Cooper and others v Tait and another

Rent Act 1977, section 12(1) — Joint landlords — One joint landlord resident — Whether resident landlord exception in section 12(1) applied, so that tenancy was not protected — Tenant’s dwelling-house in five-storey terraced house, not a purpose-built block of flats — One of the joint landlords lived in a basement flat in the house, the others not being resident there — Appeal from decision of county court judge who held that tenancy was not protected — Held, dismissing appeal, that section 12(1) read literally covered residence by one of several joint landlords and that such a construction accorded with the intention of Parliament to encourage people to divide up accommodation without risk of never again being able to regain possession — It was ‘too simple to say that [the case] was on all fours with Tilling v Whiteman’ (per Eveleigh LJ), but ‘Tilling v Whiteman assists the court’ (per Stephen Brown LJ) This was an appeal by the tenant, Miss Moira Tait, from a decision of Judge Butter at Bloomsbury and Marylebone County Court, whereby she was ordered to give up possession of a flat at 49 Ossington Street, Kensington, London W2, to the landlords, Eric Cooper, Paul Cooper and Hilary Cooper. One of the joint landlords, Eric Cooper, lived in a basement flat at this address, a five-storey 19th-century terraced house converted into flats. Gordon Bennett (instructed by Lewis & Pearson) appeared on behalf of the appellant tenant; Geoffrey Stephenson (instructed by Blacket Gill & Swain) represented the respondent landlords. Giving judgment, EVELEIGH LJ said: This case is concerned with the question of whether a tenancy is protected when it is granted by joint owners and one of them resides on the premises, and did reside there at all material times, but the others do not and did not. In April of 1982 the three plaintiffs, Eric Cooper, Paul Cooper and Hilary Cooper, were described as ‘the landlord’ in an agreement for a lease whereby it was agreed that the landlord should let the premises from April 11 1982 until July 10 1982 at a monthly rent of £108.35, payable on the 11th of every month. The address of the three plaintiffs was there given as 18 Lowther Road, Barnes, London SW13. The premises were situate at 49 Ossington Street, Kensington. They consisted of a five-storey terraced house built at the end of the last century. The house was divided up into a number of flats. In the basement flat Mr Eric Cooper himself lived at the time of the grant of the lease and has continued to live there. He owns and did own 50% of the share in the property, and the other two plaintiffs 25% each. Notice to quit was served upon the defendant and possession was claimed. We are not concerned with any alternative claim to possession. The sole question with which this court has had to contend is whether the learned judge was right in holding that by virtue of section 12 of the Rent Act 1977 the tenancy was not a protected tenancy. He was guided by the decision in Tilling v Whiteman [1980] AC 1. That case was concerned with a question which fell to be determined under Case 10 of Part II of Schedule 3 to the Rent Act 1968. There had been a decision upon the effect of a joint letting under the old Rent Acts in the case of McIntyre v Hardcastle [1948] 2 KB 82. That case in effect decided that where joint tenants were concerned it was necessary for the joint tenants — all of them, that is — to show that they required possession for themselves and that it was not permissible for one such joint tenant to make a claim. But in Tilling v Whiteman it was emphasised that where the court has to construe a statute, it is the words of the precise statute in question with which the court is concerned, and the House of Lords discouraged reference to other cases where the words were different. It is for that reason that I myself do not propose to refer in any more detail to that case of Tilling v Whiteman. The words of Case 10 are utterly different from the words with which we have to contend in section 12. What I propose to do is to approach this case by going at once to the provisions of the statute. In other words, I shall read through the section with which we are concerned and see whether or not it fits the facts of this particular case. Section 12(1) reads: Subject to subsection (2) below, a tenancy of a dwelling-house granted on or after August 14 1974 shall not be a protected tenancy at any time if . . . This tenancy was granted after August 14 1974. The section then continues: (a)  the dwelling-house forms part only of a building and that building is not a purpose-built block of flats; This was not a purpose-built block of flats and the dwelling-house does form part only of a building. I continue: and (b) 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. I ask myself the question: Was Mr Eric Cooper a person who occupied as his residence another residence which also forms part of that building?, and the answer is ‘Yes’. I then ask the question: Was the tenancy granted by the tenant?  