Battlespring Ltd v Gates

Rent Act 1977, section 98 — Suitable alternative accommodation — Whether reasonable to make possession order — Elderly widow offered alternative accommodation in a flat similar in many respects to her maisonette, in the same road, at a slightly smaller rent, the alternative flat being at the more pleasant end of the road, and, when renovated, probably more comfortable than her present accommodation — However, after 35 years, having brought up her family there, she was attached to her present maisonette, with the memories it had for her, and did not want to move — The county court judge took the view that, in all the circumstances, it would not be reasonable to make the order for possession in favour of the landlords — Held by Court of Appeal that the judge had exercised his discretion properly in accordance with the authorities, such as Cresswell v Hodgson and Cumming v Danson — He quite properly balanced the position of the plaintiffs, new landlords whose interest was, perfectly legitimately, purely financial, against the personal situation, feelings and objections of the elderly defendant — No fault could be found with the way in which the judge exercised his wide discretion — Appeal dismissed This was an appeal by landlords, Battlespring Ltd, a property company, against a decision of Judge Babington, at Wandsworth County Court, refusing the appellants an order for possession of a first-floor maisonette at 25 Edgeley Road, London SW4, occupied by the respondent, Mrs Doris Gates. J A Acton Davis (instructed by I V Heap & Co, of Croydon) appeared on behalf of the appellants; G Hulme (instructed by Keith Hollis & Co) represented the respondent. Mr Hulme was not called on. Giving judgment, WATKINS LJ said: This is an appeal against a judgment of His Honour Judge Babington given on July 29 1982 at Wandsworth County Court. He had before him an application for possession of a first-floor maisonette at 25 Edgeley Road, London SW4. That maisonette is and was occupied by the defendant, an elderly lady, Mrs Doris Gates. The judge came to the conclusion that it would not be reasonable in all the circumstances for the order which the plaintiffs sought to be made. He therefore dismissed the application for possession. The plaintiffs appear to be a property company; they purchased these premises in late 1981. The object of doing so was, upon obtaining vacant possession of the whole of the premises, to renovate them and sell them at a profit The premises comprise two flats — one occupied by the defendant, the other on the ground floor which, at the relevant time, was vacant. The evidence which the plaintiffs placed before the judge came from two of their servants — namely their estates manager and property negotiator. They informed him that the defendant had been offered alternative accommodation by the plaintiffs. This accommodation was at premises in the same road, namely 82 Edgeley Road. Those premises are also divided into flats. The flat which was offered to the defendant is similar in many respects to her maisonette. The rent at which she would be able to occupy that accommodation would be slightly less than the rent which she pays at the present time. The plaintiffs say that the flat at no 82 will have been considerably renovated by the time the defendant came to occupy it. We are told the judge was informed that her reasonable costs of moving from one end of the road to the other would have been met by the plaintiffs. Furthermore, that no 82 is at a more pleasant end of this road than is no 25. The plaintiffs therefore consider that they have offered the defendant what might be called a modern flat, in a more comfortable and congenial area, and at a lesser rent. The defendant’s reaction to the plaintiffs’ offer, as first presented by her solicitors, appears to have been that she considered the flat at 82 Edgeley Road to be wholly unsuitable for her purpose. Her later reaction — and one which was presented to the judge in the course of the hearing — was that it would be wholly unreasonable of anyone to expect her to leave her present home. She had occupied it for 35 years; she had brought up her family there. Her husband died seven years ago. Her children have now grown up and have left home. She is alone. She lives with the assistance of supplementary benefits, but the flat has very tender memories for her and she would be extremely loath to leave there — even though the alternative accommodation is not very far away from where she now lives, and it might well be said that, when renovated, that alternative accommodation might be more comfortable than the flat which she now occupies. There really is nothing more to be said about the facts than that. The judge had to apply his mind, according to well-known principles, to the question of whether or no it would be reasonable, in the circumstances, for him to make the order sought by the plaintiffs. What should his approach have been?  