Florent v Horez

Rent Act 1977, Schedule 15, Cases 1 and 2 — Tenant’s appeal against county court judge’s order for possession — Landlord claimed that tenant was in breach of his covenant not to carry on any profession, trade or business on the premises and had also been guilty of conduct which was a nuisance or annoyance to adjoining occupiers — Tenant was chairman of a Turkish Cypriot organisation in London — The organisation’s mail was sent to the tenant’s flat, meetings were held there and there was evidence of disturbance from the arrival of callers, often arriving in groups, some at night and in the early hours of the morning — The disturbance from noise had, however, abated before the proceedings for possession commenced — Nevertheless the tenant’s activities in connection with his organisation continued, including meetings and visits to his flat by strangers at night — The county court judge held, under Case 1 of Schedule 15, that the tenant had carried on a business contrary to the covenant in his tenancy and, under Case 2, that there had been nuisance or annoyance to adjoining occupiers by reason of the visits of strangers to the tenant’s flat — Held, dismissing the appeal, that the judge had directed himself correctly in accordance with such authorities as Rolls v Miller and Town Investments Ltd v Department of the Environment as to the wide meaning of ‘business’ and was satisfied on the facts that the tenant’s activities went beyond those ancillary to normal domestic life — It was reasonable on the judge’s findings to make the order under Case 1 and also under Case 2, notwithstanding that the nuisance had abated This was an appeal by the tenant, S H Horez, from a possession order made by Judge Leach at Clerkenwell County Court in favour of the landlord, Amanda Florent, in respect of a top-floor flat at 32 Muswell Road, London N10. P Walter (instructed by Wallace Bogan & Co) appeared on behalf of the appellant; D H J Powell (instructed by Strain Keville & Co) represented the respondent. Giving the judgment of the court, DUNN LJ said: This is an appeal from an order of His Honour Judge Leach sitting at the Clerkenwell County Court on December 7 1982 whereby he made an order for possession of the top floor of 32 Muswell Road, London N10. The defendant was holding over as statutory tenant of a protected tenancy, and the judge made the order under Case 1 of Schedule 15 to the Rent Act 1977 on the ground that the defendant was in breach of an obligation of the protected tenancy, namely of a restrictive covenant as to user. He also made an order under Case 2 on the ground that the defendant had been guilty of conduct which was a nuisance or annoyance to adjoining occupiers, and that it was reasonable to make an order. The defendant now appeals on the grounds, firstly, that he was not in breach of the user covenant, and, secondly, that as the nuisance had abated by March 1981 before the proceedings were commenced it was not reasonable for the judge to make an order. By an agreement in writing made on January 10 1976 between the predecessor in title of the plaintiff and the defendant, the defendant took a protected tenancy of the flat on the second floor of 32 Muswell Road. The agreement contained a covenant in the following terms: Not to carry on any profession, trade or business on the premises or let part of the premises to paying guests. On the termination of the contractual tenancy on November 24 1976 the defendant held over as statutory tenant subject inter alia to that covenant. In July 1977 the tenant set up the Britain Turkish Cyprus Committee (the committee). According to the judgment: Its address, as registered with the London representative of the Turkish State of Cyprus, is 32 Muswell Road. It has approximately 170 members and is run106 by an executive committee of 10 members, consisting of the defendant as chairman, a vice chairman, a secretary, a press officer, a treasurer, a student’s officer, a publications’ officer and three other elected members. It has no office, and the work involved in the organisation which would normally be done in an office, if it had one, is divided between the homes of the chairman and two other members of the executive committee. That part of the organisation’s mail which is directed to the defendant’s flat averages 15 or 16 letters a day. During the years 1980 and 1981 meetings of the executive committee were held in the defendant’s flat. There is in the agreed bundle of documents a copy of the organisation’s constitution. Those of its objects which appear to me to be most relevant for the present purposes are those of promoting cultural links between the Turkish and non-Turkish communities in this country; assisting young Turks in this country and to maintain contact with their own heritage, language and culture; promoting a sense of identity within the Turkish community in this country; promoting the unity of all Turks in this country and promoting their wellbeing within the multi racial structure of this country; and providing a point of contact for non-Turks interested in Turkish culture. It seeks to achieve these objects by, amongst other things, an informal counselling service for Turkish nationals with regard to their day to day problems; by holding meetings, conferences, study group and social functions; and by issuing pamphlets, news letters and papers. It appears to be financed, at least in part, by membership subscriptions, but is non profit making. The defendant does other work in the sphere of community relations, but has no other regular job. The committee has printed letter heads, including its address at 32 Muswell Road. It also has a printed card, which I think can be fairly described as a ‘business card’ of which I have seen a specimen which the defendant gave to the plaintiff at about Christmas time in 1981. The card bears the committee’s name and ‘logo’, identifies the defendant as chairman, and bears the address 32 Muswell Road. It also bears a telephone number which is the number of the telephone in his