Patel and Another v Pirabakaran
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Sir Peter Gibson |
| Judgment Date | 26 May 2006 |
| Neutral Citation | [2006] EWCA Civ 685 |
| Docket Number | Case No: B2/2005/2004 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 May 2006 |
[2006] EWCA Civ 685
IN THE SUPREME COURT OF JUDICATURE
ON APPEAL FROM H.H. JUDGE OPPENHEIMER
BRENTFORD COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wilson and
Sir Peter Gibson
Case No: B2/2005/2004
LOWER COURT NOS: 4BF04825, 4BF04646
Mr. Jan Luba QC (instructed by Messrs Van-Arkadie & Co, South Harrow) for the Appellant
Mr. Tom Weekes (instructed by Messrs Albin Hunt & Stein, Marylebone) for the Respondents
THE QUESTION
In circumstances in which premises are let partly for residential purposes and partly for business purposes and in which the tenant is residing in the part let for residential purposes, is the landlord required by s.2 of the Protection from Eviction Act 1977 ("the Act of 1977") not to enforce any right of forfeiture under the lease otherwise than by proceedings in court?
Such is the question raised by this appeal. It is surprising that it has not previously been answered.
INTRODUCTION
Section 2 of the Act of 1977, which is entitled "Restriction on re-entry without due process of law", provides:
"Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them."
So, more focussed, the question becomes whether premises let partly for residential purposes and partly for business purposes are "let as a dwelling" within the meaning of s.2 of the Act of 1977. The appeal is against an order for possession made by H.H. Judge Oppenheimer in the Brentford County Court on 25 August 2005. His answer to that question was negative. But, recognising its importance and difficulty, he gave permission to appeal against his order. Mr Luba QC, who now appears for the appellant tenant, contends that the judge's answer should have been affirmative. Mr Weekes, who, as he did before the judge, appears for the respondent landlords, maintains that the judge's negative answer was correct.
In effect, therefore, Mr Luba suggests that the phrase "let as a dwelling" in s.2 of the Act of 1977 means "let wholly or partly as a dwelling", whereas Mr Weekes suggests that it means "let exclusively as a dwelling".
THE FACTS
The issue arises out of a lease dated 20 August 1999 of premises described therein as "all that land together with shop premises and residential accommodation above" at 44 Syon Lane, Osterley, Middlesex, granted by the respondent landlords to third parties for a term of 16 years at a rent of £7230 p.a. subject to review. In 2003, with the licence of the landlords, the third parties assigned the lease to the appellant tenant ("the tenant") . By then the rent had risen to £10,845 pa.
By clause 3(13) of the lease the tenant covenanted
"Not to use or permit the Demised Premises to be used otherwise than as to the ground floor as a shop for the business of a retail grocers greengrocers and provisions merchant the sale of newspapers periodicals magazines and stationery and the sale of intoxicating liquors of all descriptions for consumption off the Demised Premises AND as to the upper floor for residential accommodation for a single family."
It was agreed in the lease that the landlords should have a right of re-entry as follows:
"That if the said rents or any part thereof shall be unpaid for twenty one days after any of the days hereinbefore appointed for payment thereof whether or not the same shall have been lawfully demanded or if … or if … or if any covenant on the Tenant's part herein contained shall not be performed or observed then and in any of the said cases it shall be lawful for the Landlord or any person or persons duly authorised by the Landlord in its behalf to enter into and upon the Demised Premises or any part thereof in the name of the whole to re-enter the same and to repossess and enjoy without prejudice to any right of action or remedy of the Landlord in respect of any antecedent breach of any of the covenants by the Tenant."
The tenant conducted a retail business on the ground floor of the premises and resided on the first floor. By 13 February 2004 he was, so the judge found, in arrears of rent for at least 21 days in the sum of £1059. On that day the landlords purported to exercise their right of re-entry by causing bailiffs to change the locks of the shop on the ground floor. Until the hearing before the judge in August 2005 the tenant remained excluded from the shop. Until September 2004, however, he remained resident in the flat, which has a separate entrance.
On 8 September 2004 the landlords issued a claim against the tenant for an order for possession of the flat. The basis of the claim was that, by their re-entry on 13 February 2004, the lease had become forfeit.
On 12 September 2004 water cascaded from the flat into the shop through the ceiling. In that regard the tenant was charged with committing criminal damage to the premises and it became a condition of his bail that he should not return to the flat. On 13 September the landlords peaceably changed the locks of the flat. On 20 September the tenant issued a claim against the landlords for an injunction that they should be restrained from excluding him from either part of the premises. The basis of the claim was that, by reason of s.2 of the Act of 1977, the purported forfeiture of the lease on 13 February 2004 was unlawful. On 24 September, explaining that he hoped to secure an alteration of the bail condition, the tenant obtained an interim injunction against the landlords that they should not prevent him from occupying the flat. In the event, however, he failed to secure an alteration of the condition. In January 2005 he was convicted of causing criminal damage to the premises and, apart from being sentenced to community service, he was ordered to pay £4000 to the landlords by way of compensation. The conclusion of the criminal proceedings enabled him to return to reside in the flat; and, at the time of the hearing before the judge in August 2005, he remained resident in it.
12. The events of September 2004 are irrelevant to the forfeiture or otherwise of the lease. For the contractual right of re-entry is into the premises "or any part thereof in the name of the whole". Thus, unless the landlords were precluded by s.2 of the Act of 1977 from exercising their right of re-entry otherwise than by proceedings in court, their actions on 13 February 2004 achieved forfeiture of the lease referable to the whole premises and the tenant thereupon became a trespasser in the flat.
In a succinct judgment the judge held, by reference to an authority to which I will refer in [32] below, that the demised premises were not "let as a dwelling"; that accordingly the landlords were not constrained by s.2 of the Act of 1977; and that therefore the lease had been lawfully forfeited on 13 February 2004. He went on to hold –against which there is no appeal – that, partly by reference to the criminal damage, there was no ground for granting the tenant relief from forfeiture under s.146(2) of the Law of Property Act 1925("the Act of 1925") . So in the claim brought by the landlords he ordered the tenant to give them possession of the flat and to pay them damages for trespass; and he dismissed the claim brought by the tenant.
THE ACT OF 1977
The first task is to set s. 2 of the Act of 1977 in context. Along with ss.1, 3 and 4, it is in Part I, entitled "Unlawful Eviction and Harassment". Section 5, on the other hand, is in Part II, entitled "Notice to Quit". The remaining sections are in Part III, entitled "Supplemental Provisions".
One does best to start with s.3, which is entitled "Prohibition of eviction without due process of law" and which, as amended, provides:
"(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and –
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,
it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises."
By s.8(1) , the phrase "statutorily protected tenancy" now means eight specified types of tenancy. The third, which has been in the list from the beginning and which is set out at (c) , is "a tenancy to which Part II of the Landlord and Tenant Act 1954 applies". This leads to s.23 of that Act ("the Act of 1954") , which provides:
"(1) Subject to the provisions of this Act, [Part II] of this Act applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes."
So the ambit of s.3 becomes clear. If the circumstances are that
(a) the premises have been "let as a dwelling";
(b) the tenancy has come to an end; and
(c) the occupier, i.e. anyone lawfully residing in them at the termination of the tenancy, continues to reside in them,
then it is unlawful for the owner to recover possession of them from him otherwise than by proceedings in court. If, however, by another source, the former tenant already enjoys security of tenure or other statutory protection following the termination of his tenancy, he has no need for the protection of s.3 and so is excluded from it...
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