Horford Investments Ltd v Lambert
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE SCARMAN |
| Judgment Date | 18 October 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1018-2 |
| Date | 18 October 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1018-2
Lord Justice Russell,
Lord Justice Scarman and
Mr. Justice Plowman
In The Supreme Court of Judicature
Court of Appeal
(On appeal from West London County Court,
Judge McDonnell)
MR. D. WOOD (instructed by Messrs. Tatton, Gaskell & Tatton) appeared on behalf of the Appellant.
MR. R. BERNSTEIN, Q. C. and MISS CAROLINE ALTON (for Mr. J. WELLINGS) (instructed by Messrs. Kaufman, Kramer & Shebson) appeared on behalf of the Respondents.
These appeals from his honour Judge McDonnell relate to a claim by the lessee appellant to be entitled to pay under leases of two adjoining house, Nos. 35 and 37, Addison Gardens, Hammersmith, no more than the fair rents fixed by the Rent Officer (or Rent Assessment Committee on appeal) such rents being considerably less than the rents reserved by the leases.
The lease of No.35 to the appellant was created in July, 1964, for a term expiring on 29th September, 1984, at rents for three successive periods of £1,298, £1,550 and £1,930. The registered fair rent is £700. The lease of No.37 to the defendant was in March, 1966, for 21 years from 29th September, 1964, (possibly a failed attempt to make both leases co-terminous) at rents of £1,300, rising to £1,600 and to £2,000. The registered fair rent is £600 per annum.
In each case the registration of the fair rent was ineffective unless it is shown that the appellant's tenancy was a protected tenancy under what is now Section 1 of the Rent Act 1963. If however it was a protected tenancy the lessor can exact no more than the fair rent as registered from time to time. The substantial difference make the question one of considerable financial importance to the parties. The learned judge in a full and careful judgment concluded that neither tenancy was a protected tenancy. A protected tenancy is defined by the section as "A tenancy under which a dwellinghouse (which may be a house or part of a house) is let as a separate dwelling" subject to certain qualifications not now material. Two questions have been ventilated before us, the house in each case being constructed and designed and required to beused for multiple occupation in single rooms or flats, the lessee never having resided in any part of either house. The first question is whether the lessee's tenancy is on under which the house "is let as a separate dwelling": and hereunder it was common ground that the word "separate" was not relevant since it was directed only to exclude cases in which the letting of a dwelling involved a sharing with another of an essential feature of a dwelling such as a kitchen; was the house therefore let as "a … dwelling" having regard to the fact that it was constructed so as to consist of a number of units of habitation and to the manifest intention that it should be used as several sublet dwellings? The second question is whether in such cases in general, and in these cases in particular, in truth the letting was for business purposes and for that reason outside the protection of the Rent Acts as a protected tenancy.
I should add here that fair rents have been fixed in respect of the various flats or rooms in favour of sub-tenants, their tenancies being undoubtedly protected tenancies.
No oral evidence was called at the trial. It was agreed that the defendant had never resided in either house and that in each case the premises comprised a 19th Century purpose-built dwellinghouse which at a date not later than the beginning of the lessee's tenancy (as to No.35) was used as to the ground and upper floors for the purpose of letting off in rooms and as to the basement for the purpose of a separate and self-contained flat, and (as to No.37) had been converted into five self-contained flats: and that user in this manner had continued ever since. By the lease of No. 35 the tenantcovenanted that he "will not use or permit to be used the said premises or any part thereof for the purpose of any trade or business nor for any purpose other than residential in multiple occupation". He further covenanted not to assign or sublet or part with possession of the whole without consent: and not to sublet or part with possession of any part for a term longer than 6 months without consent. By the lease of No.37 the lessee covenanted that he "will not use or permit to be used the said premises or any part thereof for the purposes of any trade or business other than as a residential house in multiple occupation." The wording is slightly different from that in the No.35 lease: I do not, however, regard the phrase in the No. 37 lease as giving any indication that the parties considered user as a residential house in multiple occupation by the normal process of sub-letting parts to be a user of the premises for the purposes of a trade or business: I take the word "other" as equivalent to "or otherwise", and the language in both cases them points away from any understanding that the specific user referred to would be a user of the premises for the purposes of any trade or business. In the case of No. 37 there was one covenant only as to dispositions by the lessee: not to assign transfer underlet or part with possession of the demised premises or any part thereof without consent.