mother’s nearby home. There is no telephone in the defendant’s flat. The defendant told me that he had had 1,000 of these cards printed. In January 1980 Mrs Read became the tenant of the first-floor flat at 32 Muswell Road. On February 18 1980 the plaintiff agreed to buy the freehold of the premises subject to the existing tenancies. In March 1980 she moved into the ground-floor flat and has remained there ever since. Apart from three flats, one on each floor, there is a room on a half-landing which is let from time to time to various tenants. There is a common front door to the premises leading into a hallway. There is a locked door leading into the plaintiff’s flat and a common staircase leading to the first and second floors, each of the flats having its own front door. On August 18 1981, following correspondence between the plaintiff and the defendant and their respective solicitors, the plaintiff commenced proceedings for possession in the Clerkenwell County Court. Particulars of claim were amended on April 6 1982, and the case was heard on October 18 and 19 1982. Although numerous grounds for possession had been relied on in the amended particulars of claim, the judge rejected all but two. He held under Case 2 that the defendant was guilty of conduct which was a nuisance and annoyance to adjoining occupiers, that is to say the plaintiff and Mrs Read, by permitting and authorising people, including members of the committee, to come and go at all hours of the night. The judge expressly accepted the evidence of the plaintiff on this issue. He said in his judgment: The plaintiff complains that from the time in March 1980 when she went into residence in her flat, until about a year later, she was frequently disturbed late at night by persons calling at the defendant’s flat on the top floor. Some (at least three) of these callers, who were complete strangers to the plaintiff, must, she said, have had keys to the external front door, because they were able to let themselves in through that door and set off up the staircase without apparent reference to anyone on the top floor. They often arrived in groups of two or more people, they habitually slammed the external front door behind them, and their foot falls, and their conversation, could be heard as they went up the stairs. Sometimes there were callers who did not appear to have keys of the external front door, and these callers would call out, or whistle, to attract the attention of the occupants of the top floor, and a set of keys would then be thrown down to them. Events of this kind occurred, according to the plaintiff, at least two or three times each week for the first year or so of her residence in her flat, and they occurred at all hours of the evening and night and often between I am and 3 am. The judge also accepted the evidence of Mrs Read, who gave evidence to the same effect, in preference to the evidence of the defendant. He went on to hold that the nuisance by noise abated by about March 1981, but that it was reasonable to make an order for possession because strangers continued to visit the top flat at all hours of the night, and he accepted that the plaintiff and Mrs Read were reasonably nervous and anxious by the presence in the house of a political organisation of which they knew very little. The judge expressed himself in this way: The plaintiff and Mrs Read have had, and continue to have, a perfectly reasonable fear and anxiety arising from the comings and goings of strangers by night, even though the element of noise and physical interference with their enjoyment came to an end some time ago. It does not at all affect my conclusion that there was, for about a year from 1980, a nuisance and a serious annoyance as a result of noise arising from the comings and goings. He went on to hold that unless an order was made there could never be any assurance that the situation would not revert to what he called the intolerable state in which he had found it was between March 1980 and March 1981. The judge held under Case 1 that the defendant’s activities in the flat in connection with the committee constituted a breach of his covenant not to carry on any business on the premises, that the breach was continuing, and accordingly it was reasonable to make an order on that ground as well. The principal ground of appeal is that the judge wrongly held that the defendant’s activities amounted to carrying on a business on the premises, and that he failed to pay sufficient regard to the scale of such activities, and failed to find that they were incidental to the defendant’s social and domestic purposes. Although the flat was let as a dwelling, the covenant in the lease did not contain an express prohibition, such as is very commonly inserted in leases of dwelling-houses, against using the flat other than as a private dwelling. But the object of such a covenant as appears here is to prevent the flat being used otherwise than as a dwelling, and if those words were not implied the covenant would be senseless. See Rolls v Miller (1884) 27 ChD 71 by Lindley LJ at p 87. Lindley LJ went on to say at p 88: When we look into the dictionaries as to the meaning of the word ‘business’, I do not think they throw much light upon it. The word means almost anything which is an occupation, as distinguished from a pleasure — anything which is an occupation or duty which requires attention is a business — I do not think we can get much aid from the dictionary. We must look at the word in the ordinary sense and we must look at the object of the covenant; Those words were accepted and approved by the House of Lords in Town Investments Ltd v Department of the Environment [1978] AC 359 by Lord Diplock at p 383 where he said: The word business is an etymological chameleon; it suits its meaning to the context in which it is found. It is not a term of legal art and its dictionary meanings as Lindley LJ pointed out in Rolls v Miller . . . embrace ‘almost anything which is an occupation, as distinguished from a pleasure — anything which is an occupation