Tandon v Trustees of Spurgeons Homes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE GRIFFITHS,LORD JUSTICE WATKINS |
| Judgment Date | 20 February 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0220-1 |
| Docket Number | 81/0049 |
| Date | 20 February 1981 |
| Court | Court of Appeal (Civil Division) |
[1981] EWCA Civ J0220-1
IN THE SUPREME COURT OF JUDICATUEE
COURT OF APPEAL (Civil Division)
(On Appeal From His Honour Judge Coplestone-Boughey
Sitting In The Wandsworth County Court)
Royal Courts of Justice
Lord Justice Ormrod,
Lord Justice Watkins
and
Lord Justice Griffiths
81/0049
79 01599
In The Matter of a Lease Dated 23rd July L881 Between WILLIAM WHATELY and Thomas Jones and James Harding
and
In The Matter of a House and Premises At 116 Mitcham Lane, Streatham, Sw16
MR. PATRICK GROUND (instructed by Messrs. Pothecary & Barratt) appeared on behalf of the Appellants.
MR. DAVID PARRY (instructed by Messrs. Radia & Co.) appeared on behalf of the Respondent.
( )
Lord Justice Griffiths will give the first judgment.
This is an appeal from a decision of His Honour Judge Coplestone-Boughey, in which he held that a tenant was entitled to the enfranchisement of his lease pursuant to the provisions of the Leasehold Reform Act 1967. There is no dispute in this case that the tenant was entitled to enfranchisement providing that the building in question of which he was tenant could be said to be a house "reasonably so called" within the meaning of section 2 of the Act.
I cannot improve upon the description of the property contained in the learned county court judge's judgment and I now read the description from that judgment: "The property is clearly shown by the agreed plan, description and photographs which are before me". I interpolate to say that the members of this court have had the advantage of seeing that plan and photographs. "The site is a long narrow plot with a frontage of about 21 ft upon Mitcham Lane. The ground floor is a shop fronting the main road and is one of four identical shops with varying shop fronts. There is a first floor above containing three effective rooms in the main part of the building and a back addition. Behind this building there was originally a narrow open path running beside the back addition and behind that an open space leading to a two-storey stable which in turn gave access to a rear service road. At some uncertain time but certainly before 1962 when Mr. Kirkaldie inspected the premises a roof, treated for London Building consent as temporary, was erected over the whole of the yard except an outside water closet. This roof runs from and is attached to the rear of the main building and extends right back to the stable. The doors are arranged so that there is internal communication from the shop in front through the original open space to the stable and service road at the back. The interior layout is that at the rear of the main building there is an opening to the right which forms the access to the upper part of the building and also to the combined bathroom and water closet at ground level. The stairs rise by a right angle to the right and open upon the first floor. At present the whole of the ground floor including the covered yard and stable are used as a shop and the first floor is residential. In 1962 the layout was the same but the first floor was used as offices".
We have seen the photographs of the premises and it consists of one of a small parade of shops. Each shop has living accommodation above it; each consists essentially of a flat above a shop. The premises now consist, as to their area, of about 75 per cent of the area being used as a shop, because the whole of the yard which is covered in is now used as storage for the shop, and about 25 per cent for the modest living accommodation, comprising living room and two bedrooms on the first floor.
I turn now to section 2, subsection (l) of the Act, which provides: "For purposes of this Part of this Act, 'house' includes any building designed or adapted for living in and reasonably so called, notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes".
These premises were originally let by a lease in 1881 and were originally let not solely as a house but (I quote from the lease) as a "messuage or dwellinghouse and shop". So these are premises which started as a shop with living accommodation.
The learned judge was referred to the decision of this court in Lake v. Bennett reported in (1970) 1 QB page 663. He concluded that that decision applied to the facts in this case and concluded it in favour of the tenant. The premises in Lake v. Bennett were, in my view, of a markedly different character to the present premises and we have had the advantage of seeing photographs of them. In Lake v. Bennett the premises in question consisted of a house in a parade of houses, which, from looking at the photographs, were quite clearly built as a terrace of dwellinghouses. It was a house that consisted of a basement, a ground floor and first and second floors. In the course of time the ground floor was converted into a betting shop. The Court of Appeal held that, notwithstanding that the ground floor was now a betting shop, the building as a whole was "reasonably so called" a house, and that conclusion differed from that of the learned county court judge who tried the case at first instance. The Court of Appeal held that they were free to differ from the learned judge because, he having found the primary facts, this court was free to say whether or not, on those primary facts, the house fulfilled the condition in section 2(l), namely, that it was "reasonably so called" a house.
The learned judge having found the primary facts in this case, in my view this court is free to apply its own views of whether these premises are reasonably called a house. In approaching this decision, I bear in mind that the right to enfranchisement is only given to householders. A person who lives in a flat has no right to enfranchise the flat. Furthermore, I bear in mind that Parliament does provide protection for those who carry on businesses and when their leases end they can apply, under the relevant statutory provision, for a new lease, and if they cannot agree with their landlords then there are provisions for the court to fix a fair rent for the parties.
In Lake v. Bennett, although the court in that case, on those facts, was satisfied that that building was reasonably to be called a house, Lord Denning realised that in future other difficult questions...
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Malekshad v Howard de Walden Estates Ltd
...way. 21 The most important authorities, for the purpose of determining this appeal, are the decision of the House of Lords in Tandon v Trustees of Spurgeons Homes [1982] AC 755 and the decision of this court in Duke of Westminster v Birrane [1995] QB 262. Tandon was mainly concerned with th......
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Malekshad v Howard de Walden Estates Ltd
...second part of section 2(1). 23 In my opinion the Court of Appeal were wrong to apply the guidance which this House gave in Tandon v Trustees of Spurgeons Homes [1982] AC 755, and in particular that given by Lord Roskill at pp 766-767, to the facts of this case. The question of law which Lo......
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Boss Holdings Ltd v Grosvenor West End Properties Ltd and Another; Mallett & Son (Antiques) Ltd v Same
...the property was designed or adapted for living in, it is right to record that, in the light of the reasoning of this House in Tandon v Trustees of Spurgeons Homes [1982] AC 755, the Judge was plainly correct to conclude that the property could reasonably be called a 16 Grosvenor's case is ......
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Magnohard Ltd v (1) The Right Honourable Charles Gerald John Earl Cadogan (2) Cadogan Estates Ltd
...so called" are intended to be words of limitation: Lake v Bennett [1970] 1 QB 663, 670 (Lord Denning MR), 672 (Salmon LJ); Tandon v Trustees of Spurgeon Homes [1982] AC 755, 764 (Lord Roskill); Malekshad v Howard de Walden Estates Ltd [2002] UKHL 49 [2003] 1 AC 1013, 1028 (Lord Millett); Pr......