Ghelani v Bowie and others

Rent Act 1977, Cases 9 and 11 in Schedule 15 — Appeal by landlord from decision of county court judge dismissing her claim for possession of dwelling-house — The house had been let on a regulated tenancy for a term of 11 months jointly to five young trainee surveyors — The landlord’s claim appears to have been in the alternative under Case 9 and Case 11 — The rent at the commencement of the tenancy was £180 a week for the dwelling-house, which consisted of five bedrooms and kitchen, with, presumably, the usual additions — This rent was later reduced by the rent officer and rent assessment committee to £85 a week There was some conflict of evidence before the county court judge as to what the landlord had stated as her intentions at the commencement of the tenancy — She claimed to have said that she intended to go to India for medical treatment but would return and would then wish to resume possession of the accommodation — Contrary evidence was given by tenants, who stated that she had not given any indication that she would require to repossess the dwelling-house and indeed that she had suggested that the tenancy might be renewable — The131 judge found that when the appellant let the premises she did not at that stage intend to return to the property but ‘intended to let it for the purposes of gain as a landlady’ — The judge also found that at no time thereafter did she reasonably or genuinely require the premises as a residence for herself within the meaning of Cases 9 and 11 — Having made these findings, the judge said that it was unnecessary for him to decide whether the appellant had notified the respondents at the outset of the tenancy that possession might be sought under Case 11 It was not suggested by the appellant that the judge had failed to apply the correct principles in such cases as Kennealy v Dunne — It was, however, submitted that there was no sufficient evidence on which the judge could have found against her in respect of either Case — This submission was rejected by the Court of Appeal, who held that there was ample evidence to support the judge’s findings and that there were no grounds for disturbing his decision — Appeal dismissed The following case is referred to in this report. Kennealy v Dunne [1977] QB 837; [1977] 2 WLR 421; [1977] 2 All ER 16; (1976) 34 P&CR 316; [1977] EGD 155; 242 EG 623, [1977] 1 EGLR 50, CA This was an appeal by Miss Usha Ghelani from a decision of Judge Hill-Smith, at Willesden County Court, rejecting her claim for possession of a dwelling-house at 41 Douglas Avenue, Wembley. The defendants below, the present respondents, were Steven Bowie and four other young men, all of whom were doing their practical training, following a polytechnic course, for the surveying profession at various offices in the West End of London. Wayne Clark (instructed by John Byrne & Co) appeared on behalf of the appellant; Richard Blomfield (instructed by Alexander & Partners) represented the defendants. Giving the first judgment at the invitation of O’Connor LJ, SHELDON J said: This is an appeal by Miss Usha Ghelani from the decision of His Honour Judge Hill-Smith given on June 15 1987 at the Willesden County Court dismissing her claim for possession of a dwelling-house known as 41 Douglas Avenue, Wembley. There are five respondents, jointly the tenants of the premises, and each of them the occupant of a separate bedroom. The property is one of which the applicant is the freehold owner. It was bought by her in May 1986 when it was a two-storey four-bedroom house with a lounge and other accommodation. By her account, she then, until about August 1986, lived in the house, where she says she was visited at one time by her parents and on another occasion by a friend — none of whom, in the event, were called as witnesses. On the other hand, a neighbour, Mr Ghandi, who did give evidence on behalf of the defendants, said that during this period it was his impression that ‘nobody was living there’; he never saw any lights on. One respondent to the appeal, Mr Simon Dunn, also gave evidence that his impression of the house when he first saw it was that it was ‘dark and dirty, not lived in’. However that may be, according to the appellant, in the course of that summer she wished to pay a visit to India to seek treatment for a skin complaint from a homeopathist in Bombay, a visit which she anticipated would last some months. She decided, therefore, she said, to let the premises while she was away. For this purpose, she put it into the hands of agents and, through their auspices, was introduced to the five respondents, each of whom, on September 9 1986, put their names to a letting agreement of that date for a term of 11 months from August 23, terminable by four weeks’ notice on either side, at what is accepted as having been a comprehensive rental of £180 a week. The fact, furthermore, that there were five single individuals intending to occupy a house designed with only four bedrooms meant that what would otherwise have been the ground-floor sitting-room would have to be converted into a fifth bedroom. This conversion, therefore, was carried out by the appellant, at the respondents’ request, by opening up an additional means of access to that room so as to obviate the necessity of its occupant always having to walk through the kitchen to gain entry to it. Between August 23 and September 9 1986, moreover, all five respondents had entered into occupation of the premises. Having done so, they came to the conclusion that the agreed rent of £180 a week was excessive and promptly obtained first from the rent officer and subsequently, on appeal, from the rent assessment committee an adjudication that a fair rent for the whole premises was a weekly rent of £85 — less than half that demanded. The consequence of that is described by the learned judge in his judgment in these terms: What happened thereafter was that so soon as the determination of the rent assessment committee had been communicated and there was an appeal launched by the plaintiff to that assessment committee, a notice to quit was served and these proceedings later launched. That notice to quit was a notice dated December 12 1986 — started less than four months after the start of the stipulated 11-month term. It is common ground that the letting agreement in question created a regulated tenancy within the provisions of the Rent Act 1977. It follows that an order for possession of the premises could be obtained by the appellant only if she were able to bring the case within one or more of the relevant provisions of that Act. By section 98(1) it is an overriding requirement of the Act that a court will not make an order for possession unless it considers it reasonable to do so. Subject to that, by Case 9 in Schedule 15, a court may make an order for possession ‘where the dwelling-house is reasonably required by the landlord . . . as a residence for (a) himself. . .’