Royal Life Saving Society v Page
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GEOFFREY LANE,LORD JUSTICE EVELEIGH |
| Judgment Date | 24 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0524-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 1978 |
On Appeal from West London County Court
(His Honour Deputy Judge Goldstein)
On Appeal from Bloomsbury & Marylebone County Court
(His Honour Judge Clapham
[1978] EWCA Civ J0524-1
The Master of The Rolls
(Lord Denning)
Lord Justice Geoffrey Lane and
Lord Justice Eveleigh
In The Supreme Court of Judicature
Court of Appeal
MR. J. COLYER, Q.C., MR. P. de is PEQUERIE and MR. O.J. PARKER (instructed by Messrs. Rees Kon Freeman & Co., Solicitors, London) appeared on behalf of the Plaintiffs (Appellants).
MR. A. WALKER (instructed by Messrs. Eric Hauser & Co., Solicitors, London) appeared on behalf of the Defendant (Respondent).
MR. J. COLYER ft.C. and MR. D. PARRY (instructed by Messrs. Davison & Co., Solicitors, London) appeared on behalf of the Plaintiffs (Appellants).
MR. C.L. FALCONER (instructed by Messrs. Monro Pennefather & Co., Solicitors, London) appeared on behalf of She Defendant (Respondent)
Here we have a topsy-turvy situation. Two landlord contend that their tenants are "business tenants" and entitled to have their tenancies continued under the statute in that behalf: whereas the tenants contend that they are not so entitled at all. The reason for this oddity is because, if the tenants are not "business tenants", their tenancies are "regulated tenancies" and they are protected by the Rent Acts. The protection under the Rent Acts is much better for the tenants than the protection under the business statute. So the landlords seek to chase them out of the Rent Acts and put them into the Business Acts.
The statutes on this subject cannot properly be understood except in the light of their history. I will, therefore, sketch it in broad outline, taking by way of illustration a situation which used to be very common. It is where a shopkeeper lives over the shop, or a doctor has his consulting room in his house. For over 35 years from 1920 onwards such a person was protected by the Rent Acts, not only in respect of the amount of rent, but also from eviction. The Acts distinctly declared that the application of them "to any house or part of a house shall not be excluded by reason only that part of the premises is used as a shop or office or for business, trade or professional purposes", see section 12(2)(ii) of the 1920 Act. This protection was carried so far that when a lady ran a guest house as a business and had her own bedroom and sitting room there - entirely ancillary to the business - she was protected by the Bent Acts, see Vickery v. Martin (1944) King's Bench 679.
This protection was continued until 1957. There was no break in 1954: for although the Landlord and Tenant Act 1954(which I will call the Business Tenants Act) gave rights to tenants of business premises, it did not apply to tenancies which were protected by the Rent Acts - see section 43(1)(c) of the 1954 Act.
But in 1957 there was a fundamental change. By the Rent Act, 1957 most houses were de-controlled. Thenceforward the shopkeeper who lived over the shop, and the doctor who had his consulting room in his house, were no longer protected by the Rent Acts. They were only protected by the Business Tenancy Act 1954 - see section 11(7) and 4th Schedule, paragraph 11, of the 1957 Act.
In 1965 there was another fundamental change. By the Rent Act, 1965 Parliament restored protection for the tenants of dwelling houses who lived at home away from the business. But this time Parliament did not give this protection to the shopkeeper or the doctor who lived over the shop or the consulting room. Parliament left them to the protection of the Business Tenancy Act 1954. From 1965 onwards Parliament divided tenancies into two separate and distinct categories: "Regulated Tenancies" and "Business Tenancies". Every tenancy had to be placed into one category or the other. "Regulated tenancies" were dwelling houses protected by the Bent Acts. "Business tenancies" were premises protected by the Business Tenancy Act 1954. This dichotomy was made by Schedule I(3) and Schedule I (1) and (3) of the 1965 Act, and has been continued by the Acts of 1968 and 1977. See section 9(5) of the 1968 Act and section 24(3) of the 1977 Act.
The result is this. If a house is let as a separate dwelling (without being occupied in whole or in part for business purposes) it is a "regulated tenancy". But, if itis occupied by the tenant "for the purposes of a business carried on by him for those or other purposes" it is a "business tenancy", see section 23(1) of the 1954 Act. It cannot be both.
