Lyons v Caffery

Rent Act 1977, section 12 — Whether landlord was a ‘resident landlord’ — Tenant’s appeal from county court judge’s decision that landlord was resident, so that he could recover possession on the basis of a restricted contract — Before going abroad landlord had occupied the basement of his house, the basement consisting of a bed-sitting-room, a sun-room and a kitchen, bathroom and lavatory — In his absence abroad his mother, who occupied a bed-sitting-room on the ground floor, let to the tenant the basement bed-sitting-room, with shared use of the kitchen, bathroom and lavatory — On his return from abroad the landlord, who was upset at his mother’s action, took over the ground-floor bed-sitting-room from his mother, who went to live elsewhere — When the landlord claimed possession of the basement room occupied by the tenant the latter contested the claim on the ground that the landlord was not a resident landlord because the basement bed-sitting-room, which was essential to constitute a ‘dwelling-house’ in the basement, was the very room occupied by the tenant — Landlord argued that the ground-floor bed-sitting-room which had been occupied by his mother, or alternatively the sun-room in the basement (really a conservatory), was part of his ‘dwelling-house’ as a resident landlord — Held that on the evidence before the county court judge it was not possible to treat either the ground-floor room or the sun-room in the basement as part of the landlord’s ‘dwelling-house’ for the purpose of section 12 — Consequently the landlord did not ‘occupy as his residence another dwelling-house’ — Tenant’s appeal allowed This was an appeal by the tenant, Brian Caffery, from a decision of Judge Honig at Bloomsbury and Marylebone County Court in favour of the landlord, Patrick Joseph Lyons, in a claim by the latter for possession of a basement bed-sitting-room at 42 St Luke’s Road, London W11. Adrian Fulford (instructed by North Kensington Law Centre) appeared on behalf of the appellant tenant; Nigel Mahoney (instructed by Chas E Roberts & Boyce) represented the respondent landlord. Giving the first judgment at the invitation of Cumming-Bruce LJ, DAME ELIZABETH LANE said: This is an appeal by a defendant tenant against an order of His Honour Judge Honig made in the Bloomsbury and Marylebone County Court on March 2 of this year, whereby he ordered that the plaintiff landlord should recover from the defendant possession of a basement room, 42 St Luke’s Road, London W11. Procedurally the case was not without complications. The proceedings were originally commenced by the plaintiff’s mother, Mrs Lyons, and the particulars of claim were amended to add her son, the present plaintiff, as second plaintiff. Further amendment achieved the correct position, with the plaintiff as sole plaintiff claiming possession as a resident landlord under section 12 of the Rent Act 1977. He also claimed possession under three other statutory provisions, but as the learned judge dismissed the claim under all three of the alternative grounds and there is no counternotice on that part of the case, it is unnecessary for me to deal with those alternative grounds, and I refer only to the claim under section 12, upon which the plaintiff succeeded. As to the material facts, in 1965 the plaintiff bought the house containing the room in question. But in pursuance of his musical studies he was in the United States of America between the end of February 1979 and February 12 1982. On the latter date he returned to this country with the intention of pursuing further such studies here and of living in his house. The learned judge found that since buying the house in 1965 he had always regarded it as his home and as the residence he intended to occupy. His temporary absence does not appear to have affected the position, save as to what occurred with regard to this room during that absence. The defendant came on the scene in 1980 after the plaintiff had departed for the United States, leaving his mother living in the house and as his agent for letting other rooms in it. She let to the defendant the basement bed-sitting-room with the shared use of the kitchen, bathroom and lavatory, which were also in the basement. We are concerned in this case with section 12 of the Rent Act 1977, which reads as follows: (1)  Subject to subsection (2) below, a tenancy of a dwelling-house granted on or after 14th August 1974 shall not be a protected tenancy at any time if and then paragraph (b) of section 12(1), as it was at the material time and before amendment, reads in this way the tenancy was granted by a person who, at the time that he granted it, occupied as his residence another dwelling-house which also forms part of that building. The learned judge referred to the relevant section and said this: It must be remembered that the dwelling-house which we are here concerned with is that which the defendant has, ie the basement front room. When this tenancy was granted, the plaintiff, in order to become a resident landlord, must have occupied ‘another dwelling-house’ which also formed part of that building. It is clear from this section that if it was only the single room which he occupied, he could not rely on section 12, but that he could rely on it if he occupied another dwelling-house. Therefore I must decide what he actually had — the front room only or the whole basement?  