While I can see that it is possible to argue that he did not, because the correct answer to that question would be that the tenancy was granted by him and by other I myself take the view that the tenancy was granted by him, albeit that it was granted by him in conjunction with others. I see no reason to read into that provision any words to the effect that the resident must grant the tenancy alone. I then turn to (1)(c). That reads: subject to paragraph 1 of Schedule 2 to this Act, 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 also formed part of that building. I again conclude that the interest of Mr Cooper is properly called ‘the interest of the landlord’ and it belonged to him, as required by that provision. It has been argued on behalf of the appellant that subsection (1)(c) makes it impossible or unnatural to construe subsection (1)(b) in the way which I have. It is said that the interest of the landlord in the tenancy does not belong to Mr Cooper, but belongs to all the three plaintiffs. But it is to be noted that the Act does not state the nature of the interest. I read it as saying that such interest as the landlord has is relevant for consideration and he must have that interest at the time he occupied as a resident; and in this case that is so. I have not found this case entirely easy. It would be too simple to115 say it is on all fours with Tilling v Whiteman, and I do not believe that that is a permissible approach to the construction of this section; but, in my judgment, the conclusion at which I have arrived is the result of applying the words of the section literally and avoiding adding any words at all. I feel also that the result accords with the intention of the legislature. This section was clearly intended to encourage people to divide up such accommodation or such premises as they had and to create more than one dwelling-house without being afraid that they would then never again be able to have their premises under their own sole control and occupation because of the presence of a protected tenant. I am conscious of the fact that for some buildings that would be rather a fanciful object when one considers the size of premises that are these days converted into flats. But it is easy to take extreme cases when one has to consider these Acts and one can set an extreme case which points in the opposite direction. For example, there may be a husband and wife who are joint owners who together let a flat in the premises owned by them, while they occupy another flat in those same premises. There may be only two flats, and if the wife then leaves and there is a divorce, it means that the husband, should he marry again, will be unable to obtain possession of the whole premises. So, looking at particular cases is not really a great help. I have sought to construe the statute in the words that I see and I find that Mr Eric Cooper comes within the words; and, that being so, this is not a protected tenancy. I would dismiss this appeal. Agreeing, STEPHEN BROWN LJ said: I agree. Mr Eric Cooper has lived in the basement flat of the house in question with his wife and daughter since 1962. Together with his brother and sister-in-law, he inherited the ownership of the house from his father. Mr Cooper’s first wife apparently originally owned a 25% share, but there was a separation; she returned to America, whence she came, and since then Mr Cooper has owned a 50% share of the equity of the house. It is clear that he was a person who occupied as his residence another dwelling-house forming part of the building in question when the tenancy was granted. The question is whether the tenancy in question can be said to have been granted by Mr Cooper. In the words of section 12(1)(b) was the tenancy ‘granted by a person who, at the time that he granted it, occupied as his residence another dwelling-house which . . .’? In my judgment, the House of Lords decision in Tilling v Whiteman assists the court in this regard. In that case, Mrs Tilling and Miss Dossett jointly owned a cottage in which Mrs Tilling had resided alone immediately before the relevant date. The question was whether it could be said that Mrs Tilling, who was only one of two joint owners, had let the property on a regulated tenancy. I find assistance in a passage in the judgment of Eveleigh LJ in the Court of Appeal, which was adopted by Lord Salmon in his speech in the House of Lords. It appears at p 21 of the report in [1980] AC, just below letter ‘C’. Lord Salmon said: Mrs Tilling is, in my view, indubitably a person who occupied the dwelling-house as her residence and let it on a regulated tenancy. I entirely agree with Eveleigh LJ when he says: ‘The fact that two people do a thing together does not, in my understanding of the English language, prevent either one claiming that he himself did it. The argument to the contrary entails reading into the Act words something like ‘on his own’. Lord Salmon also pointed out that certain ‘absurd and unjust results would follow from a different construction from that which was accepted by the learned county court Judge. My lord, Eveleigh LJ, has referred to one such possible situation. I consider that the learned county court judge in this instance applied a correct interpretation of the effect of section 12 of the Rent Act 1977 and, on the facts which he found, that the plaintiffs brought themselves within the terms of the section. Accordingly, I, too, would dismiss this appeal. The appeal was dismissed, with order for costs against Legal Aid Fund; legal aid taxation. Leave to appeal to House of Lords refused.