Uratemp Ventures Ltd v Collins and Another (1st Respondent) Carrell (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE MANCE,MR JUSTICE MOORE-BICK |
| Judgment Date | 07 July 2012 |
| Neutral Citation | [2012] EWCA Civ J0707-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CCRTF/1999/0511/B3 |
| Date | 07 July 2012 |
[2012] EWCA Civ J0707-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEST LONDON
COUNTY COURT
His Honour Judge Cotran
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Mance
Mr. Justice Moore-Bick
Case No: CCRTF/1999/0511/B3
and CCRTF/1999/0524/B3
Mr. Phillip Galway-Cooper (instructed by Messrs. Fladgate Fielder of London SW1) for the Appellant
Mr. Richard Vain (instructed by Messrs. Alan Edwards & Co.) for the 1st Respondent
Mr. Paul Staddon (instructed by Messrs. Oliver Fisher & Co.) for the 2nd Respondent
Saturday, 07 July 2012
There are two appeals before this court. Each is brought by the Claimant, Uratemp Ventures Ltd. ("Uratemp"), from an order made on 29 January 1999 by His Honour Judge Cotran in West London County Court. By one order the Judge dismissed the action brought by Uratemp against the Defendant John Collins for possession of Room 403 at the Viscount Hotel, 16 Prince of Wales Terrace, London, W8 and declared Mr. Collins to have an assured tenancy of that room under the Housing Act 1988. By the other order the Judge dismissed proceedings by Uratemp under O. 24 r. 1 of the County Court Rules against the Defendant Mary Carrell for possession of Room 100 at the hotel and declared her to have an assured tenancy of that room. Permission to appeal was refused by the Judge but granted by the single Lord Justice.
By s. 1 (1) Housing Act 1988:
"A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as —
(a) the tenant …. is an individual; and
(b) the tenant …. occupies the dwelling-house as his only or principal home; and
(c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below cannot be an assured tenancy."
It is not in dispute that in the case of each of Mr. Collins and Mrs. Carrell, if there is a tenancy of a dwelling-house let as a separate dwelling, he or she occupies the dwelling-house as his or her only or principal home. Mr. Collins did claim that he had a protected tenancy within the meaning of the Rent Act 1977 as an alternative to an assured tenancy, but the Judge made no finding on that, and the point is not pursued before us. It is not suggested that otherwise subsection ( 2) or (6) would prevent any tenancy from being an assured tenancy. Nor are we concerned with any question of shared facilities or accommodation. If the room is a dwelling-house the subject of a tenancy, it is not in dispute that it is let as a separate dwelling.
The questions therefore in issue before us, as they were before the Judge, are (1) whether in relation to each room it is occupied under a tenancy or a licence, and (2) whether it is a dwelling-house. Uratemp says that each room is occupied under a licence and is not a dwelling-house. If Uratemp succeeds on either question in a case, its appeal in that case must be allowed.
On the first question, it is clear from the decision of the House of Lords in Street v Mountford [1985] A.C. 809 that normally if the occupier of residential premises is granted exclusive possession of them for a fixed or periodic term at a rent, he is a tenant. That is not an invariable rule. For example, where the right to exclusive possession is referable to a relationship other than that of landlord and tenant, such as that of employer and employee, the exclusive possession of a service occupier will not lead to the conclusion that a tenancy exists. But the present cases do not appear to me to fall within any recognised exception. The crucial matter is whether the occupier has exclusive possession. If the owner of the building is contractually obliged to provide attendance or services which require entry into the room, then the retention of a key for that purpose is a strong indication that the occupier of the room is only a lodger under a licence, without exclusive possession. The fact that the occupier chooses not to avail himself of the attendance or services to which he is entitled cannot convert a licence into a tenancy.