I find that the plaintiff occupied the whole basement if he occupied anything, but did he occupy it as his residence? The learned judge went on to deal with the facts of the plaintiff’s absence abroad and so on. He said: There was sufficient animus possidendi and corpus possessionis in the plaintiff to make him fall within the definition of a person who occupied the whole basement as a residence when the tenancy was granted to the defendant. The facts were that before the plaintiff went to the United States in 1979 he had occupied and resided in the basement. This consisted of a bed-sitting-room, being the one let to the defendant, a sun-room and a kitchen, bathroom and lavatory which the defendant was entitled to use, as I have mentioned. The plaintiff’s mother occupied a bed-sitting-room on the ground floor. They both used the kitchen, bathroom and lavatory in the basement. When the plaintiff returned from the United States, because the defendant had not complied with a notice to quit but was still occupying the bed-sitting-room, the plaintiff occupied the ground-floor room which his mother had been103 using and she went to live elsewhere. He was upset on his return to find that his mother had let his room. Mr Fulford on behalf of the defendant submitted that the plaintiff had failed to show that he was entitled to possession, as at the time of the letting he had not occupied another residence in the same building, because the essential living and sleeping room in the basement was the very one let to the defendant. Mr Fulford drew our attention to paragraph 5 of Schedule 2 to the Act, which reads as follows: For the purposes of section 12, a person shall be treated as occupying a dwelling-house as his residence if, so far as the nature of the case allows, he fulfils the same conditions as, by virtue of section 2(3) of this Act, are required to be fulfilled by a statutory tenant of a dwelling-house. Mr Fulford referred us to Curl v Angelo, a Court of Appeal case, [1948] 2 All ER 189, and to Brown v Brash [1948] 2 KB 247. They are helpful authorities on general principles, but I do not think that I need cite any passages therefrom which were relied upon. Mr Mahoney made two main submissions: first, that the dwelling-house in which the plaintiff had resided and into which he intended to return consisted of the basement and all its rooms and also of the ground-floor room occupied by the plaintiff’s mother until the plaintiff returned from the United States and she left. The mother had never been a tenant of that room, but was a licensee, and Mr Mahoney’s submission was that although, as a matter of convenience or whatever, the son had used the basement room and the mother that on the ground floor, both rooms formed part of the single residence of the plaintiff and that there were not two separate dwelling-houses, one occupied by the plaintiff and the other by his mother — it was all one. Further that the learned judge in referring to the basement alone as the residence of the plaintiff was in error, although it is plain on the authorities that without the bed-sitting-room in the basement or any other room usable as such, the basement could not constitute a dwelling-house. Mr Mahoney’s second point was that, accepting the necessity for such a room, there was another room in the basement capable of being so used, namely the sun-room. Mr Fulford had opened his submissions by referring to the evidence before the learned judge relating to the sun-room. The mother had used it as a place in which to grow plants; the defendant had used it, apparently without any right so to do, as a workroom, and a Mr Jones had slept in it for a short period or periods as an alternative to sleeping, as he had been allowed by the mother to do, on the kitchen floor. Mr Mahoney submitted that if there is this other room which can be used, then that suffices to create a dwelling-house occupied as his residence by the plaintiff. In short, if one takes the sun-room into account, then there was a complete dwelling-house for the purposes of the statute to which the plaintiff was entitled to return. Let me deal with the sun-room point first. I have referred to most, if not all, of the evidence about the sun-room. It was not suggested at the hearing that this was a potential second bed-sitting-room, and there was no evidence at all that it was in any way suitable for such conversion. Speaking for myself, I do not accept that the sun-room can be so treated. It seems to me that it would be opening doors too wide if, part of a landlord’s residence having been let, the landlord could come along and say: ‘Oh, well, perhaps without the room that has been let I have not got what could be described as a dwelling-house except that there is another room never so used, and I can use that.’  One could, as my Lord suggested, treat an outhouse in the same way. A landlord could say: ‘Never mind that my residence has no bed-sitting-room, there is that delightful potting shed. It has got a window, and I can put in a bed, a table and a chair and there is the essential living-room to make my dwelling-house.’  