Wolff v Waddington

Rent Act 1977, section 12 and Schedule 2 — Resident landlord — Whether two flats formed parts of the same building — Whether plaintiff (respondent to appeal), who claimed to be a resident landlord for the purpose of section 12, was occupying one of the flats as her residence at the material time — Appeal by occupier of the other flat from decision of county court judge granting plaintiff possession — Whether judge reached the right conclusion on issues of fact — Some authorities considered The appellant’s first-floor flat was part of an extension, the roof line of the extension being somewhat lower than the roof line of the rest of the house — The appellant’s kitchen, on the first floor, was above the respondent’s bathroom, the appellant’s bedroom was above the respondent’s garage and the appellant’s sitting-room was above the respondent’s utility room — There was an alleyway, but at ground level only, between the two parts of the house — There were separate entrances to the two flats — It was conceded on behalf of the appellant that the case was a borderline one on this issue, although in the Court of Appeal Lloyd LJ considered that the two flats were clearly part of the same building On the question of the respondent’s occupation of her flat as a residence, the facts were as follows — The respondent’s mother had occupied the ground-floor flat — When she became ill, the respondent, who was married to an American and had been living in the USA, came to England to be with her mother but the mother died within less than a fortnight of her daughter’s arrival — The mother’s death was on February 28 1987 and the respondent had lived in the ground-floor flat ever since, except for two visits of a month each to the United States, in June 1987 and January 1988 It was submitted on appeal that the two flats were not parts of the same building and reliance was placed, inter alia, on the separate entrances, the existence of the alleyway at ground level and, adopting a phrase used by Scarman LJ in Bardrick v Haycock, the fact that the appellant and respondent could ‘live separate lives without embarrassment even though physically they are in close proximity to each other’ — The Court of Appeal, however, held that it was a straightforward case of two flats forming part of the same building — The court did not regard it as even a borderline case, if it had been, they would not have interfered with the judge’s decision on what was essentially a question of fact The more difficult question in the judge’s view was whether the respondent was occupying the ground-floor flat as her residence at the material time so as to qualify as a resident landlord — She had been living in this flat more or less continuously since February 1987, but she had said in evidence that she regarded America as her home and that she intended to return there — The Court of Appeal accepted that she might109 do so, but the question was whether the flat had been her home in England since her mother died — It was possible for a person to have two homes for the purpose of the Rent Acts and this applied not only to a statutory tenant but also to a resident landlord — The two-home principle was authoritatively examined by the House of Lords in Hampstead Way Investments Ltd v Lewis-Weare, although with reference to a statutory tenant — The case of Beck v Scholz, on which the appellant relied, was distinguished — In the present case the respondent was occupying the flat for 13 months before deciding to put the house up for sale — It was clear that she occupied the flat as her residence — Appeal dismissed The following cases are 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 Beck v Scholz [1953] 1 QB 570; [1953] 2 WLR 651; [1953] 1 All ER 814, CA Griffiths v English [1982] EGD 457; (1981) 261 EG 257, [1982] 1 EGLR 96; [1982] 2 HLR 126, CA Hampstead Way Investments Ltd v Lewis-Weare [1985] 1 WLR 164; [1985] 1 All ER 564; [1985] 1 EGLR 120; (1985) 274 EG 281, HL Langford Property Co Ltd v Tureman [1949] 1 KB 29; (1948) 64 TLR 517; sub nom Langford Property Co v Athanassoglou [1948] 2 All ER 722, CA This was an appeal by the defendant, Anthony Waddington, who occupied a first-floor flat at 205b Cottingham Road, Kingston upon Hull, from a decision of Judge Barker, at Kingston upon Hull County Court, ordering him to give possession of the flat to the plaintiff (the present respondent), Mrs Joyce Wolff. P W Genney (instructed by Collyer Bristow, agents for Payne & Payne, of Hull) appeared on behalf of the appellant; Paul de la Piquerie (instructed by Theodore Goddard, agents for Stamp Jackson & Proctor, of Hull) represented the respondent. Giving judgment, LLOYD LJ said: This is the defendant’s appeal from a decision of His Honour Judge Barker, sitting in the Kingston upon Hull County Court on December 15 1988, whereby he ordered the defendant to give up possession of a dwelling-house