Hampstead way Investments Ltd v Lewis-Weare
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 24 January 1985 |
| Judgment citation (vLex) | [1985] UKHL J0124-1 |
| Date | 24 January 1985 |
| Court | House of Lords |
[1985] UKHL J0124-1
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons stated in it I would dismiss this appeal.
My Lords,
I have had the benefit of reading, in advance, the speech to be delivered by my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the benefit of reading in advance the speech to be delivered by my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives would dismiss the appeal.
My Lords,
In this appeal Courtney Lewis-Weare ("the tenant") and Nishith Pandya ("the stepson") are the appellants and Hampstead Way Investments Ltd. ("the landlords") are the respondents.
On or shortly before 13 January 1982 the landlords began an action against the tenant and the stepson in the Willesden County Court, in which they claimed possession of a flat, 5 Meadway Court, Meadway, London N.W.11 ("the flat"). On 4 July 1983 Judge Hill-Smith dismissed the claim for possession on the ground that the tenant was protected by the Rent Act 1977. The landlords appealed against that decision and on 24 February 1984 the Court of Appeal (Eveleigh and May L.JJ.) allowed the appeal and made an order for possession in favour of the landlords. The Court of Appeal refused the tenant and the stepson leave to appeal to your Lordships' House, but leave for them to do so was later given by the Appeal Committee.
The material facts, as found by Judge Hill-Smith or appearing from uncontradicted evidence, are these. The flat had two living rooms, two bedrooms and a small boxroom. At some previous date the tenant had been granted by the landlords or their predecessors in title, a lease of the flat for three years from 1 May 1970 to 1 May 1973. In July 1970 the tenant married and his wife came to live with him at the flat. She already had two children by a previous marriage, a girl called Cheha and the stepson. In November 1971 the tenant's wife had a further child by the tenant, a girl called Naomi.
At all material times the tenant was employed as director and general manager of a night-club in the West End of London. In this employment he was required to work during the night five times a week from Tuesday to Saturday. He finished that work at 4 a.m.
From the time of the marriage until 1978 the tenant, his wife and first the two older children and later Naomi, occupied the flat as their home. In that year the tenant and his wife bought jointly, with the assistance of a mortgage, a house, 113 Erskine Hill, N.W.11 ("the house"). The house had two living rooms and three bedrooms, one of which was very small and inconvenient. It was situated about half a mile from the flat. A certain amount of furniture was moved from the flat to the house, but the rest remained there, and the family then moved to the house and occupied it as their home. By then Cheha had left and gone to America, so that the persons to be housed were the tenant, his wife, the stepson and Naomi.
After the move the wife and Naomi lived entirely at the house. The tenant on the other hand retained a room in the flat for limited use by him. His routine following the nights on which he worked was to sleep in the one room retained by him in the flat from about 5 a.m., when he got back to it from his work, until well into the afternoon. He then went to the house and had a light meal there prepared for him by his wife. After that, except on Sundays and Mondays, he went to the night-club and later ate his principal meal of the 24 hours there. The purpose of his sleeping at the flat, rather than at the house, was to avoid disturbing his wife and Naomi when he returned from work at about 5 a.m. The tenant kept his clothes in his room at the flat and had his mail addressed to him there. He never had any meals at the flat, nor did he entertain any of his friends there.
On Sunday and Monday, when the tenant was off work, he spent his time at the house, sleeping and eating there. In so far as he received and entertained friends, he did so at the house.
While the tenant retained the limited use of one room at the flat as described above, the stepson, who was a self-employed computer programmer and engineer, occupied the rest of the flat for all usual living activities.
The tenant paid all outgoings relating to the house. He also paid the outgoings relating to the flat, including the rent, but excluding the cost of gas, which was paid by the stepson. The telephones at both the house and the flat were rented by the tenant, the telephone accounts were paid by him, and both numbers were shown in the telephone directory as his.
It is not in dispute that the right of the tenant to remain in possession of the flat depends on the application to the particular circumstances of the case of the provisions contained in sections 1 and 2 of the Rent Act 1977. Those sections read:
"1. Subject to this Part of this Act, a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act.
Any reference in this Act to a protected tenant shall be construed accordingly.
2. -(1) Subject to this Part of this Act -
( a) after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it; … (3) In subsection (1)( a) above … the phrase 'if and so long as he occupies the dwelling-house as his residence' shall be construed as it was immediately before the commencement of this Act (that is to say, in accordance with section 3(2) of the Rent Act 1968)."
Section 3(2) of the Rent Act 1968, to which reference is there made, provides:
(2) In paragraph ( a) of subsection (1) above …, the phrase 'if and so long as he occupies the dwelling-house as his residence' shall be construed as requiring the fulfilment of the same, and only the same, qualifications (whether as to residence or otherwise) as had to be fulfilled before the commencement of this Act to entitle a tenant, within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, to retain possession, by virtue of that Act and not by virtue of a tenancy, of a dwelling-house to which that Act applied."
It is common ground in the present case that the flat, when it was first let to the tenant, was let as a separate dwelling-house within the meaning of section 1 of the Rent Act 1977. The result of that is that, when the lease for three years expired on 1 May 1973, the tenant became, and remained, so long as he occupied the flat as his residence, the statutory tenant of it within the meaning of section 2(1)( a) of the Rent Act 1977. The question in dispute between the parties is whether, after the move from the flat to the house in 1978, the tenant continued to occupy the flat as his residence. The tenant contends that he did; the landlords contend that he did not.
My Lords, the result of section 2(1)( a) of the Rent Act 1977, together with section 3(2) of the Rent Act 1968, is that the question, whether the tenant continued to occupy the flat as his residence after the move, has to be decided by reference to the case-law on the subject which grew up during the period after the coming into force of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 and before the coming into force of the Rent Act 1968. It follows that, in order to decide the question in dispute, it is necessary to consider some of the relevant authorities forming part of that case law.
My Lords, the case which the tenant sought to make at the trial in the county court was that he occupied two dwelling-houses as his residences: one was the house and the other was the flat. As will appear when I come to examine the authorities, there is no principle of law to prevent a person occupying two dwelling-houses as his residences at the same time, and being a statutory tenant of either or both. Judge Hill-Smith, however, did not accept the tenant's contention in this respect. Instead he reached a different conclusion, which might aptly be called a half-way house conclusion, which it does not appear that he was invited to do. He expressed his findings and conclusion as follows:
"The view I take on the evidence is that the flat at Meadway Court is ancillary to and part of the home itself. No doubt if Erskine Hill had four or five bedrooms no question would arise. It is clear that the size of Meadway Court was such as to make the acquisition of additional accommodation very desirable for the first defendant. I come to the conclusion that, viewing the evidence as a whole, at the time of acquisition there was no intention by the first defendant to abandon 5 Meadway Court or to give up occupation, and indeed nor,...
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