That point, in my view, will not do. As to the primary submission made by Mr Mahoney, that really the plaintiff’s residence comprised and still retains his mother’s room, I cannot accept that either. We are exhorted in one of the authorities to which Mr Fulford referred to approach the matter with commonsense. The commonsense of the situation here as revealed by the evidence seems to me to be that the plaintiff never did regard his mother’s room as part of his residence, never so treated it and only occupied it on his return from the United States because he could not get into his own room. I regret that it is my view that the decision of the learned judge cannot be upheld and that Mr Fulford’s submission must be right and that the plaintiff was seeking in the proceedings to recover a dwelling-house which in its most important room, if I may so describe it, was the same as the room let to the defendant, and without such a room the house could not be a dwelling-house within the meaning of the Act. Accordingly, speaking for myself, I would allow this appeal. Agreeing, TEMPLEMAN LJ said: By section 12(1)(c) of the Rent Act 1977 the plaintiff landlord was entitled to possession of the basement front room forming part of 42 St Luke’s Road, London W11, from the defendant tenant provided that the landlord showed that the landlord occupied as his residence another dwelling-house which also formed part of the premises 42 St Luke’s Road. Before the grant of the tenancy, the landlord occupied as his residence the basement front room, another basement room known as the sun-room and the kitchen, bathroom and wc in the basement. The landlord shared the use of the kitchen, bathroom and wc in the basement with his mother, who occupied a room on the ground floor of the premises as her bed-sitting-room. The tenant was granted a tenancy of the basement front room with the use of the basement bathroom, kitchen and wc shared with the landlord’s mother. The landlord thus had occupied the same dwelling-house as the tenant and not another dwelling-house, unless the landlord’s occupation of the sun-room was occupation of another dwelling-house. On the evidence adduced before the county court judge it is impossible to describe the sun-room as another dwelling-house. It was a conservatory. Mr Mahoney for the landlord argued in the alternative that the bed-sitting-room on the ground floor was another dwelling-house, and so it was. But it was a dwelling-house occupied by the landlord’s mother as her residence. True it is that the landlord’s mother was a licensee and not a tenant, but on the evidence the landlord failed to establish that the bed-sitting-room on the ground floor was occupied by the landlord as his residence. The learned county court judge appears to have thought that the landlord occupied another dwelling-house because he occupied the whole of the basement, whereas the tenant only occupied the basement front room. But in my judgment the dwelling-house of the landlord was the same as the dwelling-house of the tenant. Each occupied the basement front room. Each shared the use of the bathroom, kitchen and wc with the landlord’s mother. The sun-room was not itself a dwelling-house, nor could it convert the landlord’s residence of the basement into another dwelling-house. For these reasons and for the reasons given by my Lady Dame Elizabeth Lane, I, too, would allow the appeal. CUMMING-BRUCE LJ said: I agree with both judgments. As to the sun-room, for the reasons already stated in the two judgments that have been delivered, it is altogether far too artificial to suggest that that room was at any time occupied by the landlord as his residence. As to the question whether, as submitted by Mr Mahoney, the landlord occupied as his residence another dwelling-house, to wit a hereditament consisting of the basement and the front room on the ground floor, which his mother had personally lived in, the answer on the evidence is that there was ample evidence to support the finding of the learned judge that the residence occupied by the landlord when he was in England was the basement, consisting of the bed-sitting-room later let to the defendant by Mrs Lyons. Mrs Lyons’ evidence is quite overwhelming in the way in which she put it when she was in the witness box. She said: ‘Before he went to America my son had occupied the whole basement. I would like him to live in the basement, which was his flat.’  When the plaintiff, Mr Lyons, gave evidence he stated in his evidence: ‘I lived in the basement from 1970 onwards, in the front basement room. I last lived in the basement room at the end of 1979 or early 1980. I expected that on my return to the house I’d be able to occupy my basement room. When I heard from my mother that she’d let the room I was very upset.’  Why was he very upset?  He was very upset because the room that he had occupied as his residence in the dwelling-house had been let by his mother to the defendant. For those reasons the submission forcefully presented by Mr Mahoney that the residence occupied by the landlord at all material times extended to and included the room which the mother occupied on the ground floor as a licensee has not been made out and cannot be sustained having regard to the evidence before the learned judge. I agree that the appeal should be allowed. The appeal was allowed with costs. Legal aid taxation of appellant’s costs ordered.