Lewis-Graham and another v Conacher

Rent Act 1977 — Resident landlord — Whether two adjoining dwellings were at all material times one building for purposes of section 12 of the Rent Act 1977 — Appeal by tenant dismissed The plaintiff landlords were the owners of a semi-detached house to which a predecessor in title had added an extension by way of a granny flat and garage — In July 1987 the plaintiffs let a room in the extension to the appellant — At the time of the grant of that tenancy there was a common gas, electricity and water supply to the house and extension, although the intercommunicating doors were locked and sealed with sound insulation as the extension had its own front door — A notice to quit was served on the appellant expiring in August 1990 — Prior to the notice to quit expiring the plaintiffs carried out building works blocking off the two doorways between the properties — The trial judge found that although the plaintiffs initiated work to create two buildings, the work to separate the two properties had not been completed at the date of the expiration of the notice to quit and at the date of the trial the properties still constituted one building — The tenant appealed, contending that effectively all the work to create two separate buildings had occurred Held: The question as to whether there was one building or two was a question of fact for the trial judge — That question in the present case was a borderline one — The trial judge was entitled to take into account that until the time of the building works the properties were plainly one building and the building works were not so extensive as to make a great difference — The sealing of the doors was a difference in kind rather than in substance — The trial judge was entitled to hold that the works to create two separate buildings had not been completed and that the tenancy was not a protected tenancy, and therefore did not become a statutory tenancy, by virtue of section 12 of the Rent Act 1977 The following case is referred to in this report. Bardrick v Haycock (1976) 31 P&CR 420; sub nom Bardrick v Vernon [1976] EGD 321; (1976) 239 EG 427, [1976] 2 EGLR 65, CA This was an appeal by Marjorie Conacher from the judgment of Judge Stockdale, sitting at Barnet County Court, when he made an order for possession of 198a Nether Street, Finchley, London N3, in favour of the landlords, Derek and Patricia Lewis-Graham. Philip Walter (instructed by S Newman & Co) appeared for the appellant; James Simpson (instructed by David D Lewis & Co) represented the respondents. Giving the first judgment at the invitation of Lloyd LJ, STUART-SMITH LJ said: This is an appeal from the judgment of Judge Stockdale, sitting at Barnet County Court, given on July 10 1991, when he made an order for possession of premises known as 198a Nether Street, London N3, and an order for mesne profits in the sum of £2,931.75. The defendant tenant now appeals against that judgment. The learned judge found in favour of the respondent landlords on two grounds: first, that the premises were not within the protection of the Rent Acts by virtue of section 12 of the Rent Act 1977; and, second, that the plaintiffs reasonably required possession of the residence for themselves, that is to say, for the female plaintiff, who was the landlady, and her family, and that it was reasonable to make the order under Case 9 of the Rent Acts. In order to succeed in this appeal the appellant must succeed on both those grounds. We have heard the first point argued by Mr Walter on behalf of the tenant and, in view of the conclusion which we have formed, it has been unnecessary to consider the second point. Shortly put, the issue on the first point under section 12 of the Rent Act 1977 is whether 198 and 198a Nether Street are and were at all material times one building or whether, by virtue of some work which was done in the summer of 1990, they had become two buildings. The history of the premises is as follows. No 198 is part of two semi-detached houses. It is on the left-hand side as you look at it from the street. It was built in about 1920. At some time before the plaintiffs bought the house an extension was added. It seems that the purpose of the extension was to provide a granny flat and to add a garage. The extension was formed by means of building two rooms between the existing no 198 and the garage. Those rooms were roofed by a flat roof. There was then a room above the garage with a gabled roof to tie in with the other gables of the house. Originally there was a room on the ground floor, a garage next to it, an outside entrance, and two rooms above. The plaintiff, Mrs Lewis-Graham, and her mother bought the house in 1969. At that time she was not married to Mr Lewis-Graham. She lived there with her son and her mother lived in the granny flat. At that time there were communicating doors at both ground-floor and first-floor levels from the original no 198 to what became no 198a. But it seems that Mrs Lewis-Graham’s mother wanted to receive her own mail, and for that reason the entrance door of the granny flat was called 198a so that she should have a separate address. Towards the end of her life she lived on the ground floor. Mrs Lewis-Graham’s mother died in 1980. Mrs Lewis-Graham then became the sole owner and lived in the premises with her husband. At that time there was one central heating system for the whole building, no 198 and no 198a. There was a common gas supply, a common electricity supply and a common water supply. The house was singly rated and was subject to a single water rate. The judge found — and there is no dispute about this — that at that stage and, indeed, at the time of the grant of the tenancy to the defendant there was no question but that it was one building. On the mother’s death, the plaintiffs decided to let both the rooms in no 198a, and for that purpose the intercommunicating doors between no 198 and no 198a were locked and sealed with sound insulation in such a way that it was not possible to pass through from no 198 to no 198a. Other than that, everything remained as before. The judge concluded that the sealing up of those doors made no difference; the building was still one building. On July 24 1987 the downstairs room was let to the defendant by an agreement described as ‘Furnished accommodation 198a Nether Street . . . (Part of 198 Nether Street)’, and it was a furnished letting. By 1990 the plaintiffs’ other ventures into the property market became unsuccessful and they were in considerable financial difficulties. They decided that they would make use of a planning permission which had already112 been granted and make a separate dwelling of 198a. For that purpose certain building works were done. Notice to quit was served on the defendant, which expired in August 1990. The learned judge rightly directed himself that the issue with which he had to be concerned was whether at all times during the existence of the tenancy the building was one building or whether by reason of the building works which were carried out in the summer of 1990 what had in fact been one building had become two buildings. The learned judge heard evidence, and his findings of fact are to be found at pp 15-24 of the bundle. He said: Mr O’Hara [the builder] was less competent than Mr Gardiner and seemed determined to go about his contract in his own way, disregarding his client’s wishes and instructions. Mr and Mrs Lewis-Graham say he was told not to do the work in the defendant’s room at an early stage until the room became available. Yet he chose to block off the two doorways between the properties at an early stage. It is not finished yet but, before the notice to quit had expired, he sealed off with one layer of materials the gaps linking the houses. It is said by Mr Simpson that this is only temporary and can be knocked down. One can always knock holes in walls. People are constantly knocking down walls and when they do so they often have to put an RSJ in but an RSJ would not be called for here. However, it is not difficult to reverse the works where a door has been there before. I am satisfied that the work to separate the two properties has not yet been completed apart from the central heating. The works in the defendant’s bedroom are not yet completed as the defendant’s washing and cooking facilities remain and there is painting and decorating to be done. The works in the former garage are completed. What remains to link the two houses?  