Empson and another v Forde and another

Rent Act 1977 — Repairs — Property in need of substantial repairs — Landlords wished to carry out repairs to a property occupied by protected, later statutory, tenants — The works, in the landlords’ view, required the tenants to move out temporarily while they were being carried out — The tenants were worried that the repairs might be accompanied by improvements which could reduce their accommodation and result in an increase of rent — They were also afraid that if they moved out they might never get back — This was the problem which gave rise to the present ‘unfortunate’ litigation After a long and inconclusive correspondence the landlords served on the tenants a notice to quit which converted their protected tenancy into a statutory one — Particulars of claim alleged that the property was overcrowded (an allegation dropped at the trial) and also invoked Cases 1 and 3 in Schedule 15 to the 1977 Act — It was clear that the plaintiffs’ ground for possession was that they were required by the local council to carry out repairs and that the tenants were preventing this from being done by not moving out — In order to bring themselves within Case 1 or Case 3 the plaintiffs had to show that the defendants had broken a term or condition of the tenancy — The judge at the trial, having heard the parties and studied the correspondence, decided that there had not been any such breach — The plaintiffs had to establish a refusal on the part of the defendants to allow access for the purpose of carrying out repairs — The judge concluded that there had been no refusal and therefore no breach — It was not, therefore, necessary to consider whether or not it was reasonable to make an order for possession, but the judge was in any case of the opinion that it would not be reasonable — The plaintiffs appealed The Court of Appeal held that the matter was essentially one of fact for the judge below and that there was no justification for impugning his judgment — Both members of the Court of Appeal expressed the hope that the parties would sort out their differences and work out a sensible and practical arrangement to enable the repairs (which were necessary) to be done — Woolf LJ said that ‘it is about time that they showed sufficient maturity to achieve the agreement which is necessary’ — Appeal dismissed No cases are referred to in this report. This was an appeal by the plaintiffs below, Fitzroy Empson and Cynthia Charlton, the landlords of a property at 55 The Limes Avenue, London N11, from a decision of Judge Goldstone at the Watford County Court, refusing the plaintiffs an order for possession against the tenants, Mr and Mrs Forde (the present respondents), who occupied the ground-floor flat in the property. Peter Dedman (instructed by Robin Thompson & Partners) appeared on behalf of the appellants; Anthony Moore (instructed by Howard Pallis & Co) represented the respondents. Giving judgment, WOOLF LJ said: This is an appeal with a very unfortunate history and, from everybody’s point of view, the outcome of proceedings which took place in the Watford County Court was unfortunate, as indeed this appeal has proved to be unfortunate. For a substantial period of time the defendants have occupied 55 The Limes Avenue, London N11, as their home. They did not occupy the whole of the property, but the ground-floor flat of the premises. They have a family of five children. The premises are not very big and clearly they were overcrowded, but they were premises to which they had become very attached and in which they were anxious to remain. It was their family home and had been so since October 1971. In July 1985 the plaintiffs purchased the property. They carried out substantial refurbishments to the upper part of the premises at 55 The Limes Avenue. Those refurbishments to the upper part, which included the insertion of a substantial dormer window, were not completed and the upper part of the premises was never actually fit for occupation. No doubt, having improved the upper part of the premises, the plaintiffs were anxious to improve the ground floor of the premises, and that should have been to the benefit of the defendants who were living there. But the problem was that the defendants, first of all, were concerned that, if their part of the premises was improved, this could result in their having less accommodation than at present and they indeed might be in difficulty in remaining there, so they were very nervous about improvements being carried out. They also were concerned that the plaintiffs wished them to move out of the premises while those works were carried out and they felt that, if they moved out, they may never get back. One can well understand the feelings which the defendants had. Correspondence took place between the parties and their respective solicitors. A bundle of correspondence is attached to our papers and that starts on January 14 1986, when a letter is sent by the plaintiffs’ solicitors to the defendants’ solicitors, saying: Our client is prevented from carrying out repairs required by the Local Council. That letter is replied to on January 21 by solicitors for the defendants. It refers to the fact that a notice to quit was served and says: We are not terribly sure what basis you are proceeding with the Notice to Quit. Our clients are not in arrears with rent and we presume this is on the basis that your client is required to undertake work by the Local Council. We are instructed that the work required by the Local Council can be undertaken whilst our clients remain in the property. Alternatively, as has previously been put to you by our clients they are willing to reside in the upper part of the house until the works in their flat have been completed. We would suggest this to be a reasonable proposal. Our clients are also somewhat surprised to hear that you have to dig up the foundations in view of the fact that you have already carried out substantial works to the upper part of the house, which we would have thought you would not have done if you had to undertake foundation work. Would you kindly supply us with a Schedule of Works that you are required to undertake by the Council and also supply a copy of the order or summons or notice requiring you to do work. Our client has already offered to move out of the premises to temporary accommodation in the existing premises, and as we understand the situation the Local Council are not willing to offer temporary accommodation for your client to carry out the repairs. We presume the Local Council is not willing to co-operate as your client has temporary accommodation easily and readily132 available to our client. As has also been stated in a letter to you, our client is not willing for improvements to take place in their flat in view of the fact that