Joan Russell (Applicant v Eric Edmond Booker (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN,LORD JUSTICE SLADE |
| Judgment Date | 14 May 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0514-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0190 |
| Date | 14 May 1982 |
[1982] EWCA Civ J0514-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WELLS COUNTY COURT
(MR. VIVIAN PRICE Q.C., Sitting as
a Deputy Circuit Judge)
Royal Courts of Justice
Lord Justice Cumming-Bruce
(not Present At Reading of Judgment)
Lord Justice Dunn
and
Lord Justice Slade
82/0190
No. of matter: 81 00899
In The Matter of The Rent Act 1977
MR. K. MAITLAND DAVIES (instructed by Messrs. Harris & Harris, Solicitors, Glastonbury, BA6 9DX) appeared on behalf of the Applicant (Appellant).
MR. GEORGE NEWSOM (instructed by Messrs. Austin & Bath, Solicitors, Glastonbury, BA6 3DL) appeared on behalf of the Respondent (Respondent).
Lord Justice Cumming-Bruce is unable to be here this morning; Lord Justice Slade will read the judgment of the court, with which both Lord Justice Cumming-Bruce and I agree.
This is an appeal from an order of Mr. Vivian Price, Q.C., who was sitting as a deputy circuit judge in the Wells County Court. By this order, made on 2nd December 1981, he dismissed an application to that court by the appellant, Miss Joan Russell. She had applied to it under section 141 of the Rent Act 1977, asking it to determine whether the tenancy of certain premises known as Gladstone House, West Pennard, Glastonbury, Somerset (in this judgment referred to as "the property") was a protected or alternatively a statutory tenancy. The respondent to the appeal, who was also the respondent to her application, is Mr. E.E. Booker.
On 18th April 1947 a written tenancy agreement relating to the property ("the 1947 agreement") was entered into between Miss Ethel Mary Davis, who was described therein as "the landlord", and Mr. Herbert Samuel Russell, who was described as "the tenant". The operative part of the 1947 agreement began with the following words:
"WHEREBY the Landlord AGREES to let and the Tenant AGREES to take ALL THOSE pieces or parcels of land situate in the Parish of West Pennard in the County of Somerset containing Three acres and Twenty two perches or thereabouts and more particularly described in the Schedule hereto TOGETHER with the Dwellinghouse and buildings erected thereon or on some part thereof and known as 'Gladstone House' and for the purpose of identification only shown in the Plan drawn hereon and thereon coloured Pink (hereinafter called 'the premises') EXCEPT AND RESERVING unto the Landlord all minerals stone trees timber and underwood Subject to the following terms and conditions:—
1. The Tenancy shall commence on the Twenty-fifth day of March One thousand nine hundred and forty seven and shall continue from year to year but be determinable by either party giving to the other not less than twelve months notice to quit such notice to be served in accordance with the provisions of the Agricultural Holdings Act 1923".
Clause 1 then contained a proviso for re-entry in the event of non-payment of rent or non-observance of any of the tenant's obligations and in certain other contingencies. Clause 2 provided for the payment of a rent of £60 a year payable on the usual quarter days. by clause 3 the landlord agreed to keep the main wall, timbers and roof of the house and buildings in repair. Clause 4 read as follows:
"The Tenant AGREES to observe the following stipulations:
(1) TO PAY the Rent hereby reserved in manner aforesaid and in addition to pay all existing and future rates and taxes assessments and outgoings whatsoever except Landlords Property Tax Land Tax and Tithe Redemption Annuity
(2) SUBJECT as aforesaid to keep all buildings and erections on the premises in good and tenantable repair and subject to the Landlord providing timber in the rough for gates to keep in repair all gates stiles hedges walls and fences in and upon the premises to keep the hedges brushed and trimmed and to lay such as require to be done at proper seasons of the year
(3) TO KEEP the ditches and gutters in and upon the premises cleaned out and the drains sewers and watercourses open and free from obstruction and in working order
(4) TO DESTROY moles and other vermin level mole-hills and prevent docks thistles nettles and other noxious weeds running to seed in and upon the premises
(5) TO PRESERVE from injury all trees and underwood in and upon the premises
(6) TO RESIDE on the premises and not to part with the possession of any part thereof
(7) NOT TO remove or sell off from the premises any hay straw roots or fodder of any sort
(8) TO FARM manage cultivate and manure the premises in a good and husbandlike manner in accordance with the most approved methods of husbandry in the district and so as not to injure or deteriorate the same and to keep the whole of the premises in good heart and condition and as to the arable land to keep it clean and free from weeds
(9) TO YIELD up at the determination of the Tenancy every part of the premises in such a state of repair and cultivation as shall be in strict accordance with the Tenant's stipulations herein contained
(10) TO PRESERVE prune and manage the fruit trees in the Orchard on the premises and not to cut or remove any such trees except such as shall be dead worn out unfruitful or damaged and the removal of which would benefit the premises and from time to time to replace such as shall die become worn out or unfruitful by others of an equally valuable good and suitable kind".
