Bardrick v Vernon and others

Furnished tenancies–Whether landlord ‘occupied as his residence another part of the building’–Landlord’s ‘suite’ structurally separate, built on site of former garage–County court judge entitled to find that landlord’s accommodation did not form part of main building containing tenants’ flats This was the hearing of three connected appeals by Mr Donald Bardrick, owner of 11 Gunnersbury Avenue, Ealing, London W5, from judgments of Judge Barr at Brentford County Court dismissing claims for possession of three flats at no 11. Mr G V Owen QC and Mr T J Forbes (instructed by Silkin, Silkin, Pearce & Sons) appeared for the appellant, and Miss E A Lawson (instructed by J A Hostettler & Co) represented the respondent. Giving judgment, SCARMAN LJ said that 11 Gunnersbury Avenue was a brick house of substantial proportions, built in the early years of this century. The plaintiff acquired the freehold of the premises in 1968, but well before he did so the house and its character had yielded to the economic conditions of modern times. It had been built as a one-family house, but in 1960 was converted into six self-contained flats. In 1962 a number of lock-up garages were added. After Mr Bardrick acquired the property, he obtained planning permission for demolition of a garage and construction of a two-storey residential extension in its place. Although this had been referred to as an extension, there were in fact no internal communications between it and the main building. The extension was completed, and Mr Bardrick went to live in it and had continued to do so ever since. He had at various times let flats in the main building to the respective respondents. In the summer of 1974 he let flat no 2 furnished to Mr Vernon for a defined term at a weekly rent. At about the same time he let flat no 3 furnished to Mr Haycock from July 1 to December 31 1974 at a monthly rent, and flat no 6 furnished to Mr Robinson from August 1974 to January 31 1975. It followed that these three tenants were all in possession of their flats on the basis of a furnished tenancy when the Rent Act 1974 came into operation. All three held over after determination of their tenancies, claiming the protection of the Rent Act. Mr Bardrick relied on the terms of the new section 5A read into the Act of 1968. This provided: ‘A tenancy of a dwelling-house shall not be a protected tenancy at any time if (a) the dwelling-house forms part of a building which is not a purpose-built block of flats, and (b) the tenancy was granted by a person who, at the time that he granted it, occupied as his residence another part of the building.’  A schedule provided that where, at the commencement of the Rent Act 1974, a furnished tenancy was in existence, the exemption granted by section 5A should apply to that tenancy, That meant that if Mr Bardrick could bring himself within the section, he was entitled to possession of the three flats notwithstanding the extension of Rent Act protection to furnished tenancies by section 1 of the Act of 1974. The county court judge held, however, that Mr Bardrick could not avail himself of the exemption in section 5A. He found that the premises in which he (Mr Bardrick) lived did not form part of the main building of no 11, but were a separate dwelling on their own. Mr Bardrick appealed. At the end of the day the question the county court judge had to decide was a very short one. First he had to ask himself in regard to each of the flats of the main house whether it formed part of the main building, and he found that each flat did form part of the main building. Then he had to consider whether each of these flats was part of a purpose-built block of flats, and he found they were not. Lastly he had to ask himself whether, when he granted these tenancies, the plaintiff was occupying another dwelling-house which formed part of the same building, and he (Judge Barr) reached the conclusion that the dwelling-house occupied by the plaintiff was not part of the building which included the dwelling-houses occupied by the defendants. He (his Lordship) thought that the judge was right in his conclusion that the Act, properly construed, left it to the court to determine whether the dwelling-houses were part of the same building or not. The English word ‘building’ could bear an immense range of all sorts of constructions. Its meaning had to be a question of fact always, and the court had to direct itself correctly to the meaning of the statute. To give a correct definition of the word ‘building’ was almost an impossibility, and this in itself was an indication that Parliament had left the question of fact to the judge. So far as the actual interpretation put upon ‘building’ was concerned, he (his Lordship) had no doubt that the intention of Parliament in enacting section 5A was to relieve landlords from the consequences of flats where they lived being protected, where it was reasonable to do so. The mischief at which section 5A was aimed was the close proximity of landlords and tenants, and the idea of the exception for purpose-built blocks of flats was that in such premises landlords and tenants could more easily lead separate lives without embarrassment from each others’ proximity. When one turned to the present case and to the factual situation with regard to 11 Gunnersbury Avenue, one discovered that the plaintiff lived in what was described as ‘suite’ no 11, which was structurally tied into no 11 itself. But it was no closer to the main house than were houses in a terrace. There was no internal communication between it and the other building which housed the other flats. It would be as simple to lead separate lives in this extension as in any other street of terraced houses. It followed that there were abundant facts for Judge Barr to reach the decision he did. Parliament had left the decision to him, and it could only be reversed if he had misdirected himself in law or had reached a conclusion totally unsupported by the evidence. There was no ground on which his decision could be criticised, and the three appeals should accordingly be dismissed. CAIRNS LJ and SIR GORDON WILLMER agreed, and an order was made in the terms proposed.