your client wishes to undertake improvements which will effectively reduce the amount of space available for our clients. That letter made clear the concern of the defendants. There then follows a long correspondence in which the London Borough of Enfield became involved and in which the borough sought to try to help achieve a situation where the repairs, which undoubtedly needed to be carried out to these premises, could be carried out with the agreement of the defendants. But the matters which were causing the defendants concern were never resolved entirely to the satisfaction of the defendants and their solicitors, although at times the parties came very close to doing so. It is not necessary for the purposes of this judgment to go through the correspondence in detail. Suffice it to say that, when the matter eventually came before the court, the learned judge said this about the correspondence: Viewing the correspondence globally I am not satisfied that such an unequivocal offer was made and rejected by the Defendants. They repeatedly told me that they were prepared to move if the Plaintiff were to do no more than repair. — then there is a reference to dry rot — The Defendants say since the Plaintiff became the owner he had sought to do alterations to the premises by wishing to block a chimney which they did not want. The unequivocal offer which the learned judge was referring to was an unequivocal offer to carry out the repairs and only the repairs for which a landlord was entitled to obtain access to carry out, that is repairs without improvement. Speaking for myself, having viewed the correspondence as a whole, I am satisfied that the learned judge was perfectly entitled to come to that conclusion. Because of the difficulties which existed in achieving a situation which the plaintiffs no doubt wished to achieve — that they could carry out the work to the property which they wanted — not only did they serve a notice to quit but in due course they commenced proceedings. They initially commenced proceedings in person, but the particulars of claim were subsequently amended to set out the matters which were relied upon. Those amended particulars of claim record the fact that the tenancy was determined by notice to quit dated January 14 1986 and expiring on February 17 1986. It alleges that the premises were overcrowded within the meaning of the Housing Act and in such circumstances as to render the defendants guilty of an offence under section 77 of the Housing Act 1957, now section 327 of the 1985 Act. With regard to that allegation, it is right to say that it was not pursued at the trial. The learned judge indicated it was an allegation wholly without foundation. What can be said about the allegation is that it was not one which was likely to inspire the defendants with confidence about the plaintiffs’ intentions when they indicated that they were seeking to carry out repairs alone and wanting to carry out the repairs in circumstances in which, if the defendants moved out, the defendants would be entitled to return after the repairs had been carried out. The amended particulars of claim go on to make alternative allegations. First of all, it set out an express or implied term of the tenancy that the plaintiffs would put and keep the premises in repair; second, the defendants would afford access to the plaintiffs to enable them to carry out those repairs; and, third, the defendants would vacate the premises should the repair work required render the same necessary. It sets out the fact that two notices had been served on the plaintiffs by the local authority requiring work to be done. Then it is alleged that there was substantial disrepair at the premises. At para 11 this allegation is made: Despite requests made by the Plaintiffs the Defendants refuse to allow the Plaintiffs vacant possession of the premises in order to carry out the works and the Plaintiffs’ claim to be entitled to an Order requiring the Defendants to give up possession of the premises whilst the works are carried out. 12. Further or alternatively the Plaintiffs intend to rely upon the following grounds for possession. Then there is a reference to Case 1 and it is said with regard to Case 1: failing to allow the Plaintiffs reasonable access to carry out the repair works. Then there is a reference to Case 3: Failing to allow the repairs to be carried out by remaining in the said premises. So far as the references to Case 1 and Case 3 are concerned, the relevant provisions are contained in Schedule 15 to the Rent Act 1977. Case 1 provides: Where . . . any obligation of the . . . statutory tenancy which arises under this Act, or — . . . (b)   in the case of a statutory tenancy, any other obligation of the previous protected tenancy which is applicable to the statutory tenancy, has been broken or not performed. Case 3 provides: Where the condition of the dwelling-house has, in the opinion of the court, deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any person residing or lodging with him or any sub-tenant of his and, in the case of any act of waste by, or the neglect or default of, a person lodging with the tenant or a sub-tenant of his, where the court is satisfied that the tenant has not, before the making of the order in question, taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant, as the case may be. From the particulars of claim it is clear that the case which was being put forward by the plaintiffs for possession under Case 1 and Case 3 was identical, namely that here there was a requirement on the landlord plaintiffs to carry out repairs and the tenants were preventing the plaintiffs from carrying out those repairs. In both cases it is implicit in the allegation that the basis of what was being alleged was that the tenants had unreasonably refused a request by the plaintiffs to carry out those repairs. It can be said in relation to the alternative manner in which the case was put forward under Case 1 and Case 3 of Schedule 15 to the Act that the learned judge did not appreciate the manner in which the case was being put forward by the plaintiffs in respect of Case 3, because it is clear from his judgment that he considered that the waste which was being alleged was something connected with the overflowing of a washing machine, which clearly in itself would not amount to a matter of substance. However, if there was this failure on the part of the learned judge, it really had no possible relevance to the outcome of the proceedings, because an identical allegation was made under Case 3 to that made under Case 1 and the learned judge dealt with Case 1. Furthermore, even if the plaintiffs succeeded in establishing a breach of Case 1 or Case 3, they would obtain an order for possession in their favour only if the learned judge was satisfied it was