Kennealy and another v Dunne and another

Rent Act 1968, Case 10 of Schedule 3–Question of landlords’ (previous owner-occupiers’) claim for possession of house let on regulated tenancy–Meaning of ‘required’ in Case 10–Genuine desire and immediate intention implied, but no need to establish reasonableness of requirement–Landlords’ appeal allowed This was an appeal by George Kennealy and his wife, Catherine Bridget Kennealy, of St Ann’s Court, Hayling Island, from the dismissal by Judge Honig at Willesden County Court on January 21 1976 of their claim for possession of a furnished flat in Thorpebank Road, Hammersmith, London W12, on the ground that he was not satisfied that they ‘required’ the flat as their residence within the meaning of Case 10 of Schedule 3 to the Rent Act 1968. The respondent tenants were John Dunne and his wife, Mary. Andrew Hillier (instructed by Barnett & Co) represented the appellants, and Miss Suzanne Shenton (instructed by Peter Ellis & Co) represented the respondents. Giving the first judgment, STEPHENSON LJ said that the case concerned Case 10 in Part II of Schedule 3 to the Rent Act 1968, dealing with cases in which a court must order possession where a dwelling-house was subject to a regulated tenancy. Case 10 applied: Where a person who occupied the dwelling-house as his residence (in this case referred to as the ‘owner-occupier’) let it on a regulated tenancy and (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling-house has not, since December 8 1965, been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is satisfied that the dwelling-house is required as a residence for the owner-occupier or any member of his family who resided with the owner-occupier when he last occupied the dwelling-house as a residence. There was no dispute that Mr and Mrs Kennealy had occupied the flat as their residence, that they had let it on a regulated tenancy to Mr and Mrs Dunne, and that paragraphs (a) and (b) of Case 10 were satisfied. The only dispute related to paragraph (c). The county court judge was not satisfied that the flat was ‘required’ as a residence for Mr and Mrs Kennealy themselves or their family. The judge had said that he was entitled to interpret ‘required’ in its ordinary dictionary meaning. It meant more than ‘wants’ and bona fide ‘intention.’  There was something objective as well. Mr and Mrs Kennealy had a residence in Hayling Island. They were also entitled to use a flat which adjoined the disputed dwelling-house and which was occupied only by their daughter, and in his view they did not require the dwelling-house as a residence. Miss Shenton, for the tenants, had conceded that if the judge’s construction of ‘required’ was wrong the appeal must be allowed. Mr Hillier submitted that the judge had wrongly held that for the owner of a dwelling-house to establish that he required it for his own use as a residence within the meaning of Case 10, it was insufficient for him to establish merely that he wanted, and bona fide intended, to occupy it. Case 10 was the first of the cases in Part II of Schedule 3 where the court must order possession where a house was required as a residence. That distinguished it from Case 8, in which the court might order possession where the dwelling-house was reasonably required by the landlord for occupation as a residence. It was an irresistible inference on the face of Cases 8 and 10 that under Case 8 the dwelling-house must be ‘reasonably required’ by the landlord, but that he could bring himself within Case 10 without the dwelling-house being reasonably required, and the words ‘reasonably required’ had been interpreted in a way not wholly unfavourable to the landlord. Mr Hillier had submitted that ‘required,’ taken out of context, could mean anything from ‘desired’ to ‘indispensable,’ and he had relied on G C & E Nuthall (1917) Ltd v Entertainments & General Investment Corporation Ltd [1947] 2 All ER 384, a case under the Landlord and Tenant Act 1927. ‘Reasonably required’ had been interpreted as connoting more than desire but something much less than absolute necessity in the case of Aitken v Shaw 1933 SLT 21, a Scottish sheriff court decision. Care had to be taken in applying the interpretation of ‘require’ in other Acts to the present Act, but he (his Lordship) did get some help from two other cases cited by Mr Hillier. In Armstrong v Vallance (1951) 52 WALR 90, an Australian decision, the subject-matter was fairly near the subject-matter in the present case; and in Ireland v Taylor [1949] 1 KB 300 the court was considering the same provisions of the Landlord and Tenant Act 1927 as in Nuthall’s case. The judge had rightly regarded himself as not bound by the interpretation put upon the words of the 1927 Act because it had a different purpose from the 1968 Act. But in Ireland’s case, Somervell LJ, in a passage which the judge had quoted, said that ‘requires . . . in its present context . . . is satisfied if a landlord establishes . . . that he wants and intends to occupy the premises.’ He (his Lordship) had come to the conclusion that ‘required’ in Case 10 did not mean ‘reasonably required.’  It meant no more than bona fide wanting and genuinely intending to occupy as a residence within a reasonable time, but so wanting or intending whether reasonably or unreasonably, even from the landlord’s point of view. There was force in Mr Hillier’s submission that the purpose of Case 10 was to enable a landlord who was living in his own house to be free to take up a post in another part of the country or abroad and let his home secure in the knowledge that when he returned he could reoccupy his home on giving proper notice without the difficulties which a landlord under Case 8 had to overcome. If that were so, it explained the apparently deliberate omission of the qualifying word ‘reasonably.’  Under Case 10 there must be nothing more than a genuine requirement and a present intention. If that were shown, the landlord must have possession. The appeal should be allowed. BROWNE LJ agreed. MEGAW LJ, also agreeing, said that the legislature had clearly deliberately omitted ‘reasonably’ in Case 10 and had deliberately inserted it in Case 8. There might be good policy reasons for drawing the distinction. Whether that be so or not the result was that in order to comply with Case 10(c) all that the person who had previously occupied the dwelling-house and now desired to occupy it again had to prove was that he desired to occupy it and intended so to do. The desire and the intention must be genuine but no more than that. The appeal was allowed and possession ordered within eight weeks.