Tilling v Whiteman
| Jurisdiction | England & Wales |
| Date | 1978 |
| Year | 1978 |
| Court | House of Lords |
Landlord and Tenant - Rent restriction - Joint owners - Letting by joint owner-occupiers - House required as residence for one owner-occupier - Whether jurisdiction to make order for possession -
The joint owner-occupiers of a dwelling house let it furnished in 1975 for a period of two years. The tenancy agreement contained a notice to the tenant that the landlord might recover possession of the premises under Case 10 of Part II of Schedule 3 to the Rent Act 1968. The tenant remained in occupation after the expiry of the term and the owners started proceedings for possession in the county court claiming that the dwelling house was formerly occupied by them as their residence and was now required as a residence for one of them (the first plaintiff). On a preliminary issue as to whether one of two joint owners of a dwelling house let on a regulated tenancy who occupied it as his residence was an owner-occupier entitled to recover possession of it under Case 10 of Schedule 3 to the Rent Act 1968 if the court was satisfied that the dwelling house was required as a residence for himself, the judge in the county court decided that the owners were not entitled to recover possession because the house was required as a residence for one of them only and he dismissed the claim. The Court of Appeal (by a majority) affirmed that decision.
On appeal by the first plaintiff: —
Held, allowing the appeal (Lord Fraser of Tullybelton dissenting), that upon the wording of Case 10 the first plaintiff was a person who had occupied the dwelling house as her residence; that she was a person who had let it on a regulated tenancy and that she was therefore an owner-occupier and if the dwelling house was required as a residence for her an order for possession could be made; accordingly, the case would be remitted to the county court for it to be decided on the basis that Case 10 applied to the agreed or assumed facts (post, pp. 404C, G, 405D).
Observations on the practice of courts of first instance allowing preliminary points of law to be taken (post, pp. 403D–G, 410C–E).
The following case is referred to in their Lordships' opinions:
McIntyre v. Hardcastle [
The following additional cases were cited in argument:
Howson v. Buxton (
Parker v. Rosenberg [
Sharpe v. Nicholls [
APPEAL from the Court of Appeal.
This was an appeal by the appellant, Ethel Irene Elizabeth Tilling, (first plaintiff in the action), from an order of the Court of Appeal (Stephenson and Shaw L.JJ., Eveleigh L.J. dissenting) dated March 22, 1978, dismissing the appellant's appeal from the order of Judge Sumner, dated May 3, 1977, in the Dover County Court. By that order the appellant's claim against the respondent, Josephine Whiteman, (the defendant in the action) for possession of a house under Case 10 of Schedule 3 of the Rent Act 1968 was dismissed on the preliminary point that since the house was required for occupation by one out of the two joint landlords, the facts did not fall within that case.
The facts are set out in the opinions of Lord Wilberforce and Lord Salmon.
Ronald Bernstein Q.C. and Christopher Sumner for the appellant.
The respondent in person.
Their Lordships took time for consideration.
March 8, 1979. LORD WILBERFORCE. My Lords, this appeal arises under Case 10 of Part II of Schedule 3 to the Rent Act 1968, which reads as follows:
“Where a person who occupied the dwelling house as his residence (in this Case referred to as ‘the owner-occupier’) let it on a regulated tenancy and — (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling house has not, since December 8, 1965, been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is satisfied that the dwelling house is required as a residence for the owner-occupier or any member of his family who resided with the owner-occupier when he last occupied the dwelling house as a residence.”
If these conditions are satisfied, section 10 of the Act requires an order for possession to be made. The appellant, Mrs. Tilling, owns a small house in Canterbury jointly with Miss G. L. M. Dossett. She claims to have been in occupation of it immediately before February 19, 1975. On that date the joint owners let it to the respondent, Miss Whiteman, for two years. The tenancy agreement contained a clause whereby Miss Whiteman agreed to yield up the premises at the end of the tenancy. There was a statement, signed by the joint owners, addressed to Miss Whiteman that under the
Miss Whiteman did not yield up possession as she had agreed, so the owners brought proceedings in the Canterbury County Court for possession and other relief. Pleadings were exchanged, and the case came on for trial in May 1977 with both sides legally represented. The learned judge took what has turned out to be an unfortunate course. Instead of finding the facts, which should have presented no difficulty and taken little time, he allowed a preliminary point of law to be taken, whether Case 10 applies to a case where there are joint owners one only of which requires the house as a residence. So the case has reached this House on hypothetical facts, the correctness of which remain to be tried. I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional.
My Lords, the legal issue in the present case is not an easy one. Case 10, and section 10 of the Act of 1968 upon which it is based, say nothing about joint owners, or joint occupiers. To read, or not to read, the singular expressions (“person,” “landlord”) as including the plural, gives rise to difficulties, as the judgments below well demonstrate. In my opinion our task must be to attribute that reasonably admissible meaning to the language which will best carry out what appears to be the legislative intention.
The two alternative views are clearly and forcefully set out in the judgments of the Court of Appeal.
The first is that, for an order for possession to be made, the house must be required for the residence of both co-owners. This commended itself to Stephenson L.J. and Shaw L.J. There is no doubt that a powerful case can be made for it on the language used, and some further support may be derived from the Court of Appeal decision in Mcintyre v. Hardcastle [
The second alternative is that there is no such requirement, and that each of the three conditions stated in Case 10 are on the agreed or assumed facts satisfied in the present case. First, Mrs. Tilling occupied the dwelling house as her residence. Secondly, she let it on a regulated tenancy...
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