reasonable to make an order for possession. The learned judge was not so satisfied. He came to the conclusion that, in the circumstances, this was not a case where it would be reasonable to make an order for possession. In these circumstances, the fact that the learned judge did not deal with the matters arising out of the alleged breach of the obligation on the tenants to allow the plaintiffs access to carry out repairs under Case 3 really does not take the matter any further. This was a case where, in my judgment, the basis was essentially one of fact for the learned judge. Having looked at his long and detailed judgment, it is quite clear to me that he considered the facts very carefully and, having come to the conclusions which he was entitled to come to (first of all, that there was no breach of the obligations under Case 1 and, second, that it was not reasonable to make an order for possession), it seems to me that the judgment which he came to was one which could not possibly be impugned by this court. I should, however, add that the learned judge did grant relief. He granted the relief in the form of a series of declarations which were designed to clarify for the parties exactly what the learned judge thought should happen in the future, and he set out those declarations in the order which is before the court. They are clearly sensible declarations. However, unfortunately, the parties have not yet complied with those declarations. The fault for that situation arising is not a matter for this court. However, Mr Dedman has indicated that one problem is because there was no date specified, for example, for the defendants affording the plaintiffs access to the premises and all reasonable facilities for executing repairs in the premises. If that be the position and that is causing a difficulty, it seems to me that it would have been open to the parties to go back to the judge and ask him to fix a date. However, I return to what I said in opening this judgment about the regrettable situation which has arisen in this case. It is clear beyond peradventure that these repair works must be carried out. It is clear that the learned judge took the view that it would be necessary for the defendants to move out of the premises while the repair work was being carried out. It is also clear from the learned judge’s133 judgment that the plaintiffs are not entitled to possession of these premises, which are controlled premises, and that the defendants are entitled to remain in the premises at the present time as statutory tenants. In those circumstances, bearing in mind that both parties have the benefit of legal advisers, I would very much hope that one result of this appeal will be that the parties, before they leave this court, will sort out their differences and work out a sensible and practical arrangement to enable the work which is necessary to be carried out by agreement and without involving the courts further. It is in the interests of the parties that this should happen and it is about time that they showed sufficient maturity to achieve the agreement which is necessary. I would dismiss this appeal. Agreeing, BELDAM LJ said: I add only a few words of my own out of deference to the argument addressed to us by Mr Dedman. As Woolf LJ has said, after notice to terminate the periodic tenancy was given on June 14 1986, the tenancy of the respondents became a statutory tenancy. In a matter of days, after the expiry of the notice to quit, these proceedings were begun by the first appellant by summons in which he set out in short form the reasons why he claimed possession of the premises. In effect, he was saying that there were substantial repairs which needed to be carried out to the property; they were repairs which the local council had ordered him to carry out; that the respondents were refusing temporary accommodation; that they were overcrowded; and that he could not continue further repairs with the tenants in occupation. Thereafter, there was correspondence between the parties and their advisers, from which it became plain that the respondents were very concerned that, if they left the premises, the repairs which were carried out might be accompanied by considerable improvements. They were worried, first, because they felt that the work to be carried out might limit the amount of the accommodation which they have and, second, no doubt, because they felt that, if improvements were carried out, they might become liable for an increased rent. In the autumn of 1986 the particulars of claim were amended to state in clear terms that the appellants were entitled to possession because the premises were overcrowded. That plea was eventually abandoned before the learned judge, so that, effectively, the learned judge had to decide, as Woolf LJ has said, whether there were grounds for granting possession of these premises under section 98 of the Rent Act. This required the learned judge to decide whether the appellants could bring themselves within Case 1 or alternatively, since they had pleaded it, Case 3. But, as Woolf LJ has said, this question depended solely on whether there had been a breach of a condition or term of the tenancy. The learned judge, having heard the parties, having read the correspondence, concluded that there was no breach. To establish a breach of the condition which is implied by section 3(2) of the Rent Act, it was necessary for the appellants to establish a refusal on the part of the tenants to allow them access for the purposes of carrying out repairs. Now, there may be cases in which it is possible to infer a refusal because of continual prevarication, but in each case it is a question of fact and degree whether in the circumstances there has been a refusal by the tenant to allow access. The learned judge, having heard and seen the witnesses and read the correspondence, concluded that there had been no refusal and that, therefore, there was no breach, and in those circumstances it did not fall to him to consider the second question, which was whether or not it was reasonable to make an order. In all the circumstances, he clearly decided that the conduct of the tenants in this case had not been unreasonable and, therefore, that he could not make an order for possession on the grounds that there had been a breach of the condition. That is sufficient, in my view, to dispose of this appeal, but I would like to join with Woolf LJ in his expression of the hope that, the parties having now reached this court, the learned judge having decided all the matters between the parties, save perhaps only the time-limit with which to comply with the order for giving access for these repairs to be carried out, the parties will reach agreement here today. For those reasons I would dismiss this appeal. The appeal was dismissed with costs.