Parsons v Trustees of Henry Smith's Charity
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,THE MASTER OF THE ROLLS |
| Judgment Date | 10 May 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0510-1 |
| Date | 10 May 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0510-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by applicant from order of His Honour judge Baxter at West London County Court on 19th July, 1972.
The Master of The Rolls (Lord Denning) and
Lord Justice Stephenson.
In the Matter of the Leasehold Report Act 1967 and in the Matter of Premises known as Number 24 and 25 Cranley Mews, South Kensington in Greator London.
Mr. JOHN WILMERS, Q. C. and Mr. MICHAEL RICH (instructed by Messrs Gillhams) appeared on behalf of the Appellant Applicant.
Mr. MARTIN NOURSE, Q. C. Mr. ASHLEY BRAMALL and Mr. JOHN HODGSON (instructed by Messrs. Warrens) appeared on behalf of the Respondents.
THE MASTSH OF THE ROLLS: In Cranley Mews there is a building which comprises Nos. 24, 25 and 26 Cranley Mews. These used to be coach-houses with stables over. Afterwards they were converted to garages with dwelling rooms over. Now they have been converted into two good dwelling-houses, each with its own garage. The conversion has resulted in a part of one of the dwelling-houses overhanging the garage of the other. This has given rise to a nice legal problem. But I must first give the details.
As you look at the building, on the left of it, there is No. 26, which is a separate self-contained dwelling-house with its entrance door in the middle and no garage there. On the right of it there are Nos. 25 and 24, which have been converted into one large house with an entrance door in the middle. On the left of that entrance door there are two garages. The one immediately on the left of the door is the garage for the house itself. The one further on the left is a lock-up garage used by No. 26. The rooms over the lock-up garage are part of the dwelling-house comprised of Nos. 24, and. 25. It is a little difficult to follow when one puts it in words: so here is a little diagram to go beside my judgment.
To summarise: No. 26 is a separate self-contained dwelling-house. It is divided vertically from No. 25. There is no garage in No. 26 itself. But there is a lock-up garage next door in No. 25. This lock-up garage is let to the tenant of No. 26 andused by him.
No. 26 is divided vertically from its neighbour, No. 25. But two of the upper rooms of No. 25 overhang the lock-up garage of which I have spoken. There is a fire-escape from these upper rooms down into the lock-up garage, and thus out into the street.
The whole buildings Nos. 24, 25 and 26 are let to Mr. Parsons, Senior, on a long lease at a low rent. He sublets No. 26 to his son, and he also sublets to his son the lock-up garage in No. 25. (It is called No. 25 Cranley Mews south.) But Mr. Parsons occupies himself the whole of Nos. 24 and 25 except the look-up garage. He has occupied it for some sixteen years. He has his own garage which is called No. 25 Cranley Mews North.
Mr. Parsons, Senior, now claims to be entitled to buy the freehold of Nos. 24 and 25 which he occupies, except the lockup garage.
The first question is: what parts of the building constitute a "house" within the Act? I will take the parts in order:-
(I) The building which comprises the whole of Nos. 24, 25 and 26 Cranley Mews is not itself a "house". That whole building is divided vertically. The house No. 26 is separated vertically from Nos. 25 and 24. It is plain that No. 26 is itself a unit which is a "house": see section 2(1)(b) of the Act.
(ii) The building which comprises the whole of Nos. 25 and 24 is, I think, a "house". The two Nos. 25 and 24 have been adapted for living in and may reasonably be called a "house": see section 2(1). It is one "house" with its own garage(25 Cranley Mews North) and a look-up garage sublet to the son (25 Cranley Mews South). The tenant, Mr. Parsons, Senior, occupies that house as his residence, although he occupies it in part only and sublets the look-up garage, see section 1(2)(a): Harris v. Swick Securities Limited. (1969) 1 W. L. R.. 1604: Lake v. Bennett (1970) 1 Q. B. 663.
(iii) The portion which Mr. Parsons occupies and comprises Nos. 25 and 24 including the overhang, but excludes the garage underneath, is not I think by itself to be treated as a "house". It is excluded by section 2(2) of the Act: because the overhang is a material part which lies above the garage. I think the Judge was quite right in saying that a "material" part means an important part. He visited the premises. He found that the overhang was a material part. He did not misdirect himself. We must accept his finding.
The next question is: what is the appropriate reateable value? In order to come within the act, the ratable value of the house and premises on the appropriate day must not be more than £400.
