Lohan v Hilton

Notice to quit — Application for possession order — Alternative accommodation offered — Plaintiff needing property for occupation as residence for himself — Whether suitable alternative accommodation under the Rent Act 1977 — Recorder holding defendant to give possession — Court of Appeal upholding that decision — Appeal dismissedThe plaintiff landlord granted the tenancy of 2 Melbourne Drive, Melton Mowbray (“the property”), to the defendant tenant in September 1983. The property was a three-bed-roomed bungalow with a lounge, kitchen and bathroom and a double garage with front and back gardens situated in a culde-sac in a private estate. It suffered from dampness, but the evidence was that it could be cured. The plaintiff and his wife lived in accommodation provided by his employer, in which the only WC was upstairs and the plaintiff’s wife was unable to get upstairs. The plaintiff claimed that he needed the property for accommodation for his wife because it had a bathroom and WC downstairs. He gave the appellant notice to quit in 1992 to expire in July 1993. In an action for possession the defendant served a defence and counterclaim claiming damages for breach of the implied covenant to keep the premises in repair. The recorder made an order that the defendant give up possession upon the undertaking of the plaintiff to offer to the defendant a new tenancy of another property at 46 Rudbeck Avenue, Melton Mowbray. That was a terraced house. The judge cited the case of Hill v Rochard [1983] 2 All ER 21 in deciding whether the accommodation was “suitable” and stating that the court only paid regard to the housing needs of the particular tenant and they did not include the ability to enjoy a particular lifestyle and amenities afforded by his existing accommodation. The defendant appealed against that decision arguing, inter alia, that the court had failed to consider “suitable alternative accommodation” under the Rent Act 1977, Schedule 15, Part IV in that the judge did not compare the extent and character of the two properties. The house offered at 42 Rudbeck Avenue was a terraced house without a garage situated on a feeder road and forming part of a council estate; and that the plaintiff’s wife, who suffered from arthritis, could not live in a damp property. Held The appeal was dismissed. 1. The plaintiff had made out his case under Case 9 of Schedule 15 to the Rent Act 1977, namely that he reasonably required the bungalow for occupation as a residence for himself. 2. The alternative accommodation offered by the plaintiff was perfectly adequate and reasonably suitable to satisfy the housing needs of the defendant’s family according to the evidence of two surveyors. 3. The ground for possession based upon the plaintiff’s need for the property for himself in order to house his wife was as plain as anything could be. This was an appeal which should never have been brought with the consequence that the plaintiff, requiring the property for the benefit of a wife in very poor health, had been kept out without any particular redress that he could ask for, with manifest inconvenience to his family. 4. Because it was a hopeless appeal the court was concerned that legal aid should have been granted with public money used for the purpose. It was a matter which was of increasing concern as to the number of cases coming before the Court of Appeal, which ought not to have been brought where public money had been spent. Mohammed Khalil Zaman (instructed by Moss Latham & Toone, of Melton Mowbray) appeared for the appellant tenant; Godfrey Mackenzie Jarand (instructed by Page Flavell, of Melton Mowbray) appeared for the respondent landlord.