Street v Mountford
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE GRIFFITHS |
| Judgment Date | 18 April 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0418-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0176 |
| Date | 18 April 1984 |
[1984] EWCA Civ J0418-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BOURNEMOUTH COUNTY COURT
(MR RECORDER ROLF)
Royal Courts of Justice,
Lord Justice Griffiths
Lord Justice Slade
84/0176
NO: 83 05127
MR P. COWELL (instructed by Messrs. Bower, Botton & Bower, Agents for Richards & Morgan, Solicitors, Bournemouth) appeared on behalf of the Appellant.
MISS CLAUDIA ACKNER (instructed by Messrs. D'Angibau & Malim, Solicitors, Boscombe) appeared on behalf of the Respondent.
This is an appeal by Mr Roger Street against an Order of Mr Recorder Rolf made on 21st September 1983 in the Bournemouth County Court.
The Order was made on an application made by Mr Street under Section 51A of the County Courts Act 1959 asking the Court to determine whether the occupancy of the respondent, Mrs Wendy Mountford, under a so-called Licence Agreement dated 7th March 1983 of the second-floor premises known as Rooms 5/6, 5 St. Clements Gardens, Boscombe, Bournemouth, of which Mr Street is the owner, is a licence or a tenancy protected by the Rent Act 1977. The Recorder answered this question by declaring that the so-called Licence Agreement is a tenancy agreement and that the tenancy is protected under the Act. One consequence was that the defendant was entitled to have a "fair rent" fixed for her occupation of the premises.
The facts are simple. The building known as Number 5 St. Clements Gardens has at all material times been divided into what were described by the plaintiff's agent, Mr Boyce, in an affidavit, as "flatlets". In December 1982, Mr Boyce, who is a solicitor, was appointed by the plaintiff as his agent to manage the property. At that time the defendant and her husband had, for at least some months, been occupying a single furnished room in the building, known as Number 5, under a written agreement which called itself a Licence Agreement, entered into between the plaintiff and the defendant. In or about March 1983 the defendant mentioned to Mr Boyce that she and her husband were looking for another flat. At about the same time the occupant of Room Number 6 left the premises. Since Rooms 5 and 6 were on the same floor, Mr Boyce, on behalf of the plaintiff, according to his oral evidence, offered the defendant a right of occupation of what he described as the whole of the top floor, save for the attic room. The top floor, with this exception, comprises Rooms 5 and 6 and a shower and lavatory. Mr Boyce and the defendant, after some negotiation, agreed that the defendant should pay £37 a week for this right of occupation. After this oral agreement had been reached, Mr Boyce completed a standard form of written Agreement and presented it to her for signature. On 7th March 1983 she signed it in his presence in two places. He completed a counterpart Agreement, which he signed as agent and handed it to her. There was no conversation between them as to its form; the defendant requested no explanation of it and none was given. Save as to the details of the room and payment, it was identical to that which the defendant had signed in regard to her previous occupation of room Number 5. The Agreement signed by the parties (twice by Mrs Mountford) on 7th March 1983 read as follows: " LICENCE AGREEMENT. I MRS WENDY MOUNTFORD (Signed) agree to take from the owner Roger Street the single furnished room number 5 & 6 at 5 St. Clements Gardens, Boscombe Bournemouth, commencing 7th March 1983 at a licence fee of £37 Per week. I understand that the right to occupy the above room is conditional on the strict observance of the following rules:- 1. No paraffin stoves, or other than the supplied form of heating, is allowed in the room. 2. No one but the above-named person may occupy or sleep in the room without prior permission, and this personal licence is not assignable. 3. The owner (or his agent) has the right at all times to enter the room to inspect its condition, read and collect money from meters, carry out maintenance works, install or replace furniture or for any other reasonable purpose. 4. All rooms must be kept in a clean and tidy condition. 5. All damage and breakages must be paid for or replaced at once. An initial deposit equivalent to 2 weeks licence fee will be refunded on termination of the licence subject to deduction for all damage and other breakages or arrears of licence fee, or retention towards the cost of any necessary possession proceedings. 6. No nuisance or annoyance to be caused to other occupiers. In particular, all music played after midnight to be kept low so as not to disturb occupiers of other rooms. 7. No children or pets allowed under any circumstances whatsoever. 8. Prompt payment of the licence fee must be made every Monday in advance without fail. 9. If the licence fee or any part of it shall be seven days in arrear or if the occupier shall be in breach of any of the other terms of this agreement or if (except by arrangement) the room is left vacant or unoccupied, the owner may re-enter the room and this licence shall then immediately be terminated (without prejudice to all other rights and remedies of the owner). 10. This licence may be terminated by 14 days written notice given to the occupier at any time by the owner or his agent, or by the same notice by the occupier to the owner or his agent. Occupier's signature: Mrs. W. Mountford (Signed) (Owner's copy) Owner/agent's signature (Occupier's copy). Date 7th March, 1983. I understand and accept that a licence in the above form does not and is not intended to give me a tenancy protected under the Rent Acts. Occupier's signature: Mrs W. Mountford (Signed)."
