Gaidowski v Gonville and Caius College, Cambridge
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE ORMROD,SIR GORDON WILLMER |
| Judgment Date | 26 March 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0326-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 1975 |
[1975] EWCA Civ J0326-3
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Applicant from Order of His Honour Judge Connolly Gage, Cambridge County Court, dated March 29,1974
The President of The Family Division
Lord Justice Ormrod and
Sir Gordon Willmer
re 6, Harvey Road, Cambridge
MR M. BARNES. (instructed by Messrs. Seaton Taylor & Co, Agents for Messrs. Vintners of Cambridge) appeared on behalf of the Appellant (Applicant).
MR N. HAGUE, (Instructed by Messrs. Francis & Co, of Cambridge) appeared on behalf of the Respondents (Respondents).
I will ask Lord Justice Ormrod to deliver the first Judgment.
This is an appeal from a Judgment of His Honour Judge Conolly Gage, sitting at Cambridge County Court on 29th April. 1974, dismissing an originating application by Mr. Galdowski, the appellant, for a declaration that he was entitled, under the Leasehold Reform Act 1967, to require the freeholders, the Master and Fellows of Gonville and Caius College, to convey to him the freehold of No. 6, Harvey Road. Cambridge, together with a strip of garden running parallel to Harvey Road and lying at the foot of the back gardens of the houses in that road.
No. 6 is one of a pair of semi-detached Victorian houses, the other being No. 8, which were built about 1880 by an architect, Mr. Morley, on land belonging to the college. In 1883 the college granted a lease to the late Mr. J. N. Keynes, a former Fellow of Pembroke College, for a term of 99 years from 25th December, 1881, of Nos. 5 and 6 together, at an annual rent of £30. Mr. Keynes and his family occupied No. 6, but, except in one respect which is highly material to this case, there was no evidence as to the occupation or use No. 5. The important fact was that at some date prior to 1958 an opening was made in the wall separating the adjoining ground floor front rooms of Nos. 5 and 6, and the doorway leading from the hall of No. 5 into this room was bricked up. This extra room appears to have been used as a library by Mr. and Mrs. Keynes.
After the death of Mr. and Mrs. Keynes the unexpired portion of the lease of Nos. 5 and 6 was transferred to Mr. Gaidowski by their personal representative. Sir Geoffrey Keynes, by an assignmentdated 5th December, 1958. Mr. Gaidowski has lived in No. 6 over since, but in 1972 he filled up the opening in the wall between Nos 5 and 6 and re-opened the doorway into the hall of No. 5, replacing the original door which had been stored in the cellar. Nos. 5 and 6 were, therefore, restored to their original condition.
By a notice of application dated 18th January, 1973, Mr. Gaidowski's claimed the freehold of, "All that house garage and garden premises as shown on the attached plan" that is, of No. 6, Harvey Road and the garden strip already referred to. On the 7th June, 1973, the college gave a notice in reply disputing Mr. Gaidowski's claim in respect of No. 6 on the ground that, "during part of your 6 year period of residence you have not occupied (In whole or In part) a 'house' as defined by the Act. The relevant building included the ground floor front room of No.5 and was not a 'house' by reason of Section 2 (2); in respect of the garden strip on the ground that it was not "let with" No. 6 and so was not part of the premises as defined by Section 2 (3)."
It was common ground in this court and in the court below that the appellant fulfilled all the other criteria prescribed by the Leasehold Reform Act. He was at the date of his notice of application the tenant of a leasehold house on a "long" lease and at a "low" rent, as defined in the Act, and the ratable value of No.5 was £182 per annum, that is, within the prescribed limit of £800. The sole issue on this part of the case was, and is, whether he can fulfill the remaining requirement, namely, that he had occupied the house as his only or main residence for at least five years immediately preceding the date of his notice. Mr. Hague, for the college, concedes that If No. 6 had never been altered by the takingin of the front room of No. 5, there would have been no answer to Mr. Gaidowaki's claim. He also concedes that after the expiry of 5 years from the time of what he calls the "re-conversion" or reinstatement of Nos. 5 and 6, the college could not resist Mr. Gaidowski's claim to enfranchise No. 6. The real question in this case, therefore, is the effect of alterations to the premises during the 5 year period, or, put in another way, how does the Act apply to premises which have been altered, as these premises have been altered, during the crucial 5 year period.