or duty which requires attention is a business’. That was said by Lindley LJ in connection with the construction of a covenant in a lease against the carrying on of any trade or business on the demised premises; and ever since there has been a consistent line of cases in which the broad meaning has been ascribed to the word ‘business’ in the context of covenants in leases restricting the permitted user of the demised premises . . . The wide interpretation to be put on the word ‘business’ in restrictive covenants of this kind is dictated by the evident object of the covenants. The reason for the wide interpretation to be put on restrictive covenants of this kind is, as Ormrod LJ said in Lewis v Weldcrest [1978] 1 WLR 1107 at p 1120, because such covenants are designed to preserve the amenities of residential premises and neighbourhoods, and if the word ‘business’ is not given as wide a meaning as possible the purpose of the covenant could readily be defeated. All this was accepted by Mr Walter in his able submissions on behalf of the appellant. But he said that in this case the flat was on the judge’s findings being used as a private dwelling and that the activities of the tenant in relation to the committee were merely ancillary to his residential user and did not constitute the carrying on of a business. His main proposition appears succinctly in his helpful skeleton argument in the following terms: A spare-time hobby, recreation or performance of a social duty in his home will not amount to the carrying on of a business unless either (1) there is a direct commercial involvement or (2) the use for such purposes ceases to be ancillary or subordinate to the residential use. Here there was no direct commercial involvement and the use for the purposes of the committee was merely subordinate to the residential use. Many examples were given in argument of persons active in social, religious or political groups and societies who carried on the affairs of the group or society from their own homes. It was said that, if the defendant in this case was in breach of covenant, so also107 would be all those worthy and admirable people who engaged in such activities from their own homes. But Mr Walter conceded that at the end of the day it was a matter of degree whether the activities in question were merely ancillary to the residential use, or whether it could fairly be said that because of their nature and scope they had ceased to be ancillary or subsidiary to that use so that they constituted a business user in breach of covenant. Once that concession was made, as it had to be made, it is a question of fact and degree for the judge whether the scale of the tenant’s activities is such as to constitute the carrying on of a business, or whether they are no more than ancillary to the main residential user. The judge made certain findings of fact on this question. He said: I have no doubt at all that the defendant’s activities in his flat connected with the committee constitute an ‘occupation’ or ‘duty’ as distinct from a pleasure or a leisure activity, and I have no doubt that his work for the committee is to him ‘a serious undertaking earnestly pursued for the purpose of fulfilling a duty assumed by him.’  I am satisfied that his work for the committee is something quite diverse from, and not merely incidental to, his ordinary domestic life. I do not suppose that his work for the committee occupies by any means all of his time during normal working hours, but I am satisfied that it is continuous and regular and not merely sporadic. I have no doubt, accordingly, that those activities can reasonably be described as a ‘business’ if one has regard simply to the meaning of the word ‘business’ in the context of the contractual term in the defendant’s tenancy agreement. In order to answer this question one has to look at the apparent object of the term and at the mischief at which it appears to be directed. It seems to me that the object of the term was to ensure that the residents in the house would not have to put up with any interference with their enjoyment of their own parts of the house, except such interference as necessarily arose from the use of the various other parts of the house for ordinary residential purposes: and that the mischief at which the term was directed was a possibility that ‘business’ activities, going beyond those which are merely ancillary to normal domestic life, might cause interference with such enjoyment which would not be caused by any normal residential activities.’ The judge concluded on the evidence that the activities of the tenant in relation to the committee went beyond the normal domestic and residential activity and amounted to a breach of covenant. The judge directed himself correctly in accordance with the test proposed by Lindley LJ in Rolls v Miller and approved by the House of Lords in Town Investments v DOE. Although he rejected the plaintiff’s claim that the defendant had ceased to use the flat as his residence, he found that in recent years he had often been away for long periods. This finding, together with the findings as to the use of the premises for the purpose of the committee, constitute ample evidence to support the judge’s view that the activities of the defendant could not reasonably be described as incidental to any normal social or domestic purpose. They had an adverse effect on the amenities of the premises which the covenant was designed to preserve. In those circumstances the activities amounted to a breach of covenant. As the breach is continuing it was rightly not suggested that the judge was wrong on the basis of a breach of covenant to hold that it was reasonable to make an order under Case 1. That is sufficient to dispose of this appeal, but on the judge’s findings in the circumstances of this case it was also reasonable for him to make an order under Case 2 notwithstanding that the nuisance was abated. Accordingly the appeal is dismissed. The appeal was dismissed. No order was made for costs except legal aid taxation on both sides.