On the second question it is not in dispute that a single room may be a dwelling-house. For the purposes of the Rent Acts it has been said that a dwelling-house connotes a home (see, for example, Curl v Angelo [1948] 2 All E.R. 189 at p. 190 per Lord Greene M.R.). I do not doubt that the same applies to the term dwelling-house when used in the Housing Act 1988. In Westminster City Council v Clarke [1992] 2 A.C. 288 Lord Templeman (with whom the other members of the House of Lords agreed) said at pp. 298–9:
"Under the Rent Acts in order to create a letting of part of a house as a separate dwelling there must be an agreement by which the occupier has exclusive possession of essential living rooms of a separate dwelling house. Essential living rooms provide the necessary facilities for living, sleeping and cooking. Thus a bed-sitting room with cooking facilities may be a separate dwelling even though the bathroom and laundry facilities might be elsewhere and shared with other people."
In Parkins v Westminster City Council [1998] 1 EGLR 22 this court was concerned with the question whether Mr. Parkins had a secure tenancy of a bedroom which he exclusively occupied in a flat or of the flat parts of which (including a kitchen) he shared with another. The nub of the decision of Chadwick L.J. (with whom Kennedy and Judge L.JJ. agreed) is contained in this sentence (at p. 24 M):
"It is impossible to identify any property, whether the flat or a part of the flat, in respect of which both the conditions of essential living facilities and exclusive possession are satisfied."
Chadwick L.J. had earlier referred to what Lord Templeman had said in Westminster City Council v Clarke, which I have cited, as providing the test of a dwelling house. Chadwick L.J. said of the flat that it was capable of satisfying the requirement of essential living facilities, because it had the necessary facilities for living, sleeping and cooking. But he contrasted that with the bedroom which was not capable of satisfying that requirement, the reason being: "It has no facility for cooking" (p. 24 F). For that reason Chadwick L.J. accepted the Council's primary argument so far as it related to part of the flat, viz. that the bedroom could not be treated as a dwelling-house let as a separate dwelling because it did not satisfy the requirement of essential living facilities. Thus this court specifically decided the question whether the part of the flat constituted by the single bedroom was a dwelling house, and whilst it may not have been strictly necessary to decide whether cooking facilities were necessary for premises to constitute a dwelling-house, the reasoning for the decision on the bedroom was based on the absence of cooking facilities.
But even if Chadwick L.J.'s remarks are not part of the reasoning for his decision, I do not think it appropriate for this court to apply a different and inconsistent test, given that in Parkins this court was applying what was said in Westminster City Council v Clarke.
I confess that in the absence of authority and having regard to modern living practices and in particular the greater availability of restaurants, including fast food outlets, and of take-away food which has already been cooked, I would have thought it questionable whether a bed-sitting room need have cooking facilities to be the home of the occupier. But it is unnecessary to pursue those doubts in the light of those authorities. The Judge himself proceeded on the basis that cooking facilities were required for the room to be a dwelling-house.
I now turn to the circumstances of each of the two cases. They were heard successively and the Judge treated his observations on the law on one as applicable to the other case. But it has to be borne in mind that they are separate cases and that the facts in one case are not necessarily established for the other case.
Mr. Collins
Mr. Collins moved into the Viscount Hotel in January 1985. It is a hotel with 58 rooms, 15 of which were used for long-term residents and the remainder for visitors and tourists staying a few days only. The hotel was owned and managed from 1974 to 1994 by a Mr. Kelly. It was then sold to Spearmint Ltd. and managed by Mr. Kelly's former wife, Rita Kelly. Uratemp purchased the hotel in July 1998.
Mr. Collins saw an advertisement in a shop window for weekly lettings in the hotel. He asked the receptionist in the hotel if rooms were available on weekly terms and when told that they were, he chose Room 510 at £70 per week. The room contained a bed, and had a separate toilet and a shower and basin. He was told that breakfast was available in the hotel restaurant without paying extra. After about 18 months he moved to Room 501 at the request of the hotel, paying the same rent. He stayed in that room for about two years. In July 1989 he was told by the hotel that he must move to Room 403 so that Room 501 could be decorated. He complied. Room 403 is of some 72 square feet. It has a single bed, some furniture, a shower and a basin. Again the terms of his occupation of the room remained the same, save that in 1990 the weekly rent went up to £91. Since 1989 the rent for his room has been paid by way of housing benefit, the payments to the hotel being made directly by the local authority.
On 28 April 1998 Spearmint served a notice on Mr. Collins, purporting to determine what was called his licence and requiring him to vacate Room 403 on...
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