Herbert v Byrne
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 26 February 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0226-2 |
| Court | Court of Appeal |
| Date | 26 February 1964 |
[1964] EWCA Civ J0226-2
In The Supreme Court of Judicature
Court of Appeal
From Judge Howard
West London County Court.
The Master of the Rolls,
Lord Denning,
Lord Justice Russell and
Lord Justice Salmon.
Mr R. PATRICK GROUND (instructed by Messrs Wainwright & Co.) appeared on behalf of the Appellant (Defendant).
Mr VICTOR G. WELLINGS (instructed by Messrs Broughton & Co.) appeared on behalf of the Respondent (plaintiff).
In 1863 the freeholder of a plot of ground in Kensington let it to two builders for ninety-nine years from the 25tb December 1863 at a ground rent of £2 a year. The. builders built a house on it and called it No. 37, I field Road. It had a basement, ground, first and second floors. They covenanted to use it as a private dwelling-house or professional residence only, and to keep it in repair during the term of ninety-nine years, and to deliver it up in repair at the end. In 1931 the then freeholder granted the then leaseholder permission to convert or use the house as flatsor maisonettes for occupation by one tenant on each floor, and the rent was increased to £3 a year. The leaseholder agreed to reinstate at the end ofthe lease, if so required. There is no evidence, however, that any work of conversion was carried out, but there is no doubt that the several floors were used and occupied by different sub-tenants.
In the middle of 1962 the lease was vested in a Mr Haines, who seems to have become interested at this time in many of the houses in Ifleld Road. That is shown by the recent case in this court of Haines v. Herbert (1963 volume 1 Weekly Law Reports, page 1401). No. 37 was at this time sub-let to four or five subtenants. The basement was let unfurnished at 16s. ll½ a week. The top floor was let unfurnished at 16s.11½. a week. Those subtenants were protected by the Rent Acts. The ground floor and first floor were let furnished. Those sub-tenants were not protected. The lease was due to oxolre on the 25th December 1962.
In August 1962, when the lease had only four months or so to run, Mr Byrne came on the acene. Ke was the caretaker of a block of flats at No. 42 New Cavendish Street, and In return for his caretaklng he was given the use of a flat in the basement. He lived there with his wife and two sons. He gave a fow services to the flats, such as cleaning the common stair and collecting the rubbish, but otherwise ha was at liberty to work elsewhere, and he did so. He worked as an electrician on his own account during the day, and wont back to the basement flat at No. 42 New Cavendish Street in the evening
In August 1962, when the lease had only four months or so to run, Mr Byrne came on the acene. Ke was the caretaker of a block of flats at No. 42 New Cavendish Street, and In return for his caretaklng he was given the use of a flat in the basement. He lived there with his wife and two sons. He gave a fow services to the flats, such as cleaning the common stair and collecting the rubbish, but otherwise ha was at liberty to work elsewhere, and he did so. He worked as an electrician on his own account during the day, and wont back to the basement flat at No. 42 New Cavendish Street in the evening. Now Mr Byrne saw an opportunity of getting into No. 37 Ifield Road. On the 20th August 1962 he bought the remainder of the lease (and the furniture on the ground and first floors) from Mr Haines for £100, all in. Thenceforward his agent collected the rents from the sub-tenants, and he took steps to get possession of the ground and first floors. This took him some time, but by the end of November 1962 the sub-tenants of those floors left. Mr Byrne took possession of them, together with the furniture, such as it was, in the rooms. The judge described it as "some wretched furniture and worn carpets". Then Mr Byrne moved in himself with some extra bedding and crockery. But it wasseveral weeks before he moved In with his family, Throughout December 1962 he slept In the front room of No. 37, Ifleld Road and had morning tea. He would then go to No. 42, New Cavendish Street and do his work there, and then go and work outside. He used to go back to No. 42, New Cavendish Street for his raid-day moal and often in the evening, but he went to No. 37, Ifield Road to sleep. His wife used to go over to No. 37 to clean It, but sho never slept there in December, and his children never visited him there. The family spent their Christmas together at No. 42 Naw Cavendish Street. On the 22nd March 1963 Mr Byrne left No. 42 Now Cavendish Street altogether, and he and his wife and family oved Into the ground and first floors of No. 37, If laid Road. They have lived there ever since as their home. The judge summarised the position at the end of the lease (25th December 1962) in those words: "He wanted to make it (No. 37, Ifield Road) his home, and did in fact make I this home later on. On the eve of Christmas Day the position was that the man was pigging it alone in Ifield Road with his wife helping him to clean it, but she was not sleeping there".
The freeholders now claim possession of No. 37, Ifield Road. Mr Byrne claims the protection of the Landlord and Tenant Act 1954. The judge decided against him. He said that: "Mr Byrne was resorting to a technical move in order to take the benefit of the Act, but in this case he cannot, I think, claim any statutory protection"
If this case had come up for decision in the year 1950 Mr Byrne would clearly have no protection at all. Nor would any of the sub-tenants bo protected from eviction. The reason was because the lease held by Mr Byrne was a long lease at a low rent. The rent waa less than two-thirds of the rateable value. In consequence, under section 12 sub-section 12 (7) of the 1920 Act, the house was outside the Act. The leaseholder himself was not protected as against the freeholder. When the long lease came to an end, he had to go. But not only was the leaseholder not protected. The sub-tenants were not protected even though theypaid a full rent; see Knlghtsbrldge Estates Trust v. Deeley (1950 volume 2 King's Bench Division, page 228). Very soon after that case the legislature made temporary provision to remedy it, and in 1954 permanent provision was made by the Landlord and Tenant Act 1954, which we have here to consider.
The principle underlying the 1954 Act Is this: It brings these long leases at a low rent within the Rent Acts. At the end of the long lease the leaseholder, if he is in occupation of the house, is entitled to remain in possession as a statutory tenant. He is given the self-same security of tenure as any other statutory tenant except that the freeholder can turn hira out, not only on the familiar grounds, such as non-payment of rent, but also if the landlord wants to demolish the house for redovelopment (see section 12 subsection (1). There are elaborate provisions made for seeing that the tenant pays a reasonable rent and for the doing of repairs; (see sections 7 and 8). The 1954 Act also protects the sub-tenants who are lawfully there. Their interest no longer ends with the long lease. If the leaseholder remains in occupation himself as a statutory tenant, they continue to hold their rooms from him. If he is not in occupation himself, they become direct tenants of the freeholder, (see section 15). It is to be noticed that in 1957, when the legislature freed many houses from restriction, these houses let on long leases at a low rent were still kept under control. The former limits of rateable value continue to apply to them so as to give protection to houses of considerable value, (see section 11, subsection (4) of the 1957 Act). Long leaseholders are therefore protected to a greater extent than the tenants of other houses.
There is this to be said however: In order that the 1954 Act should operate and protect the leaseholder, there is a "qualifying condition" to be fulfilled. It is set out in section 2 subsection (1) of the Act, and comes to...
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