Levermore v Jobey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS |
| Judgment Date | 01 May 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0501-2 |
| Date | 01 May 1956 |
| Court | Court of Appeal |
In the Matter of the Increase of Rent and Mortgage Interest Restriction Acts 1920 - 1939
[1956] EWCA Civ J0501-2
Lord Justice Jenkins
Lord Justice Hodson and
Mr. Justice Danckwerts
In The Supreme Court of Judicature
Court of Appeal
MR JOHN WILMERS (instructed by Messrs. Kanneth Brown, Baker, Baker) appeared on behalf of the Appellant.
MR ROGER WILLS (Instructed by Messrs. James & Charles Dodd) appeared on behalf of the Respondents.
We need not trouble you, Mr Wills. This is an appeal by the landlord of premises known as 224, Algerman Road, Ladywell, in the parish of Lawisham, from a decision of the learned County Court Judge to the effect that these premises were within the protection of the Rent Restriction Acts. The matter arose in the County Court as an application by the tenants, now the respondents, to fix the standard rent of the premises on the footing that they were premises within such protection.
The promises were let on the 7th December, 1956, by the landlord, Florance Eliza Jobey, to a Mrs Alice Charlotte Brown for a term of fourteen years from the 25th December, 1. That lease expired in 1949 when a new lease, dated 16th November, 1949 was granted between the same parties. The terms of the two leases, the residue of the latter of which became vested in the present tenants, are identical for the purposes of the present case, and we have been supplied with a full copy of the earlier lease.
The question at issue is whether these premises are let as a separate dwelling, for it is only on that footing that the protection of the Acts can be claimed for them. I should, I think, refer briefly to the relevant provisions. The Act of 1939, by subsection 1 of section 3 provides: "Without prejudice to the operation of the two preceeding sections in relation to any dwelling-house to which the principal Acts applied immediately before the commencement of this Act, the principal Acts, as amended by the last preceding section, shall, subject to the provisions of this section, apply to every other dwelling-house of which the ratable value on the appropriate day did not exceed the maxima therein not out, "and in relation to any such dwelling-house as aforesaid, not being a dwelling-house to which the principal Acts applied immediately before the commencement of this Act, the provisions of the Rent and Mortgage Interest Restrictions Acts, 1920 to 1935, set outin the first column of the First Schedule to this Act shall have effect as if there were made in those provisions the modifications respectively prescribed by that schedule."
Then in section 7(1)provided: "In this Act the following expressions have the meanings hereby respectively assigned to the, that is to say" and then certain expressions are set out and the subsection concludes: "and other expressions have the same meanings as in the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933." One should also notice subsection 3 of section 3 which says: "Subject to the provisions of paragraph (a) of the last preceding subsection" - which relates to "any dwelling-house consisting of, or comprising, premises licensed for the sale of intoxicating liquor for consumption on the premises", "the application of the principal Acts, by virtue of this section, to any dwelling-house shall not be excluded by reason only that part of the premises is used as a shopl or office or for business, trade or professional purposes," the rest of the subsection being, I think, immaterial.
Section 17 6(1) of the Act of 19contains certain definitions, including this definition of dwelling-house: "'Dwelling-house' has the same meaning as in the principal Acts, that is to say, a house let as a separate dwelling or a part of a house being a part so let". Those, I think, are all the provisions to which I need refer, and I will not go back to the provisions of the Act of 19.
The question at issue is whether 284, Algerman Road, is let as a separate dwelling within the meaning of the Act. The learned Judge held that it was, with the consequence that the Act applied to it. The landlord now appeals to this Court and contends that the premises are excluded from the protection of the Act because they were not let as a separate dwelling or indeed as a dwelling at all, but were let wholly and exclusively for business purposes and consequently the Act does not apply to them.
