Hampstead way Investments Ltd v Courtney Lewis-Weare and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE EVELEIGH |
| Judgment Date | 24 February 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0224-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0082 |
| Date | 24 February 1984 |
[1984] EWCA Civ J0224-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
Royal Courts of Justice
Lord Justice Eveleigh
Lord Justice May
84/0082
and
MR NICHOLAS DOWDING, instructed by Messrs Grangewoods, appeared for the Appellants (Plaintiffs).
MR PAUL DE LA PIQUERIE, instructed by Messrs Sears Tooth & Co., appeared for the Respondents (Defendants).
The primary facts found by the learned county court judge in this case were as follows. The first defendant took a lease of No. 5, Meadway Court ("the flat") for three years from 1st May 1970. Living with him in the flat from July 1970 until 1978 were his wife, her son and daughter by a previous marriage—until the latter left towards the end of the period to live in the United States of America—and, after her birth in November 1971, the daughter of their marriage also. The second defendant is the first defendant's stepson. Since July 1970 the second defendant has lived, and continues to live, in the flat as his home.
The accommodation in the flat is somewhat cramped for the first defendant and his family. Further, at all material times he has been, and still is, employed as the director and general manager of a night club which requires him to be at work during the evening and night until 4 a.m. the next morning of every day of the week except Sunday and Monday. Until 1978 the first defendant used to return to the flat after his night's work, where he used to sleep until the following afternoon. Naturally, this was potentially very disturbing for the first defendant's wife and family, as well as for the first defendant himself when he was trying to sleep during the day.
In 1978 the first defendant bought a house about half a mile from the flat at No. 113, Erskine Hill, London NW 11. A certain amount of furniture was moved to the house from the flat and since then the first defendant's wife and daughter have lived there.
In order not to disturb them when he returned from work in the early hours of the morning, the defendant has retained a room in the flat to which he returns to sleep five days a week. The first defendant keeps his working clothes in that room and pays all the outgoings of the flat except for the gas bill which is paid by his stepson, the second defendant.
The first defendant takes no meals in the flat. On the days upon which he works he walks round to the house from the flat when he gets up and has a meal there. On Sundays and Mondays he eats and sleeps in the house. He and his wife entertain and have their friends in at the house. The first defendant pays all the outgoings of the house. In brief, since 1978 the first defendant has used the flat (which had until then been his and his family's "home" for all purposes) for sleeping after his night work on five days a week and for keeping his working clothes. As the learned county court judge put it, the flat "is ancillary to and part of the home (that is to say, of the first defendant) itself". The question for the judge was whether the first defendant had retained the security of the Rent Acts in respect of the flat which he certainly enjoyed between May 1973 and 1978. He decided that the first defendant had retained that security. The landlords of the flat who let it to the first defendant in the first place and now claim possession are the appellants before us in this appeal.
For my part, having regard to the fact that the policy of the Rent Acts is to protect "a tenant from being turned out of his home" (per Lord Greene, M.R. in Curl v. Angelo, 1948, 2 All England Reports, 189 at page 192), I would have expected the law to be such that this appeal would fail. If a man can simultaneously have two homes and be protected in respect of each of them (see Langford Property Company Limited v. Tureman, 1949, 1 King's Bench, 29), it is, I think, arguably unjust that, where a man's home at the date of trial for good reason comprises two properties, in respect of one of which he earlier had Rent Act protection and which he would continue to enjoy were it now his only home, he nevertheless can no longer retain that protection because that one property is now only part of his home.
