Maunsell v Olins

JurisdictionEngland & Wales
Judgment Date21 February 1974
Judgment citation (vLex)[1974] EWCA Civ J0221-2
Date21 February 1974
CourtCourt of Appeal (Civil Division)

[1974] EWCA Civ J0221-2

In The Supreme Court of Judicature

Court of Appeal

(Appeal of Plaintiff from Order of His Honour Judge Stansfield, Bldeford County Court, dated July 26, 1973.)


Lord Justice Edmumd Davies,

Lord Justice Cairns and

Lord Justice Lawton.

Nesta Gwendoline Maunsell
(Appellant — Plaintiff)
Ilmar Olins (male) and Mrs. Olins
(Respondents — Defendants)

MR D. WOOD, (instructed by Messrs. Macfarlanes, Agents for Messrs. Seldon, Ward & Nuttal of Bideford) appeared on behalf of the Appellant (Plaintiff).

MR S. TUCKEY, (instructed by Messrs. T.A. Go man & Wright of Bldeford) appeared on behalf of the Respondents (Defendants).


LORD JUSTICE EDMUND DAVIES: I will ask Lord Justice Cairns to deliver the first judgment.


This is an appeal from a judgment of Judge Stansfield delivered at the Bideford County Court on the 26th July of last year. He dismissed the plaintiff's claim for possession of a cottage and mesne profits, holding that the defendants were entitled to the protection of the Rent Act 1968. The issue arose under Section 18 (5) of that Act, and I think it is convenient to read that subsection at the outset. It provides: "Where a dwelling-house — (a) forms part of premises which have been let as a whole on a superior letting but do not constitute a dwelling-house let on a protected tenancy; and (b) is itself let on a protected tenancy, this Act shall apply in relation to the dwelling-house as if, in lieu of the superior letting, there had been separate premises, for the like purposes as under the superior letting, and at rents equal to the just proportion of the rent under the superior letting."


It was agreed in the court below — and neither party has sought to resile from these agreements — that the cottage which was the subject-matter of the action stands on land which forms part of a farm which was the subject of a superior letting, that letting not being a protected letting, and that the cottage itself was sub-let to the defendants on a letting which was a protected letting as between those sub-tenants and the tenant of the farm who sub-let to them. The whole issue before the learned county court judge and in this court has been whether that cottage is "part of the premises" within the meaning of Section 18 (5) of the Act.


The facts can be quite shortly stated, because they are not in any way in dispute. The plaintiff is the freeholder ofa farm of 106 acres called Hallsannery Farm, which includes a farmhouse, two cottages and other farm buildings. The cottage the subject-matter of the action is one of those two and is attached to the farmhouse. The head tenant of the farm for many years was a Mr. Beer. On the 30th April, 1963, the tenancy agreement between him and the plaintiff was reduced to writing. It provided for a tenancy from year to year from Lady Day, and there was a provision that the tenant was not to sublet except for the cottages.


The cottage in question was sub-let by Mr. Beer to the defendant in 1959. It was an unfurnished letting. The defendant was not then working on the farm, but worked somewhere quite separately. But, as I have already said, it was common ground that the tenancy as between the defendant and Mr. Beer was a protected tenancy. The tenancy which Mr. Beer held from the plaintiff, on the other hand, was protected by the Agricultural Holdings Act 1948, and the Rent Acts did not apply thereto. On the 15th March, 1971, Mr. Beer died. On the 26th April, 1971, notice to quit was served by the plaintiff on Mr. Beer's estate, but as a full year's notice expiring on the 25th March was required, the notice had to be for the 25th March, 1973, and at that date Mr. Beer's tenancy came to an end.


The plaintiff's case was that the sub-tenancy of the defendant died with the tenancy of Mr. Beer. The defendant in answer to the plaintiff's claim relied, and relied solely, on Section 18 (5) of the Rent Act 1968. That subsection has a history to which it is convenient to refer. Under the earlier Rent Acts, when the tenancy of a house was protected, and when part of that house was sub-let, the sub-tenant was protected as against the freeholder. But in the case of Cow -v- Casey (1949 1 K.B. p. 474) it was held that where the superior letting was not a protected one, the sub-tenancy was not protected. It was principally in consequence of that decision that in the Housing Repairs and Rent Act 1954 a section was introduced, Section 4 of that Act, which provided protection in terms which appear to me to be in substance identical with Section 18 (5) of the Rent Act 1968.


Mr. Tuckey, on behalf of the defendants, has sought to persuade this court that there is a difference of meaning between the two enactments, because Section 41 of the 1954 Act refers to "a dwelling-house to which the Act of 1920 applies (which) forms part of premises, not being such a dwelling-house, which have been let as a whole on a superior letting", whereas the 1968 Act refers to "a dwelling-house (which) forms part of premises which have been let as a whole on a superior letting, but do not constitute a dwelling-house let on a protected tenancy." I can only say that, to my mind, the difference in wording convoys no difference of meaning. It is not to be expected that it would, having regard to the fact that the 1968 Act was a consolidating Act.


That is a point of some importance, because the main authority that has to be considered in this case, Hobhouse -v- Wall (1963 2 Q.B. p. 124), was a case which was decided under Section 41 of the Act of 1954. In that case, as appears from the headnote, "The plaintiffs were the owners of a large farm which they let to C. At all material times a cottage on the farm had been sub-let by C.s predecessors and by C. to the defendant, who was not employed on the farm. C. determined the defendant's contractual tenancy in 1959 by a notice to quitand thereafter the defendant remained In possession of the cottage as a statutory tenant vis-a-vis C. under the Rent Restriction Acts. In 1961, C. surrendered his tenancy to the plaintiffs who let the farm two months later to H. No rent was accepted from the defendant by the plaintiffs or by H. after the surrender of C's tenancy, and they treated the defendant as a trespasser from the date of the surrender.


On a claim for possession of the cottage by the plaintiffs, to which they joined H. as co-plaintiff, the defendant relied on the protection given by Section 41 of the Housing Repairs and Rents Act, 1954:-


Held, that, on its true construction, section 41 of the Housing Repairs and Rents Act, 1954, contemplated that the superior letting should be a letting of a residential dwelling-house, and a sub-letting was not within the section unless it formed part of 'premises' in the sense of something in the nature of buildings comprised In the superior letting. The section, therefore, did not apply to the sub-letting of a cottage on a large farm and, accordingly, the plaintiffs' claim for possession succeeded."


I have read that holding as it appears in the headnot a, but, as will appear from a passage in the leading judgment, which I shall read, that is not quite accurate, in so far as it refers to the superior letting being a letting of a residential dwelling-house.


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