Christophedis v Cuming

Flat let with furniture held protected–County court judge entitled to reach this conclusion on facts as to value of furniture despite clear references to a furnished letting in correspondence This was an appeal by Mrs Mary Christophedis, owner of 60 Kensington Park Road, Notting Hill, London W, from a judgment of Judge Leslie at Bloomsbury and Marylebone County Court on April 29 1975, dismissing her claim against her tenant, Mr Michael Cuming, for possession of premises on the lower-ground floor of her property, known as 60a Kensington Park Road. Mr R Moshi (instructed by Graham Harvey & Co) appeared for the appellant, and Mr J Tackaberry (instructed by Gerald A Waller & Co) represented the respondent. 63 Giving the first judgment, ORR LJ said that 60a Kensington Park Road consisted of two rooms let to the respondent under a written agreement dated July 11 1974, but it was common ground that the agreement was in fact entered into and became effective from January 10 1974. It was for a period of one year less one day at a monthly rent of £104 (£1,248 per annum). The premises were let together with fixtures, furniture and effects more particularly specified in an inventory. This showed that the furniture supplied consisted of furniture as such, carpets, linoleum, pictures, a refrigerator, a cooker, china, glass, cutlery and other items. There was evidence at the hearing by one of the witnesses that there was everything provided in the two rooms save sheets. In February 1974 the respondent’s wife wrote to the appellant saying that her husband was sending a letter through solicitors ‘agreeing that we abide by your terms of renting 60a as a furnished flat.’  Such a letter was received, and confirmed that Mr Cuming had asked for it to be written agreeing on his behalf to take 60a on lease as a furnished flat. There was no doubt that that was what the landlord wished and what the tenant was at that time agreeing to. Subsequently, however, Mr Cuming claimed a protected tenancy on the basis that the amount of the rent which was fairly attributable to the use of the furniture having regard to the value of that use to him (the respondent) did not form a substantial part of the whole rent. The landlord sued for possession. In the county court each side called a valuer. The valuer for the landlord made a valuation of £347 for the furniture in April 1974, but that did not include certain items which he was not at that time shown. He estimated that the value in January of that year would have been 10 or 15 per cent higher. He gave evidence that the flat was a furnished flat in the general sense in which that word would be used. The valuer for the tenant made a valuation of £154, but that omitted one item of the value of £8. It emerged in the course of his evidence that the basis on which he had made his valuation was a wrong one. He had made it on the basis of what would be considered equitable between landlord and tenant and not on the basis of replacement value. His evidence was that if replacement value was taken the figure would be 15 per cent higher. The county court judge himself visited the premises. Each side advanced what was really the same kind of calculation, which was a conventional one in cases of this kind — namely to ascertain the present value of the furniture, allow for depreciation since the commencement of the tenancy, and then to arrive at an appropriate rental figure to be attributed to the furniture. In his judgment the judge referred to the rent as having been a high one. He had no doubt that the parties had regarded the letting as a furnished letting. He then referred to the figures of the two valuations, and intimated that having viewed the furniture he considered that one had only to look at it to see it was not worth very much. Having seen it, he preferred the evidence of the tenant’s valuer. He was prepared to adjust his valuation to £250, and arrived at a figure of £90 as being the annual value of the furniture to the tenant by totalling 20 per cent (£50) on the £250 for depreciation, interest on £250 of 14 per cent (£35) and something for other matters. The £90 he found to be 7 1/4 per cent of the annual rent of £1,250. He concluded by saying that having taken into account everything he could in favour of the landlord in making the calculations, it was impossible to find that this was a furnished letting for the purposes of section 2 of the Rent Act 1968. He held that the amount of rent which was fairly attributable to the use of the furniture having regard to the value of that use to the respondent did not form a substantial part of the whole rent, though he described the case as ‘rather near the borderline.’ It was now argued on behalf of the landlord that the judge was wrong in failing to pay regard to the fact that it was the intention of the parties, and certainly the wish of the landlord, that it should be a furnished letting. Counsel pointed out that in the evidence there was a reference to the rent tribunal, and that that indicated an application having been made by the tenant to the tribunal. But that, as he (his Lordship) saw matters, was no more than an aspect of what the judge took into account, namely that the parties did regard this as being a furnished letting. It was further alleged that the judge was wrong in that he adopted a mathematical formula without having regard to the broader considerations involved in the case. It was clear from Palser v Grinling [1948] AC 291, the well-known case on this subject in the House of Lords, that it was not obligatory to adopt some particular form of mathematical formula and that the court must look at the matter in a broad way. That was reinforced by the judgment of Scarman LJ in Woodward v Docherty [1974] 1 WLR 966. In his (Orr LJ’s) judgment this ground of appeal was not well founded. The judge, while applying a mathematical formula, did so after taking a broad view based in part upon his having seen the furniture in question. He reminded himself of and made allowance for other factors involved in the case. No criticism could be made of his judgment in that respect. The remaining question was whether on the facts as he found them it could be said that he was wrong in holding that 7 1/4 per cent was not a substantial part of the whole rent. He (his Lordship) thought that finding entirely justified; it was impossible to say that the judge was wrong. For these reasons the appeal failed and should be dismissed. Agreeing, STEPHENSON LJ said that he was not persuaded that the judge left any relevant factor out of consideration or failed to give any relevant factor its proper weight. Nor was he persuaded that he (the judge) failed to exercise a broad judgment or was wrong in applying the relevant provisions of the Rent Act to protect this tenant, sore though the landlord might naturally feel over the tenant’s decision to rely on those provisions after what he had agreed in January 1974. Also agreeing, CAIRNS LJ said that he found the judgment of Judge Leslie entirely convincing and quite free from error. The judge made a calculation of the kind which the Court of Appeal held in Woodward v Docherty to be proper in considering whether the amount of rent fairly attributable to the furniture, having regard to the value to the tenant, formed a substantial part of the whole rent. He also made the broad approach called for by the House of Lords in Palser v Grinling in so far as he took account of the fact that the parties regarded the letting as a furnished letting and he went himself and looked at the furniture and formed a layman’s view that the furniture was not worth very much, not what one would expect in a £1,250-a-year flat. The appeal was dismissed with costs.