Holloway v Povey

Rent Act 1977, Schedule 15, Case 3 — Tenant’s appeal from county court judge’s order for possession of cottage — Appellant was the statutory tenant by second succession — After his father’s death in 1979 and during his mother’s lifetime the cottage garden, which his father had kept in excellent order, became seriously neglected and it deteriorated — Appellant never did a stroke of work in the garden and his mother was in poor health — Requests from the landlords to improve the garden were ignored — Appellant’s mother died in April 1983 and appellant succeeded to the tenancy — He made no response to requests to clear up the garden and proceedings for possession under Case 3 were brought against him — The county court judge found that the garden had deteriorated owing to the appellant’s neglect and made the order for possession — Held, first, that the judge was entitled to make a finding of deterioration, even though only the period from April 1983 could be taken into account; a whole season’s growth had taken place with no attempt to control it — Secondly, however, the question arose as to whether the judge had exercised his discretion correctly in dispossessing the appellant — The Court of Appeal could intervene only if the judge had taken something into account which he should not have done or failed to take a material factor into account or exercised his discretion perversely — Held that the judge had exercised his discretion under a misapprehension as to the deterioration for which the appellant was responsible — His judgment indicated that he considered the appellant to have been in default since 1979, whereas his legal responsibility dated from April 1983 only — Appeal allowed and judge’s order varied This was an appeal by the tenant from a decision of Judge Blomefield at Newbury County Court granting an order for possession of a cottage to the landlords under Case 3 of Schedule 15 to the Rent Act 1977. Steven D Whitaker (instructed by Burton Yeates & Hart, agents for Olding & Bann, of Newbury) appeared on behalf of the appellant; W Norris (instructed by Penningtons) represented the respondent. Giving judgment, GRIFFITHS LJ said: This is an appeal by a tenant from the judgment of His Honour Judge Blomefield, given on November 25 of last year, in which he made an order for possession in favour of the landlords under the provisions of Case 3 of Schedule 15 to the Rent Act 1977. The facts of the case are briefly as follows: In the year 1958 the present appellant’s father was given the tenancy of a cottage by a Major Bostock. The cottage was subject to the provisions of the Rent Act, and in the course of time the appellant’s father became a statutory tenant. According to the tenant’s evidence, when they were given the tenancy of the cottage it was in a poor state of repair and, more importantly, the garden itself was very overgrown. But his father was a very keen gardener. He cultivated the garden and, at the time of his death in 1979, the garden was undoubtedly in excellent order. The appellant had lived with his parents in the cottage since they moved in; on the father’s death, the mother became the statutory tenant, but she died in April 1983, and the tenancy then descended to the present appellant as the son. From the time of the father’s death, the garden was neglected. The person who obviously should have looked after it was the appellant, but he never did a stroke of work in the garden and it got progressively worse and worse. By this time Major Bostock had died and trustees were managing the estate. The whole estate was sold save this one cottage and the adjoining cottage because they116 were a pair of agricultural cottages. The adjoining cottage had been empty for some three or four years by the date of the trial, and the garden of that cottage had been allowed to become very overgrown. The trustees did not like the deterioration in the garden of the cottage occupied by Mr Povey and his mother, and they wrote to Mrs Povey in October 1980 asking her to improve the state of her garden. They also wrote to her again twice in September 1981. By this time the mother was failing in health and her eyesight was very poor. This appellant himself read the letters to his mother but he was not prepared to do anything about it at all and his mother, of course, one infers was in poor health and not able to do anything about it and so the garden just became overgrown year after year. The appellant also said — and I see some force in this — that he thought than when his parents died he would have no security of tenure and would have to leave, and indeed that is the attitude which the trustees took right up to June 1983 when, presumably as a result of the advice of their solicitors, they appreciated that this appellant had succeeded to the statutory tenancy of his mother. When the appellant became a statutory tenant in April 1983, the trustees wrote again, calling upon him to take steps to put the garden into good order and also to take steps to clear up the inside of the cottage which was in a filthy condition. They wrote, on June 16 1983, through their solicitors. At the time they acknowledged he was a statutory tenant and served a schedule of work on him and said: ‘Our clients require that the garden is tidied and put into a state of reasonable cultivation, and the inside of the house cleaned and left in a reasonably tidy state within 42 days of today’s date.’ There was certainly no response to that request although it would appear that the appellant did seek help from the Department of Health and Social Security to provide him with some money to do some of the interior decoration, and his solicitors wrote on July 19 asking for some further time. But by August 4, absolutely nothing having been done, the landlords ran out of patience and their solicitors wrote to the appellant’s solicitors pointing out that nothing had been done and that they had received instructions to commence proceedings, which they did, on the following day, August 5, claiming possession under Case 3. One would have thought that that would have galvanised the appellant into some sort of action, but apart from purchasing the equipment — with which he undoubtedly could have put the garden into good order — on August 13, two quite expensive pieces of equipment, namely a chain saw and a form of brush cutter, costing well over £200, he did nothing. He did not even use the equipment. The case had been set for hearing on October 3, but it was adjourned to allow the appellant to get legal aid. Still he did nothing and, by the time of the hearing on November 25, he had still done absolutely nothing. It is not surprising, in those circumstances, that he did not attract much sympathy for his attitude from the learned judge. The first question that arises in this appeal is whether the learned judge, on the evidence, was entitled to make a finding that the garden of the cottage had deteriorated by reason of the neglect or default of the appellant. It is to be remembered that the appellant did not become the statutory tenant until April 1983, and by that time the garden was clearly in a very neglected and overgrown condition. Mr Whitaker has submitted that when one looks at the wording of Case 3 it is clear that the learned judge was entitled to take into account only the period of time between April and November 1983 as the relevant period for the purpose of considering