St. Catherine's College v Dorling
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE EVELEIGH,LORD JUSTICE BRANDON |
| Judgment Date | 25 May 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0525-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1979 |
[1979] EWCA Civ J0525-9
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On Appeal from Order of His Honour Judge Clover - Oxford County Court)
(Revised)
Lord Justice Megaw
Lord Justice Eveleigh and
Lord Justice Brandon
In the Matter of the Rent Act 1977:
Mr. ALAN BOYLE (instructed by Messrs. Linnell & Murphy, Oxford) appeared on behalf of the Appellants (Applicants).
Mr. TERENCE ETHERTON (instructed by Messrs. Outred & Co., Weybridge, Surrey) appeared on behalf of the Respondent (Respondent).
I shall ask Lord Justice Eveleigh to deliver the first judgment.
On 14th March, 1979, in the Oxford County Court, His Honour Judge Clover refused to grant a declaration, on the application of St. Catherine's College, that the premises 208 Headington Road, Oxford, of which the College was the tenant, were the subject of a protected tenancy under section 1 of the Rent Act, 1977. That section reads: "Subject to this Part of this Act, a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act".
As a result of the reluctance of house-owners to provide rented accommodation for students, Parliament introduced section 8 of the Rent Act, 1977, which reads as follows, by sub-section (l): "A tenancy is not a protected tenancy if it is granted to a person who is pursuing, or intends to pursue, a course of study provided by a specified educational institution and is so granted either by that institution or by another specified institution or body of persons".
A firm of estate agents in Oxford, Messrs Runyards, with the co-operation of a large number of Oxford colleges, introduced a scheme by which it was envisaged that accommodation would more readily be made available to undergraduates. They published a booklet giving details of that scheme. The general idea was that the owner of the house would let premises to the college, who would then make the accommodation available to undergraduates. A £50 deposit was taken from undergraduates who had made an application for the accommodation, and that deposit was treated as an application fee, unless the arrangements were finally completed, when it was treated as part-payment of rent. Runyards orallyguaranteed to the colleges concerned that every undergraduate would have a separate room.
In so far as 20S Headington Road is concerned, there were four undergraduates of the college who applied to Messrs. Runyards for accommodation. They found a suitable house, namely, 208 Headington Road. The college was willing to take those premises under a lease.
On 12th June, 1978 the undergraduates signed a document entitled "Agreement and Indemnity', which stated: "In consideration of the College, through the Domestic Bursar, entering on my behalf into a lease of 208 Headington Road, Oxford, from 8th July 1978 for one year less 7 days at a rent of £224.25 per month. I hereby agree with the College to fulfil and observe all conditions and covenants contained in their lease and to indemnify the College against all liabilities which it may incur thereunder". That document bears five signatures, for on discovering that the house would accommodate five, one further undergraduate was found to liven there.
It is not alleged in this case that the College took a lease as agent for the undergraduates who signed that indemnity or for any other undergraduate. Indeed, the landlord clearly would not have made a contract with the undergraduates themselves. Nor is it shown that the landlord was aware of the terms of that agreement.
The premises consisted of three rooms upstairs and two rooms downstairs. There was a small kitchen; there was a bathroom; and there were two W. Cs., one inside and one outside. One of the two downstairs rooms had a dining table and four chairs. There were no locks on the doors of the rooms. Each room was equipped with sufficient furniture for its use as a bedroom and a study and sitting-room. The premises were occupied by the fiveundergraduates. Each took a room. Each gave a cheque for his share of the total rent; and generally speaking one of them would take all the cheques to Runyards. The dining table was taken from the room where it was when they first occupied the premises and set up in the kitchen. The general practice was for these occupants to cook in relays, providing their own individual food, although on occasions, at week-ends in particular, they might eat together around that table.
The question in this case is whether the premises were let as a separate dwelling within the meaning of section 1. The important point in answering that question is to determine the contemplated use of the premises. In Ponder and Another v. Hillman and Another (1969) 3 All England Reports 694, Lord Justice Goff, at page 696, referred to the case of Wolfe v. Hagan and to a particular passage in the judgment of Lord Justice Evershed (as he then was) and then continued: "He there approved a passage in Megarry on the Rent Acts (4th edition) page 19, in these terms: 'Where the terms of the tenancy provide for or contemplate the use of the premises for some particular purpose, that purpose is the essential factor, not the nature of the premises or the actual use made of them. Thus, if the premises are let for business purposes, the tenant cannot claim that they have been converted into a dwelling house merely because somebody lives on the premises".
So it follows that one has to consider the terms of the lease and the surrounding circumstances at the time that the lease was granted. It may be that in some cases that assistance can be obtained from the subsequent user of the premises. But in my opinion generally speaking such assistance will be found to be a matter of last resort.
I turn to consider the terms of the tenancy agreement in this case. There is the usual habendum and reddendum, and then I turn to clause 2 (l) (i), in which the tenant covenants "Not to use thedemised premises otherwise than for occupation by a person or persons who are as specified by section 8 of the Rent Act 1977 pursuing or intending to pursue a course of study provided by the Tenant whether the said person or persons occupy the demised premises as sub-tenants or licensees".
Sub-clause I (ii) reads: "Not to assign sub-let part with possession or share possession or occupation of all or part of the demised premises furniture fixtures fittings or effects or any part thereof provided that there shall be no breach of this clause if the Tenant shall be a specified educational institution as defined by section 8 of the Rent Act 1977 and either the Tenant sub-lets only to a person who is pursuing or intending to pursue a course of study provided by the Tenant or the Tenant grants a licence for the use of the demised premises to such person".
Then sub-clause (m), the user clause, reads as follows: "Not to carry on or permit to be carried on upon the demised premises any profession trade or business whatsoever or let apartments or receive paying guests in the demised premises but to use or permit the same to be used as private residence only is the occupation of one person per room and not in any way to contravene the Town and Country Planning Acts and not to exhibit any notice or poster on any portion of the demised premises".
Mr. Boyle has submitted that here a group of students, or undergraduates, intended to occupy the premises as joint occupants of the whole, and that this was the object and purport of the tenancy granted to the College, He particularly relied upon sub-clause (m) and invited the Court to say that the words "to be used as private residence only" should be read to include the indefinite article: that is to say, "to be used as a private residence only".
Mr. Boyle then...
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