Clause 5 conferred on the landlord certain rights to store furniture in two upstairs rooms of the house. Clause 6 contained a provision for quiet enjoyment by the tenant. The Schedule, containing a more particular description of the property, read as follows:
| "No. on West Pennard Tithe Map | Description | State of Cultivation | Quantity |
| A. r. p. | |||
| 447 | Dwellinghouse, outbuildings and Garden | — | — 1 22 |
| 450 | Orchard and Nursery Orchard etc. | — 2 — | |
| 451 | Orchard 2113) Less sold) for Wesleyan 13) School) | Orchard | 2 1 — |
| A: | 3 — 22" |
The schedule to the 1947 agreement thus shows that, at the time when the tenancy began, the land contained in it, other than the dwellinghouse, outbuildings and garden, was cultivated as an orchard and occupied 2 acres 3 roods.
There is in evidence a "Record of Condition" showing the state of the land at this time. Under the heading "Fruit Trees", this record gave the following description:
"There are 85 profitable apple and pear trees in the orchard, these trees have not been pruned for some years".
After the execution of the 1947 agreement Mr. Herbert Samuel Russell' ("Mr. Russell") and his daughter, the appellant, moved into the property. The learned deputy judge did not make many specific findings of fact in relation to its subsequent use beyond saying:
"The land was let originally as orchard land but it was used thereafter as pasture land for a cow and a calf. Chickens were let out from time to time. I was told it was not used only for these purposes but also for the purposes of a domestic nature connected with the lives of those living at the dwellinghouse, their visitors, friends and children".
However, there do not appear to have been many disputed matters of fact. The learned deputy judge only heard evidence from the appellant herself and brief corroborative evidence from two witnesses called on her behalf. The respondent called no evidence.
The following further facts appear from the judge's notes of evidence and the documentary evidence. For many years before 1973, when he discontinued it, Mr. Russell ran a small bed and breakfast business on the property. He seems to have kept careful accounts of all his business activities on the property. There are in evidence extracts from his income tax returns covering most of the years 1950 to 1980. These appear to show that, throughout the period, he and the members of his household were enjoying benefits in kind from his cow and chickens, in the form of poultry and eggs and milk and dairy produce for family consumption. His bed and breakfast business derived similar benefits in kind so long as it continued. In most years up to his death, he also received small sums from the sale of eggs and of livestock in the form of calves, heifers or steers. He kept a cow which was served and produced calves from time to time. In most years up to 1973, but not later, he also received small sums from the sale of apples.
However, Mr. Russell's annual receipts from all these various sources were never more than very modest. In the case of apples they only exceeded £30 on two occasions and ceased altogether after 1973. In the case of eggs they never exceeded £55. Over the period for ten years before his death Mr. Russell never kept more than about a dozen hens and the occasional sale of livestock did little more than cover the expenses of feeding and caring for the livestock. Annual receipts from the catering business were correspondingly modest. Up to 1965 they averaged about £200. For the next eight years, till the business ceased in 1973, they never exceeded £60.
In 1949 the reversion in the property became vested in Miss Eleanor Davis. She was the freeholder at the time of her death in 1980 and the reversion is now vested in the respondent, Mr. Booker, as her personal representative.
The appellant continuously resided with her father in the property from April 1947 until his death, which occurred on 18th November 1980.
On 27th January 1981, the appellant applied to the Agricultural Land Tribunal for a direction entitling her to a tenancy of the property under Part II of the Agriculture (Miscellaneous...
To continue reading
Request your trial