The rateable values of the various properties are given in the rate-book as follows:-
The portion sublet to the Mews son and occupied by him. (No. 26 Cranley ((the separate (dwelling-house) £347 ((No. 25 Cranley Mews (South (the lock-up garage (sublet with No. 26 £38 £385
| No. 26 Cranley Mews (the seperate dwelling-house) | £347 |
| No. 25 Cranley Mews South (the lock-up garage sublet with No. 26) | £ |
| £385 |
The portion occupied by the father, and occupied by him
| No. 24 and 25 first floor, including the portion overhanging the lock-up garage No. 25 Cranley Mews South | £226 |
| No. 25 Cranley Mews North (a garage) | £ 54 |
| No. 25 Cranley Mews North | £ 54 |
| and | |
| No. 24 Cranley Mews South | £ 54 |
| (converted into a dwelling and occupied with the first floor) | £338 |
It was submitted that, in order to get the rateable value, we should look at the whole of the premises comprised in the leasehold. That is, Nos. 26, 25 and 24 Cranley Mews. This submission was supported by a reference to the Rent Acts where the rateable value to be taken is the rateable value of the whole of the premises comprised in the contract of tenancy, see Amphlett v. Dorrell (1949) 1 K. B. page 276; and Megarry on the Rent Acts, 10th Edition, page 162. But I think those cases do not apply to the Leasehold Reform Act, 1967. Section 2(4) expressly deals with the position. As I read that section, when a leasehold comprises two or more houses in a terrace, but the tenant only occupies one of these himself, he is bound to buy the whole of the terrace if the landlord gives him written notice, objecting to a severance. But, if the landlord gives no such notice, the tenant is only entitled to buy the freehold of the house which he himself occupies, and not the freehold of the others. In such a case, for the purpose of ascertaining the rent (to see if it is a "low rent") it is necessary to apportion the rent of the whole so as to get the proper amount appropriate to his own house - see section 4(6). Likewise, for the purpose of rateable value, I think we must look at the house and premises which he himself occupies, and not at the other houses.
Similarly with section 2(5). It applies to a case where the leasehold comprises a house with a room on the top floor or a shop below which is connected by connecting-doors to the next door house, as in Peck v. Anicar Properties Limited. (1971) 1 A. E. R. 517: ( Wolf v. Crutchley 1971 1 W. L. R. 99: and the lease includes some part of the next-door house. The tenant is. not entitled to buy up those parts of the next-door house if the landlord gives written notice objecting to the severance, and it involves no great hardship to the tenant.
So I come back to the essential question: What is the "house and premises" to be considered here? I think it is the whole building comprising Nos. 25 and 24 Cranley Mews. That is structurally one house divided vertically from No. 26, It is occupied by Mr. Parsons as his residence and has been so occupied for more than five years. The Act applies to that whole house, even though he sublets the lock-up garage. The rateable value of that whole house is £388, plus £38: that is, £426. That is more than £400. It is outside the Act.
The only way in which Mr. Parsons could overcome this result is by treating the actual portion that he occupies (without the lock-up garage) as a "house". In that case the rateable value would be £388, and within the Act. But I think that is excluded by section 2(2) of the Act. The overhang is a material part which defeats his claim.
On this point I agree with the Judge. I would dismiss the appeal.
There is no disputing the Judge's finding that all or some of Nos. 24 and 25 Cranley Mews is a "house" as defined in section 2(1) of the Leasehold Reform Act 1967. It clearly is a building adapted for living in and reasonably socalled, notwithstanding that it is not structurally detached from Nos. 23 and 26. Nor is it disputed that the appellant as the tenant of Nos. 24 to 25 is the tenant of a leasehold house, occupying the house as his only or main residence for the last five years and that his tenancy is a long tenancy at a low rent in Greater London. He is therefore entitled to the statutory right of enfranchisement conferred by section 1 of the Act provided that:-
1. The rateable value of the house and premises on the appropriate day was not more than £400: section l(1)(a)
2. a material part of the house does not lie above (or below) a part of the structure not comprised in the house: section 2(2).
Was the rateable value more than £400? Is the part of the house over the garage known as No. 25 Cranley Mews Garage South ("the lock-up garage") a material part? Was the Judge right to answer both questions in the affirmative am so decide that the appellant was not entitled to the statutory right of enfranchisement?
I have found neither question easy to answer, but I have come to the conclusion that his answers to both questions were right, although I do not accept his figure for the appropriate...
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