Eileen O'Sullivan v Douglas Henry John Barnett and Eva Maria Barnett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 19 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0519-10 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1994 |
[1994] EWCA Civ J0519-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(Order of his Honour Judge Hunter)
Before: Lord Justice Butler-Sloss Lord Justice Hirst
MR. WONNACOTT (instructed by Messrs. Bennett Metcalfe, Bristol, BS1 4LY) appeared on behalf of the Appellant.
MR. MAYNARD (instructed by Messrs. Preston-Ranse & Co., London WC2R 1AP) appeared on behalf of the Respondent.
Thursday 19th May 1994
LORD JUSTICE HIRSTThis is an appeal by the defendant, Eileen O'Sullivan, from the order of His Honour Judge Hunter made on 5th March 1993 in the Wandsworth County Court, whereby it was ordered that the plaintiffs, Douglas Henry John Barnett and Eva Maria Barnett, recover possession of a furnished room at No 24 Vardens Road, Battersea upon the expiry of 42 days.
The appellant is the tenant of the room in question, and the respondents occupy as their residence the remainder of the building.
The plaintiffs' claim for possession, which was upheld by the learned Judge, was based on section 12(1)(b) of the Rent Act 1977, which provides as follows, omitting the irrelevant words :
"Subject to subsection (2) below, [which has no application in this case] a tenancy of a dwelling-house … shall not be a protected tenancy at any time if -
…
(b)the tenancy was granted by a person who, at the time that he granted it, occupied as his residence another dwelling-house which also forms part of that building."
The appeal turns entirely on the construction of this sub-section and its application to the facts of the present case, the crucial issue being whether or not the plaintiffs were in occupation of the remainder of the building at the time they granted the tenancy to the defendant.
This question was posed in a somewhat more expanded form at the end of the hearing in the form of a note drafted by counsel and approved and signed by the learned Judge pursuant to Section 80 of the County Courts Act 1984 as follows:-
"Whether physical residence by the landlord in person commencing one week after the grant of the tenancy together with:
(1)An express intention by the landlord before the said grant to take up physical residence in the building in person at or about the same time of the grant and or, alternatively, the taking up of occupation as a residence in the building by an adult son of the landlord who is part of the landlord's household constitutes occupation as a residence for the purpose of section 12 of the Rent Act 1977?"
The case raises a novel point under the Rent Act legislation which, so far as counsels' researches reveal, has not previously been considered, concerning a situation which not uncommonly arises, where a landlord and his tenant move together from one building to another by mutual consent, the tenant having accepted the offer of a tenancy in the new building in place of his tenancy in the old.
The facts are not in dispute; indeed the Judge payed a striking tribute to the witnesses on both sides, stating that their "transparent honesty, decency and fairness" was plain from the evidence.
Originally the plaintiffs acquired No 27 Vardens Road (opposite No 24) in 1960, and lived there until 1984 with their children. Shortly after moving in they let a room in the house to the defendant.
At some date prior to 1984 the plaintiffs also acquired No 24 Vardens Road, which consists of three upper floors and a basement, and at first operated it as a furnished bed sitting room house. However, at the end of 1983 they decided to convert No 27 into three self-contained flats, and to move their residence to No 24, with their son Christopher (then at college but living at home as a member of the family with his mother providing his food and doing his washing) and also their daughter aged about 12. The defendant was fully cognisant of the plaintiffs' plans, and was prepared to move on the basis that she would be offered a tenancy in No 24.
In February 1984 the plaintiffs obtained London Building Act permission for their intended conversion of No 27, which they planned to do themselves, since they were experienced in such matters. Their work was to commence on the top floor of No 27, where both Christopher and the defendant were living, and in consequence these two were the first to move.
The defendant moved from No 27 to No 24 with her nephew's assistance on a Saturday at the end of February 1984, and Christopher moved very shortly beforehand, either on the same day or the day before, the defendant occupying the basement and Christopher a room above.
At that time Mr and Mrs Barnett were spending the day working at No 24 but preferred sleeping in No 27, and that arrangement continued for at least a week but certainly for no more than four weeks. The plaintiffs' move was meantime carried out piecemeal and not in one day; and all they had to do was to carry the furniture across the road with no mechanical transport involved.
The defendant was given notice to quit on 14th February 1992 with effect from 21st March 1992.
The learned Judge's conclusions, on which he based his decision in the plaintiffs' favour, were as follows:-
"(1) At the time this tenancy was created which, as I have indicated, was upon Miss O'Sullivan moving in in accordance with her bargain, first of all, the plaintiffs had taken a firm settled decision to take up residence in No 24, which they already owned, and it was furnished. All this was before the tenancy was created.
(2) Subsequently, and without any delay, the plaintiffs carried out their intention.
(3) They forthwith cut off their ability to return to their former home by converting it into three flats and disposing of those flats. Their family, in their son Christopher, took up occupation either before or simultaneously, for all practical purposes, with the creation of the tenancy. I do not think for the purpose of this part of the law I am required to consider fine matters of timing. As I say, that occupation occurred either before or simultaneously with the creation of the tenancy and, of course, the defendant knew what was intended and what would result. Subsequently, as I say, within a very short period, probably no more than nine or ten days at the very most, the plaintiffs were living in No 24."
Paragraph 5 of Schedule 2 of the 1977 Act provides that for the purpose of Section 12, a person shall be treated as occupying a dwelling house as his residence if, so far as the nature of the case allows, he fulfils the same conditions as are required to be filled by a statutory tenant of a dwelling house, ie., substantial use of that house as a residence ( Skinner v Geary (1931) 2KB 546).
On behalf of the appellant, Mr Wonnacott submitted that Section 12 confers a privilege on landlords, and must be strictly applied. On the proper application of the strict words of the Section, the court is enjoined to look at one single instant of time, when the tenancy is granted, and unless the landlord can demonstrate that at this very moment he was in substantial occupation of the building as a residence, his case must fail. By failing to focus on that instant of time, and by stating that he was not required to "consider fine matters of timing" the learned Judge fell into error. In short, in Mr Wonnacott's vivid metaphor, "it's a snapshot not a continuation".
None of the acts of constructive occupation found by the Judge were, he submitted, capable either individually or in combination of amounting to a substantial use as a residence. Furthermore, the Judge erred in paying regard to the plaintiffs' present or future intentions since, in contrast...
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