known as Flat 1, 205b Cottingham Road, Kingston upon Hull. The plaintiff is Mrs Joyce Wolff. Her mother granted the defendant, Anthony Waddington, a weekly tenancy of the flat in question in October 1977. The flat is on the first floor. It has a separate entrance. I shall describe it in greater detail in a moment or so. The plaintiff’s mother occupied the ground-floor flat, known as 205a. In February 1987 the plaintiff’s mother became ill. The plaintiff, who was married to an American and had been living in the United States, came to live with her mother; that was on February 17 1987. On February 28 1987 the plaintiff’s mother died. The plaintiff has been living at 205a ever since, except for two periods of one month each, when she returned to the United States in June 1987 and again in January 1988. In March 1988 the house was put up for sale. On July 2 1988 the plaintiff served a notice to quit on the defendant. On October 18 she issued her writ. The case came on for hearing before His Honour Judge Barker on December 15 1988. By his defence the defendant claims that he is a protected tenant. The relevant legislation is to be found in section 12 of the Rent Act 1977 as amended. It is very conveniently set out in the plaintiff’s skeleton argument. Section 12 provides as follows: (1)  . . . a tenancy of a dwelling-house granted on or after 14th August 1974 shall not be a protected tenancy at any time if — (a)  the dwelling-house forms part only of a building and . . . the building is not a purpose-built block of flats; and (b)  the tenancy was granted by a person who, at the time when he granted it, occupied as his residence another dwelling-house which — (i)    . . . (ii)  . . . also forms part of the building; and (c)  . . . at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to a person who, at the time he owned that interest, occupied as his residence another dwelling-house which — (i)    . . . (ii)   . . . also formed part of the building . . . (4)  Schedule 2 to this Act shall have effect for the purpose of supplementing this section. Para 5 of Schedule 2 to the Rent Act provides 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. It is thus apparent that there were two questions to be determined by the judge: (1)  Are 205a and 205b parts of the same building? (2)  Was the plaintiff occupying 205a as her residence at the material time? The judge regarded both those questions as questions of fact; he decided both questions in favour of the plaintiff and made his order accordingly. There is now an appeal to this court by the defendant. On the first of those two questions we have seen a plan and we have also seen some photographs. It is not altogether easy to visualise the layout. But putting it at its most favourable from the defendant’s point of view it would appear that his flat is part of an extension, the roof line of the extension being somewhat lower than the roof line of the rest of the house. The defendant’s kitchen, on the first floor, is above the plaintiff’s bathroom; the defendant’s bedroom is above the plaintiff’s garage and the defendant’s sitting-room is above the plaintiff’s utility room. There is an alleyway between the two parts of the house, if that is the right way to describe it, that alleyway being at the ground-floor level only. Mr Genney on behalf of the defendant relies on various matters in support of his submission that the two flats were not part of the same building. In the first place he relies on the fact that the plaintiff and the defendant had separate entrances. Second, he relies on the absence of any vertical party wall between that part occupied by the plaintiff and that part occupied by the defendant. Third, he relies on the existence of the alleyway which, as I have said, was at ground-floor level only. In addition — and this would appear to be the main point of the appeal — he relied on the fact that the plaintiff and the defendant were able to live separate lives without embarrassment, to quote the language of Scarman LJ in the case of Bardrick v Haycock (1976) 31 P&CR 420, and this even though they were physically in close proximity to each other. Mr Genney submits that the judge erred in law when he said that it was neither here nor there that the parties could lead separate lives. But as against that, the two flats have all the appearance of being part of one and the same building, a fact which was regarded as being of importance by Eveleigh LJ in the case of Griffiths v English [1982] 2 HLR 126*, to which we were referred by Mr de la Piquerie. I note that in the Bardrick case Cairns LJ, giving an example of the sort of case in which a judge might be said to have erred in law, said at the commencement of his judgment (p 425): When an Act of Parliament uses the word ‘building’ without defining it there must be some structures or pairs of structures which as a matter of law could be said to