Mr Boyce's unchallenged evidence was that the defendant requested that the Agreement should be taken in her name only, rather than the joint names of herself and her husband, and that verbal permission was given that the husband should share the occupation with her.
Following the execution of this Agreement, according to the evidence, the defendant and her husband took up occupation of Rooms 5 and 6 and continued to enjoy the use of the shower and lavatory on the top floor, from now on exclusively. Mr Boyce had one set of keys to Rooms 5 and 6, and the defendant had another set. Room 5 has its own cooking facilities.
It is common ground that, though the Agreement of 7th March, 1983 describes itself as a "Licence Agreement", it does not necessarily follow that the document, merely on that account, amounts in law to an agreement for a licence rather than a tenancy. As Jenkins L.J. said in Addiscombe Garden Estates Ltd. v. Crabbe (1958) 1 Q.B. at page 522: "The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence."
Much more recently, in Marchant v. Charters (1977) 1 W.L.R. 1181, Lord Denning, M.S., with whose judgment Orr L.J. and Waller L.J. agreed, stated the test to be applied, in the context of a case which concerned the occupancy of a single furnished bed-sittingroom, having its own cooking facilities as follows (at page 1185): "Gathering the cases together, what does it come to? What is the test to see whether the occupier of one room in a house is a tenant or a licensee? It does not depend on whether he or she has exclusive possession or not. It does not depend on whether the occupation is permanent or temporary. It does not depend on the label which the parties put upon it. All these are factors which may influence the decision but none of them is conclusive. All the circumstances have to be worked out. Eventually the answer depends on the nature and quality of the occupancy. Was it intended that the occupier should have a stake in the room or did he have only permission for himself personally to occupy the room, whether under a contract or not? In which case he is a licensee".
The Recorder heard oral evidence from Mr Boyce and Mr and Mrs Mount-ford. In giving judgment, he said that each case had to be decided on its own facts. "The document", he said, "apart from the heading and the foot note had all the characteristics of a Tenancy Agreement. Mr Boyce, a solicitor, was clear about that other than the foot note. He stated that he could find no conditions in the form of agreement not to be found in a tenancy agreement other than the foot note". This was a reference to a reply given by Mr Boyce in answer to a question put to him by the Recorder himself in the following terms: "Mr Boyce, are there any terms in the Agreement inconsistent with a tenancy agreement?" To which Mr Boyce replied: "The foot note but otherwise I do not think so." The question was one of law and therefore not in my opinion a proper question to put to the witness, even though he was a solicitor. In so far as he attached weight to the answer given by the witness, the Recorder was, in my opinion, in error, since the question was one for him to decide.
The Recorder then continued: "Furthermore, the...
To continue reading
Request your trial
-
Westminster City Council v Clarke
... ... 11 The Council own a terrace of houses 131-137 Cambridge Street. The premises are used by the Council as a hostel. There are 31 single rooms each with a bed and limited cooking facilities. There was originally a ... Section 48 of the Act of 1980 made clear that such a licence created a secure tenancy. Subsequently in Street v Mountford [1985] A.C. 809 this House reaffirmed the general principle that a grant of exclusive possession of residential accommodation at a rent created a ... ...
-
Toomer (Renford) v Herbert Hamilton, et Al
...exclusive possession for a fixed or periodic term certain in consideration of a premium or periodic payment." Per Lord Templeman in Street v Mountford [1985] 2 ALL ER 289, at page 293. 10In this case, the Claimant said that the first Defendant had fixed the rent at Seven Hundred Dollars ($......
-
EDWARD LEE & Company Ltd v N1 PROPERTY DEVELOPMENTS Ltd
... ... 1994 (Ch), [2004] Ch 142; Lord Ranelagh v Melton (1864) 2 Drew & Sm 278; Rye v Rye [1962] AC 496; Stirrup's Contract, In re [1961] 1 WLR 449; Street v Mountford [1985] AC 809; United Scientific v Burnley Council [1978] AC 904 and Weston v Collins (1865) 12 LT 4 considered - Landlord and Tenant Act ... ...
-
Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
... ... (Transcript of the Handed Down Judgment of WordWave International Ltd A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ... Hearing dates: 14, 15 March ... If authority is needed for that banal observation, I would cite Street v Mountford [1985] 1 AC at p 818 ... Where an immediate order for possession has been made, as in Artesian , that right is removed, so the tenancy cannot be ... ...