It was thus expressed in Cresswell v Hodgson [1951] 2 KB 92 in the judgment of Somervell LJ at p 95, with reference to earlier but similar legislation: I think that, when Parliament gave this overriding discretion to the county court judge and said ‘You must consider whether it is reasonable to make an order’, it gave him a very wide discretion, which it is most undesirable to seek to limit or interfere with. I think the words of the section themselves indicate that the county court judge must look at the effect of the order on each party to it. I do not see how it is possible to consider whether it is reasonable to make an order unless you consider its effect on landlord and tenant, firstly, if you make it, and secondly, if you do not. I do not think we should say anything which restricts the circumstances which the county court judge should take into consideration. I think he is entitled to take into consideration that this is a case where the landlord is making a pecuniary gain. That might in other cases be a fact in the landlord’s favour, and it might be thought reasonable that he should be given the chance of making pecuniary gain. It was similarly expressed by Lord Greene MR in Cumming v Danson [1942] 2 All ER 653. At p 655F, he said: In considering reasonableness under section 3(1), it is, in my opinion, perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, commonsense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account. The learned and experienced county court judge in the present case seems to me to have had that guidance well in mind in coming to the conclusion which he did. He expressed his reasons for arriving at his decision finally in this lucid and brief way: I have decided not to make the order and I base my decision on the fact that here is a tenant who has occupied the accommodation for a very long time and a landlord who has only bought the property less than one year ago, and bought it, on the evidence, with the intention of obtaining vacant possession and reselling it. Subject to any authorities which might have been pointed out to me, I feel that that would be an unreasonable order to make. He had earlier referred to the personal situation and feelings of the defendant, for whom he obviously felt a great deal of sympathy. I ask myself whether it is possible to say that the judge misdirected himself in the exercise of his discretion. In reviewing the exercise of a judge’s discretion in this context, it is well to bear in mind what was said by Singleton LJ in the Cresswell case at p 96: When there has been an appeal to this court on that question of reasonableness it has been said time and time again that it is really a question of fact, and that unless the appellant can show that the judge has misdirected himself in some measure, this court cannot interfere, for the decision on that question is for the county court judge. It is for him to consider whether he thinks it reasonable to make an order. Mr Acton Davis submits that the judge in this case did not exercise his discretion properly; in the first place he took into account the fact that the plaintiffs were new landlords, whose only object was to make a quick profit upon the property in which the defendant now lives. That, he says, was wholly irrelevant and should not have been allowed to have influenced the judge’s mind at all. If allowed to influence it, it was a factor to be used in favour of the plaintiffs, rather than against them. Secondly, he contends that this really was a decision founded almost exclusively upon a sympathetic consideration of the defendant’s objection to moving from a place which she had occupied for a very long time — the prospect of going to another and superior place notwithstanding. Lastly he maintained that to make reference, as the judge did, to the fact that this was a recent acquisition by the plaintiffs of the relevant property, was yet another instance of his taking into account factors which should not have been allowed to influence him. I regard the decision of the judge as the product of the exercise of a discretion which I cannot possibly fault. What in fact he did was, on the one hand, to consider the position of the plaintiffs, and properly to find that they were landlords who were simply interested in the property for the purpose of gain. There is, as he said, nothing wrong in that motive whatsoever, but that was precisely their position. It was quite unlike the situation of other landlords who seek orders for possession on the basis that they have either nowhere to live, or that the dwelling which they have at the moment is overcrowded. Balanced against that was the personal position of this elderly defendant, which was, among other things, that she had occupied these premises for 35 years. It seems always to have been her home — all her memories are still there. I do not consider that a factor of that kind should not be allowed to influence the judge in coming to a conclusion as to whether or no it would be reasonable to turn her out — even though alternative and suitable alternative accommodation (as he found) was available to her. For these reasons I would dismiss this appeal. MAY LJ agreed. The appeal was dismissed with costs.