be two buildings within the meaning of the Act and some which as a matter of law could be said to be one building. If a judge held, for example, that two quite separate houses constituted one building, he might be said to have erred in law. On the other hand, if a judge held that two floors in the same house constituted separate buildings, that might be said to be erroneous in law. *Editor’s note: Also reported at (1981) 261 EG 257, [1982] 1 EGLR 96. My own strong impression is that these two flats were part of one and the same building. It could not be suggested for one moment that what I have called the extension to the plaintiff’s flat, on the other side of the alleyway, that is to say, the bathroom, utility room and garage, were part of a separate building. They were part of the same building. The defendant’s flat in this case was over that part of the plaintiff’s flat which was on the other side of the alleyway. So for myself I would regard this as a straightforward case in which these two flats form part of the same building. But if it were a borderline case, I would never interfere with the decision of the judge on what is essentially a question of fact. The correct approach to a borderline case was indicated by Brandon LJ in the case of Griffiths v English, to which I have already referred. He said, at p 131: But in between those cases there must be a band of cases where different views can perhaps be taken reasonably by different judges. That being so, in so far as a judge in what might be described as a borderline case comes to a conclusion one way or the other as to whether there is one building or more than one building, then the matter is one of fact and no appeal to this court is available in respect of his decision. Mr Genney had to concede that at best from his point of view this was a borderline case. For the reasons given by Brandon LJ, I would therefore decline to interfere with the decision of the learned judge.110 But in any event, as I have said, I do not regard this as a borderline case. As to the alleged error of law on which Mr Genney relies, it is clear when one looks at the judgment that the judge had already concluded that the flats were part of one and the same building before adding, as if by afterthought, that they could lead separate lives; that factor did not affect his decision. I then turn to the second of the two questions, which the judge regarded as the more difficult of the two. As I have already said, the facts are that the plaintiff had been living at 205a more or less continuously since February 1987. Mr Genney on behalf of the defendant relies on the plaintiff’s evidence that she regards America as her home and that she intends to return there. So she may. But the question is whether 205a has also been her home in England since her mother died. It is settled law that a person may have more than one home which he occupies as his residence for the purpose of the Rent Acts. That was decided by the Court of Appeal in Langford Property Co Ltd v Athanassoglou [1948] 2 All ER 722. That decision was approved by the House of Lords in Hampstead Way Investments Ltd v Lewis-Weare [1985] All ER 564, per Lord Brandon at p 568.*  So it is clear that a person may have two homes for the purposes of this part of the Rent Act; indeed, so much was conceded by Mr Genney. *Editor’s note: Also reported at [1985] 1 EGLR 120, at p 122. But Mr Genney relies on the subsequent case of Beck v Scholz [1953] 1 All ER 814. But the facts of that case, when one comes to look at them, are really quite different. There the dwelling was being occupied as a matter of convenience for occasional visits only. That could not possibly be said of the plaintiff’s occupation of 205a. Mr Genney says that Beck v Scholz establishes that one can look at the purpose of the occupation. He argued that the plaintiff occupied 205a only as a matter of convenience while she disposed of the property before her return to the United States. But, as I have said, the plaintiff was at 205a for a period of 13 months before she ever put up the house for sale. To my mind, it is quite clear that she was occupying 205a not merely as a matter of convenience. As has been said, it is a question of fact and degree in every case whether a person occupies a house as his residence or not; that is the way in which the matter was put by Lord Brandon in the Hampstead Way Investments case, to which I have already referred. To my mind it is clear as a matter of fact that the plaintiff occupied 205a as her residence. For the reasons that I have mentioned, it seems to me that the judge reached the right decision on both these issues of fact, and I would dismiss the appeal. STOCKER LJ agreed and did not add anything. The appeal was dismissed; an order for costs was made against the defendant, such order not to be enforced without further order; usual order nisi against legal aid fund.