This question has been many times before this Court, and it has been laid down that the first thing that must be looked at in considering it in any particular case is the formal lease or tenancy agreement, if any, by which the letting was created. If from the provisions of that lease or tenancy agreement it appears that the premises were let upon terms excluding their use for residential purposes, then the matter is concluded against the tenant notwithstanding the use to which the premises may in fact have been put unless on the facts it can be shown that by the common consent of the tenant and the landlord the provision excluding use for residential purposes were relaxed, so as to create a new or modified letting of the premises which as modified constitutes a letting of them for residential purposes. If there is no formal lease or tenancy agreement, or any document there may be is silent on the question of user, then it is legitimate to look at what was actually done, to look at the purposes for which the premises were in fact used with the assent of the landlord, in order to ascertain whether they were let as a separate dwelling or were let for business purposes.
The first thing to be done, therefore, in the present case is sto look at the terms of the lease. For this purpose I am reading from the earlier lease, that is to say, the lease of the 7th December, 1938. That is made between the parties I have already mentioned, and it contains a demise to the lessee of "all that building or tenament shop and premises known as No.294 Algerman Road Ladyvell in the parish of Lawisham" with certain exceptions and reservations which are not material "to hold the same unto the lessee from the 25th day of December, 1938, for the term of fourteen years yielding and paying therefor during the said term the clear yearly rent of £76 by equeal quarterly payments on the usual quarter days and the last payment to be made in advance two calander months before the expiration of the said term". Then there isprovision for payment of the cost of insurances as additional rent, and then there are a number of tenant's covenants. We were referred to certain covenants as to painting the premises, but I do not think that anything turns upon them as they would be equally appropriate both to business premises and to residential premises. Then the important covenant is (ii), which is in these terms: "And also will not do or suffer anything to be done or take place or remain on the demised premises which may render an increased or extra premium payable for the insurance of the premises against fire as hereafter provided or which may make void or voidable any policy for such insurance and will not use or permit to be used the demised premises or any part thereof for any illegal or immoral purpose but will use any occupy the demised premises and permit them to be used and occupied as and for the trades or business of a news vendor stationer bookseller toy merchant and tobocconist only." Tenant's covenant (13) is a covenant that the tenant "will not assign transfer underlet or part with the possession of the demised premises or any part thereof without the previous written licence in that behalf of the lessor but so that such licence shall not be withheld to an assignment or underletting of the demised premises to a respectable and responsible person." Those are the relevant provisions of the lease of 1935 which, as I have said, were reproduced in the lease of 1949. I should say that the rent in the lease of 1949 was increased from £75 to £100.
For the purpose of construing the lease and in particular tenant's covenant (11) it is permissible for the Court, and indeed obligatory on the Court, to pay regard to the surrounding circumstances with reference to which the lease was entered into, and in particular to look at the nature of the subject matter of the letting. As to that I may quote from the judgment of the learned Judge. As described the premises in this way:
"The house has three floors and the accommodation was described by the tenant (it uncontradicted evidence) as follows: On the ground level at the front, is a shop; behind that is a living room, a dining room and a small kitchen. On the first floor is the main sitting room and a bedroom. Between these two floors, on a half landing there is a bedroom, a bathroom and a W.C. On the top floor there are two small bedrooms. The main door leads from the street into the shop and through the shop access can be had to the fllors above. There is also a separate door from the street to the upper floors." That is a description of premises of a very familiar kind, consisting of a shop fronting the street with living accommodation behind and above it. Such being the nature of the premisese with which the lease was dealing I pass to the question of construction.
I observe first of all that the parcels are described as "all that building or tenement shop and premises". That indicates that the shop is regarded as something distinct from the rest of the building. I think I may also note the expression "tenement". That is an expression which is sometimes used to mean a house and in particular a dwelling-house. That, however, is not its strictly correct meaning in law, its correct meaning extending as I understand, to every kind of hereditament, both corporeal and...
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...All the earlier authorities have been very recently reviewed in this Court by Lord Justice Jenkins in ( Levermore v. Jobey 1956, 2 All England Reports, page 362) and we do not propose to refer to them again but will content ourselves with one sentence from Mr Megarry's book on the Rent Acts......
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