There is the gas central heating. So far as the electricity is concerned there is no direct evidence either of separate supplies or of separate meters. It may well still come in via 198. I do not know what the situation was regarding 198a — vis-a-vis 198 but there has been no reason to cut the supply off. I was reminded of what Mrs Lewis-Graham said but there is nothing to indicate a separate supply. There was no direct evidence about it. There is nothing to enable me to decide definitely. Rating is no longer relevant but in the past rates and water rates were one and title at the Land Registry remains joint. I accept however that there is an intention on the part of the plaintiffs to separate the titles to 198 and 198a and to have two separate buildings. Had that separation been effected by the expiry of the notice to quit?  It is possible to complete severance days before expiry of a notice to quit and then the section 12 exemption will go. Counsel are agreed that there must be one building on expiry of the notice to quit for section 12 exemption to prevent the creation of a statutory tenancy. The landlord to get the benefit of section 12 has to show there was one building not only at the time when the tenancy was granted but also at the end of the tenancy. Had separation been completed between 198 and 198a to a sufficient extent by the time the notice to quit expired?  Well, it had got pretty close by August 1990. Had the defendant co-operated it might be that the works would have been completed and title separated. However, the works were not completed by August 1990. The back garden is still as one; the front is still as one. I find as a matter of fact that complete separation had not yet occurred and it had not become two buildings by the end of August 1990. It has still not occurred and they are still one building today. I find the resident landlords remained the resident landlords at all times and therefore it is not a protected tenancy and no statutory tenancy sprang up. Philip Walter, on behalf of the appellant, has criticised that finding. He submits that effectively all the work had been done. He concedes that the central heating had not been separated, but he says that that is de minimis. He submits that the learned judge was wrong in his conclusion about the electricity, because in the course of her cross-examination Mrs Lewis-Graham did not refer to that matter as being something which was outstanding, and he submits that in order for the kitchen to be installed upstairs there must have been a separate supply installed downstairs. For my part, I do not accept that submission at all. He says that other matters, such as the removal of the shower from the appellant’s bedroom, which was something which was due to take place but had not taken place, was something which could not make what was two buildings into one and the fact that there was still redecoration work to be done again did not alter that position. The question whether it was one building or two was a question of fact for the county court judge. That was held by this court in Bardrick v Haycock (1976) 31 P&CR 420*, and I think it would be helpful to read a passage in the judgment of Scarman LJ. He said at p 424: The English word ‘building’ covers an immense range of all sorts of structures. It is an ordinary English word, and its meaning must therefore be a question of fact, always assuming that the court directs itself correctly as to the intention and meaning of the statute which uses it. As a matter of law, to give a defined or precise meaning to the word ‘building’ is an impossibility. It is beyond the capacity of even the most consummate master of the English language to do so. This itself is, in my judgment, an indication that Parliament is leaving the question of fact to the judge. One must, moreover, remember that the county court judge is likely to be in the best possible position to determine within the area of his jurisdiction what are the housing circumstances, what is the local situation, and the way in which he should approach an answer to this question of fact. I have no doubt that the intention of Parliament in enacting section 5A — the predecessor of section 12 — was to relieve landlords where it was reasonable to do so. One must remember that the Act of 1974 introduced furnished tenancies into Rent Act control. This meant that resident landlords, who had under the earlier legislation counted on being able to require furnished tenants in the same building as that in which they lived to leave, could no longer do so. Therefore, the mischief at which the section was aimed was the mischief of that sort of social embarrassment arising out of close proximity — close proximity which the landlord had accepted in the belief that he could bring it to an end at any time allowed by the contract of tenancy. *Editors’ note: Also reported at (1976) 239 EG 427, [1976] 2 EGLR 65. In my judgment, the question of whether this had become two separate buildings was a borderline one, but the learned judge was entitled to take into account that until the time of the building works it was plainly one building. The building works were not so extensive as to make a great difference. The sealing up of the doors was a difference in kind rather than in substance, because previously no one had been able to get through, and it seems to me plain that the learned judge was right in holding that the works had not yet been completed. It was accepted by Mr Walter that the central heating had not been connected. That, in my judgment, was not a de minimis matter. There was still decorative work to be done, although that may be not so significant, and the learned judge found that the gardens had not yet been separated as had been originally intended. For my part I am not entirely convinced that, even when the building work was finished, this would have amounted to two buildings rather than one. Where something has been built as an extension to an existing house, where the outer walls are continuous and the roofs are contiguous, it may be that it still remains as one building notwithstanding that it was intended to be two separate dwellings. Be that as it may, for my part I would not interfere with the learned judge’s finding of fact. I do not think that the criticisms made by Mr Walter affect this decision, and I would dismiss the appeal. LLOYD LJ agreed and did not add anything. Appeal dismissed.