Mr. Hague's main submission, both here and below, is that, so long as No. 6 consisted of the original house plus the additional room taken in by the Keynes from No. 6, the house was not a "house" within the Act, because it was caught by Section 2 (2), and that, therefore, Mr. Gaidowski could not prove that he had occupied a "house" which was within the Act during the requisite period of 6 years, the alterations having been done in 1972, barely a year before the date of the notice of application. Mr. Barnes contention on behalf of the appellant is, and was, that No. 6 could at all time reasonably be called a "house" with the use of an additional room which did not form or could reasonably be regarded as not forming a part of No. 6. If that is so, it would not be caught by Section 2 (2). That subsection reads as follows "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 lays above or below a part of the structure not comprised in the house."
The additional room certainly lay above and below part of the structure not comprised in No. 6, and, therefore, if it is to be treated as an integral part of No. 6 before the reinstatement, No. 6would be excluded by the subsection from the operation of the Act so long as this situation remained unchanged. The learned county court Judge rejected Mr. Barnes submission that the additional room was not part of the house and his alternative submission that it was not a material part, and accordingly dismissed the originating application.
The issue, therefore, turned on the meaning to he given to the word "house" for the purposes of the Act. Section 2 (1) contains what Mr. Barnes called the basic definition of a house and reads as follows: "For the purposes of this Part of this Act, 'house' includes any building designed or adapted for living in and reasonably so-called, notwithstanding that it is not structurally detached…"
This is a fairly elastic definition. All that has to be shown is that the premises might reasonably be called a house. The fact that they might equally well be called something else will not take them out of the Act ( Lake Bennett. 1970 1 Q. B. p. 663).
Mr. Hague's contention leads to an anomaly which ought, if possible, to be avoided. It was agreed by both counsel, who have great experience in this field, that the only practical reason for the inclusion in the Act of subsection (2) of Section 2 is a convincing one. Flying freeholds or freeholds in the air give rise to peculiarly difficult convincing problems. These are obviated by this subsection, which simply excludes from the provisions of the Act any premises the enfranchisement of which would lead to difficulties of this kind. But no such difficulties can arise in this case, because the notice of application is confined to No. 6 in its original form. So attempt Is being made here to securethe freehold of the front room of No. 5, and the only result of accepting Mr. Hague's submission would be to postpone the enfranchisement of No. 6 until 1977, at some additional expense to the tenant.
Mr. Barnes contention also is not free from difficulty. in that it makes his client's claim to the freehold of No. 6 depend on what must be an impressionistic conclusion as to what can or cannot reasonably be called a "house".
With all respect to the two very experienced counsel who argued this case with the utmost care and lucidity, I cannot suppress my doubt whether on the facts of this case this problem actually arises at all. If one begins with Section 1, the Act confers on the tenant the right to acquire the freehold of "the house and premises". I ask myself: What house and premises? The answer must be the house and premises identified in the notice of application, that is, No. 6, Harvey Road, in its condition at the date of the notice. This house is a leasehold house, let on a long lease, at a low rent, and of a ratable value below £200. Now comes the crucial part, that is, paragraph (b) of subsection (1), which reads "at the relevant time… (the applicant) has been… occupying it as his residence for the last five years I find it difficult to understand why "It" should not refer to the leasehold house identified in the notice of application, that is, No. 6, in its condition at that date If this is correct, the fact that for some part of the 5 year period No. 6 was connected to the front room of No. 5, which was out off from No 6, becomes irrelevant. I very much doubt whether the draftsman of the Act could have Intended subsection (2) of Section 2 to apply to the house referred to as "it"If it does, it leads to the curious result that by altering the property at any time before making his application the tenant can reduce the ratable value to a figure within the £200 and so bring it within the Act, but cannot eliminate the effect of Section 2 (2), which has ceased to have any practical affect.
However, this point was not taken in the court below, and this court must therefore deal with the case on the basis of the arguments addressed...
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