As to the first question, the point appears to me to be this: whether the phrase "a tenancy under which a dwellinghouse (which may be a house or part of a house) is let as a separate dwelling" embraces a case in which the tenancy includes when created a residential building containing more than one of what might be conveniently described as units of habitation. The question appears ultimately to be whether by force of the Interpretation Act "is let is a … dwelling" is to be construed as "is let as a …. dwelling or dwellings".
On this point it seems to me immaterial that the houses in question are physically adapted for a great number of units of habitation: the question really is the same as would arise for solution when on the granting of the tenancy of a house it consisted of two separate and self-contained flats.
It is as well at this point to bear in mind that we are not concerned here with protection against eviction after a contractual tenancy has been determined, where the question of occupation and protection of that occupation arises.
In Langford Property v. Goldrich, in this court, (1949) 1 K. B. 511, two flats in the same building (which had in fact been previously separately let) were let to a tenant for use by him and his family as one home. The flats were not directly connected and each was a self-contained flat. The whole argument proceeded on the assumption that under the comparable statutory phrase ("a house let as a separate dwelling or a part of a house being a part so let …") prima facie would not include a case when the letting comprised more than one unit of habitation. This was, as I understand it, accepted by the Court, which decided that on the particular facts of the case it was a letting of one dwellinghouse only, that is to say, for use as one unit of habitation. Lord Justice Somervell accepted the applicability of the Interpretation Act to "a house" but I think implicitly rejected its applicability to "let as a … dwelling".
This approach was followed in Whitty v. Scott-Russell in this court (1950) 2 KB. 32. There there was a tenancy of a residence and cottage joined to it but without internal communication. This court was able to find that there was a letting of a single dwellinghouse primarily because of acovenant by the tenant to use the whole premises as "a private dwellinghouse only". In both those cases it would have been a simple road to the same conclusion if "let as a … dwelling" could be construed as "let as a … dwelling or dwellings". In the judgment of the Court in the latter case this was said at page 30: "If the Interpretation Act alone were concerned, this reasoning would be open to the comment that, if the inclusion of the plural in the singular permitted us to road 'house' as including houses, it would equally permit (or perhaps require) us to read 'let as a separate dwelling' as including 'let as two separate dwellings'. An impartial application of the Interpretation Act might lead to odd results."
In R. and P. Properties Limited v. Baldwin in this court (1939) 1 K. B. 461 Lord Justice Goddard said at page 470: "If they were let as two dwellings it follows that they were not let as a separate dwelling". But I do not think that he had point in mind: he was referring to two separate lettings of two separate flats.
In Lower v. Porter in this court (1956) 1 Q. B. 325 the question was whether a premium on assignment of a tenancy was illegal. The letting was of a house not then divided but intended to be and soon after converted by the tenant into two self-contained flats. It was argued that the date of the assignment was the material date, and that it was then outside protection as being a tenancy not of a single dwellinghouse but of two: it was held that the date of the tenancy was the material date, when it was a single dwellinghouse, and so the premium was illegal. Again what I have referred to as the simple road was not followed: though there is some indication at page 30 that Lord Justice Morris thought that at the dateof the assignment it was still a dwellinghouse.
In Theis v. Muir (1951) Estates Gazette Di est 292 Judge Dale held that leasehold premises comprising two self-contained flats and a shop were not at the date of the assignment of the lease (for which a premium was paid) "let as a separate dwelling", presumably on the same basis that the phrase does not include a letting of a plurality of units of habitation.
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