However, Mr Bernstein for the appellant landlords referred us to the decision of this court in Kavanagh v. Lyrioudias, which was decided on 27th May 1983. That case concerned No. 23, Rutland Street, London SW7. The defendant had been in occupation of the adjoining house, No. 21, as a tenant since 1955. He shared the house for most of the time with his friend, Mr Coles. However, both houses were small and, when in 1973 the then landlord, who owned the pair of houses, offered the defendant a tenancy of No. 23, he gladly accepted it. From then until the claim for possession made in that action, the defendant slept in No. 23; he kept his clothes mostly in No. 21, but to a limited extent in No. 23; he used the bathroom in No. 21, because there was no hot water in No. 23; he used the living-room in No. 21 for normal living purposes and prepared and ate all his meals in the kitchen/ dining-room in that house; he never used No. 23 for cooking or eating; he used the study in No. 23 on occasions when he brought work home.
The defendant's original landlord of both houses disposed of his interest in the reverions to different people—that in his reversion to No. 23 to the plaintiff, Kavanagh. He gave the defendant notice to quit, determining the contractual tenancy of No. 23 and sought possession. He contended, first, that in all the circumstances the defendant's occupation of No. 23 was not protected; secondly, if it was not protected, there was suitable alternative occupation available for the defendant at No. 21 and that it would be reasonable to make an order for possession.
In that case the county court judge concluded "that the defendant is in occupation of No. 23 sufficiently to afford him protection of the Rent Act". He rejected No. 21 on its own as suitable alternative accommodation, since the defendant's principal reason for taking the tenancy of No. 23 in addition to the house next door had been because the latter was too cramped for him and Mr Coles together.
Thus in many respects the facts of Kavanagh v. Lyrioudias were similar to those in the instant case. In the former the defendant's original landlord of both premises had been the same person. In our case one of the two relevant properties has been the defendant's throughout. On the other hand, as I have said, there can be no doubt that, at least between May 1973 and 1978, the defendant did have a statutory tenancy of the flat. I confess that in the events which have since occurred and in the circumstances which presently obtain, I would be loth to hold that he had lost that statutory tenancy, and, with the county court judge in Kavanagh's case, would think that justice should enable me to say, mutatis mutandis, "that the defendant is in occupation of the flat sufficiently to afford him protection of the Rent Act."
However, in the judgment of the court in Kavanagh's case Sir John Arnold, the President, referred to the two earlier cases of Wimbush v. Cibulia, 1949, 2 King's Bench, 564, and Metropolitan Properties Co. (F.C.G.) Ltd v. Barder, 1968, 1 Weekly Law Reports, 286, and then said this about the county court judge's basic conclusion about the defendant's occupation of No. 23 which we have quoted: "In arriving at this conclusion the learned judge did not, as it seems to us, give any consideration to the question whether number 23 was occupied separately from the adjoining premises as a complete home in itself and in the light of the cases to which we have referred this in our view is the question which he should have asked himself. If he had done so, we find it impossible to avoid the conclusion that in the light of those cases he would have come to the conclusion that number 23 was not a complete home. In our judgment this appeal should be allowed and the right of retention of possession of number 23 denied to the defendant for lack of the character of a statutory tenant."
The court then went on to express the view that, had it been necessary to decide the points, they would have held No. 21 to have been suitable alternative accommodation, but that it would not have been reasonable to make an order for possession. Nevertheless they allowed the appeal on the ground that, for the reason they gave in the passage from their judgment which I have quoted, the learned county court judge had been wrong in holding that Lyroudias's occupation of No. 23 was protected.
In my respectful opinion, unless the decision of the court in Kavanagh v. Lyroudias can be shown to have been reached per incuriam, the ratio of it clearly applies to the instant case. The defendant here does not occupy the flat separately from the house as a complete home in itself, and it is conceded that the mere fact that the second defendant, a member of the first defendant's family, does so is not sufficient.
On behalf of the respondent Mr de la Piquerie argued that this court's decision in the earlier case was indeed per incuriam. He submitted that since the passing of the Rent Act 1968, whose relevant provisions were re-enacted in the Rent Act 1977, there are two tests which have to be satisfied before a tenant is entitled to protection: first, under section 1 of the 1977 Act, that the relevant dwelling-house was let as a separate dwelling; secondly, under section 2(1)(a), that the person who was the protected tenant of the dwelling-house (under section 1)...
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