted in the same way as to give the impression of continuity, the position described in the previous sub-paragraph would have been clear, really, beyond all doubt. For my part, while I...
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