It is of the first importance now to be able to place a tenancy into the correct category, because the two categories are very different animals.
REGULATED TENANCY
When a tenancy is a "regulated tenancy" the tenant is protected by the Bent Acts. So long as the contractual tenancy continues, the tenant is a "protected tenant". He is protected in respect of the rent he can be charged. As soon as the contractual tenancy is determined by effluxion of time or expiry of notice to quit, he becomes a "statutory tenant". This is a privilege which is personal to him, and, after he dies, to his widow or a member of the family residing with him. He cannot assign it to anyone else. His residence there must be continuous. If he ceases to reside thus, he loses his right as statutory tenant: and he cannot revive it by going in again. It is so personal that, if the tenant is a limited company, it has no right to continue the tenancy after the contractual tenancy has come to an end.
BUSINESS TENANCY
This is altogether different. During the contractual tenancy, the tenant is there under the terms of the contract. But, once the contractual tenancy comes to an end (by effluxion of time or notice to quit) there is automatically a continuation of the tenancy for an indefinite time in the future unless and until it is terminated in accordance with the statute. There has to be at least six months' notice, and not more than twelvemonths' notice. Until it is so terminated, the relations of the parties are governed by the terms of the contract of tenancy. This "continuation tenancy" is nothing like a "statutory tenancy". It is not a personal privilege of the tenant. It is a piece of property which he can assign or dispose of to a third person, provided that it was not prohibited by the terms of the contract. And he can give it up on proffering notice to the landlord.
THE APPLICATION OF THE STATUTE
There was much discussion before us as to the meaning of the Business Tenancy Act 1954 (I use those words because I think "Landlord and Tenant Act 1954" is a little confusing): especially the word "purposes" in section 23(1): and the time or times at which those "purposes" had to exist: and the effect of a change by the tenant in the use to which he put the property. Could he take himself in or out of the Act at his option? I found all these matters so confusing that I do not propose to attempt a solution to-day. I am only going to take four simple illustrations to show how the statute works: for they will suffice for our present cases.
First, take the case where a professional man is the tenant of two premises: one his office where he works, the other his flat, conveniently near, where he has his home. He has then a "business tenancy" of his office: and a "regulated tenancy" of his home. This remains the situation even though he takes papers home and works on them at evenings or weekends and occasionally sees a client at home. He cannot in such a case be said to be occupying his flat "for the purpose of" his profession. He is occupying it for the purpose of his home, even though he incidentally does some work there, see Sweet v. Parsley (1970) Appeal Cases at page 155 by Lord Morris of Borth-y-Gest.
Second, take the case where a professional man takes a tenancy of one house for the very purpose of carrying on his profession in one room and of residing in the rest of the house with his family. Like the doctor who has a consulting room in his house. He has not then a "regulated tenancy" at all. His tenancy is a "business tenancy" and nothing else. He is clearly occupying part of the house "for the purpose of" his profession, as one purpose; and the other part for the purpose of his dwelling as another purpose. Each purpose is significant. Neither is merely incidental to the other.
Third, suppose now that the first man decides to give up his office and to do all his work from his home: there being nothing in the tenancy of his home to prevent him doing it. In that case he becomes in the same position as the second man. He ceases to have a "regulated tenancy" of his home. He has only a "business tenancy" of it.
Fourth, suppose now that the second man decides to give up his office at home and to take a tenancy of an office elsewhere so as to carry on his profession elsewhere. He then has a "business tenancy" of his new premises. But he does not get a "regulated tenancy" of his original home, even though he occupies it now only as his home, because it was never let to him as a separate dwelling: unless the landlord agrees to the change.
Those illustrations point to the solution of the present two cases.
THE ROYAL LIFE SAVING SOCIETY v. ERNEST DONALD PAGE
No. 14 Devonshire Street is a house with four floors. Itis owned by the Howard de Walden Marylebone Estate. In 1945 they let it on a long lease to the Royal Life Saving Society for 64½ years. That Society occupy most of the house themselves: but in 1960 they let the top two floors as a maisonette to a Mr. Gut. It was for 14 years at a rent of £600 a year. There was a covenant prohibiting assignment without the...
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