whether there had been any deterioration. Case 3 provides: Where the condition of the dwelling-house has, in the opinion of the court, deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any person residing or lodging with him or any subtenant of his and, in the case of any act of waste by, or the neglect or default of, a person lodging with the tenant or a subtenant of his, where the court is satisfied that the tenant has not before the making of the order in question, taken such steps as he ought reasonably to have taken for the removal of the lodger or subtenant as the case may be. By section 26, subsection (1), of the Act ‘dwelling-house’ is deemed to include a garden, provide it does not exceed 2 acres. In my opinion the learned judge in this case was entitled, on the evidence, to find that there had been deterioration within the meaning of Case 3. It is true that this tenant took over an overgrown garden, but he had allowed a whole season’s growth to take place without any attempt to control it or to tidy the garden in any way whatsoever and, in my view, the court is fully entitled to take judicial knowledge that a whole season’s growth uncontrolled in a garden is sufficient to cause deterioration to that garden. I therefore conclude that the learned judge was entitled to find that there was deterioration. But that then brings me to the next and more difficult point in this appeal, and that is whether the learned judge exercised his discretion correctly in deciding that this appellant, who had lived in this cottage since 1958, should be ejected from possession because he had been so foolish as not to take any active steps to cut back the garden of the cottage during that summer and up to the date of the hearing. I am bound to say that I find the appellant’s behaviour virtually inexplicable. He had apparently bought himself, at considerable expense as an unemployed man, the necessary equipment but he adopted what I can only conceive to be a thoroughly pig-headed attitude in deciding that he was not going to use it or to do anything about the garden in case an order for possession was made against him. This court must guard against interfering with the discretion of a judge merely because it feels that it might have exercised the discretion in a different manner. I say straight away that if I had been exercising this discretion, I should have given this man a chance to come to his senses and would have suspended the order to give him a chance to clean up the garden. It comes as no surprise to hear that he has come to his senses and has in fact tidied up the garden before the hearing of this appeal. But this court can intervene only if it can be shown that the learned judge had either taken something into account which he should not have done or alternatively failed to take into account a material factor in the exercise of his discretion. The only other possible ground for interference is if it can be said that the exercise of his discretion was perverse. After some anxiety, I have come to the conclusion that it has been demonstrated in this case that the learned judge did approach the exercise of his discretion upon a misapprehension of the true nature of the deterioration for which this tenant was, in law, responsible. In the course of his judgment the learned judge referred repeatedly to the fact that this garden had been deteriorating since 1979 and that the appellant, being a man, was the only person who could reasonably have been expected to keep it under control. I have come to the conclusion that the learned judge approached this matter upon the basis that indeed it was the appellant who was, in law, and in fact, responsible for the deterioration which had occurred since 1979. There are two particular passages in his judgment which lead me to that conclusion. At p 41 he said: ‘What has to be considered is the state of the garden as it has been since 1979.’  That was not the primary consideration which had to be considered. The primary consideration was the state of the garden since April 1983. He then goes on: ‘After Mr Povey, senior, died nothing has been done to it at all. The warnings started in 1980 and throughout that period the defendant has done nothing at all despite the formal warning, and the result is, as Mr Barton said to me, one has a job to see the house from the road.’ Now in law, whatever one may say on the moral issue of helping his mother, this appellant was under no duty whatsoever to do anything to the garden until such time as he became the statutory tenant. Then again, returning to the matter, towards the end of his judgment the learned judge said this: There is in my judgment no question but that the garden has been totally neglected since 1979. For three years of that period the present defendant though not the tenant but the prospective heir to the tenancy, was the person who one might have expected to do something at least to the garden. I have no hesitation in finding as far as Case 3 is concerned that the deterioration in the garden has been due to the neglect or default of the tenant as he now is and has been for the last seven months. I can only read that as attributing the deterioration of the garden as a matter of law to the fault of this tenant from 1979. I think for myself that that is an approach which fails to distinguish between his legal responsibility from April 1983 and his moral responsibility from the death of his father in 1979. Accordingly, in my view, it enables this court to re-examine the question of the exercise of the discretion. Mr Norris has called to our attention a decision of the Court of117 Appeal in the case of Rhodes v Cornford [1947] 2 All ER 601, in which a new trial was ordered where the court was disposed to interfere with the exercise of a judge’s discretion, but I do not think that that is necessary in this case. All the facts are before the court, and it would put the trustees and the Legal Aid Fund to wholly unnecessary expense to have a new trial. In my view, it was not reasonable to order this man to give up possession of the property without giving him a chance to tidy up the garden because that was the limit of his obligation. There is no suggestion here that the state of the garden threatened the structure of the premises themselves. Accordingly I would allow this appeal and alter the judge’s order and suspend the order for possession for one year upon the condition that this appellant, during that period, brings the garden into a reasonable condition of tidiness and keeps it so for one year. I would add this, that although I do not think it reasonable to suspend the order for any further period of time, if in fact he chooses to neglect his obligations in further years, that is a factor which would undoubtedly be taken into account in deciding whether or not an order for possession ought to be made against him. If he demonstrated, by such conduct, that he had no intention of honouring his obligations as a tenant, it would no doubt be reasonable to make the order. For these reasons I would allow this appeal. SLADE LJ agreed that the appeal should be allowed and with the reasons given and the form of order proposed by Griffiths LJ. The appeal was allowed with costs. The order for possession in 28 days was stayed for one year and would then lapse if the appellant had brought the garden up to reasonable condition. Legal aid taxation of appellant’s costs was ordered.