. That was the basis of the appellant’s claim under that head. Likewise, one of the conditions which (by para 2 of Part V of Schedule 15) must be satisfied before an order for possession can be made under Case 11 is that: the dwelling-house is required as a residence for the owner or any member of his family who resided with the owner when he last occupied the dwelling-house as a residence. In the event, in this context also it is not suggested by the appellant that she requires the property as a residence for anyone but herself. Unless the court is satisfied as to that, therefore, it is unnecessary to consider the other specific provisions of Case 11. For the record, however, so far as is relevant to this appeal, the Case provides that a possession order ‘must’ be made where the person who occupied the dwelling-house as his residence (in this Case referred to as ‘the owner-occupier’) let it on a regulated tenancy and not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case . . .; or that such an order may be made if the court considers it ‘just and equitable to make an order for possession’ even though para (a) had not been complied with. The ‘relevant date’ for the purposes of this case was August 23 1986, the ‘date of commencement of the regulated tenancy in question’. It is not clear to me whether the learned judge accepted that the appellant had ever occupied the premises as a residence. On the whole, having regard to the conflict of evidence on the point and to his other findings, I think it unlikely. There can be no doubt, however, as to his findings, first, that, when in September 1986 she let the premises to the respondents, the appellant ‘did not intend at that stage to return to the property, but intended to let it for the purposes of gain as a landlady’; and, second, that at no time thereafter did she reasonably require the premises as a residence for herself within the meaning of the provisions of Cases 9 and 11. In this latter context, the judgment of the learned judge reads as follows: She says that she requires and reasonably requires the property, this four-bedroomed property in Douglas Road for herself. The particulars of claim recited initially that it was for herself and for her father and mother: but the amended particulars of claim confine the application under Case 9 to claiming the property for herself. Does she reasonably require that property?  The onus is upon her to satisfy me in relation to that. I have been referred, of course, to the tests laid down in various authorities — does she genuinely need that property or does she merely desire it?  If she merely desires it that is not enough but it does not have to be an absolute necessity. Does she genuinely need the property now?  The conclusion I reach on all the evidence is that she does not genuinely need the property. I am satisfied, as I have said, on the evidence that this was an investment property and she does not satisfy me on the balance of probabilities that she requires the property as a residence for herself. It is far too large for herself alone. He added also that, in these circumstances, it was unnecessary for him to decide whether the appellant, at the outset of the tenancy, had notified the respondents that possession might be sought under the provisions of Case 11 or whether, in the event, it would have been reasonable to make a possession order. It has not been suggested by Mr Clark on behalf of the appellant132 that in reaching his conclusions the learned judge did not, at least ostensibly, apply the correct principles of law: that the words ‘reasonably require’ in Case 9 import a ‘genuine need’ on the part of the landlord — ‘Something more than desire; although at the same time something much less than absolute necessity’ — and that the word ‘required’ in Case 11 imports no more than (in the words of Stephenson LJ) a ‘genuine requirement’ and a ‘present intention’ to occupy — or (per Browne LJ) that the landlord ‘genuinely desires to have the house as a residence for himself . . . and genuinely has the immediate intention of using it for that purpose if he does get possession’; and that, in either case, the burden of proving such a requirement is on the landlord — see Kennealy v Dunne [1977] QB 837. In substance, however, the appellant complains that there was not sufficient evidence upon which the learned judge could have found against her in either context. In support of his submission to that end, Mr Clark in his skeleton argument has rehearsed much of the evidence given by the appellant at the trial and has relied upon it as though it were acknowledged fact accepted by the learned judge. Plainly, however, in my opinion, this is not so: if he had accepted it, the learned judge, in my view, would undoubtedly also have found in favour of the appellant on the issues in question. In fact, however, there was a clear conflict of recollection between the appellant and two of the respondents, Mr Dunn and Mr Fenwick, who gave evidence. I have referred already to one such disagreement — as to whether the property had been occupied by the appellant before it was let to the respondents. Another is to be found in the appellant’s evidence that, when negotiating the tenancy agreement, she had said that she would want them ‘out at the end of 8 or 11 months’, but that she ‘might come back earlier’ and, if so, that she ‘would give 4 weeks’ notice’ — to be contrasted with Mr Dunn’s evidence to the effect that ‘she explained — 11 months’ contract — might be renewable if satisfactory tenants’ and that she ‘didn’t say she intended to come back’. Additionally, there was the evidence of Mr Fenwick that the appellant ‘didn’t say that she would need the premises at the end of the period’ — that there was ‘no mention of temporary accommodation’ — and that ‘she didn’t say short let’ — and, indeed, that ‘at time of signing the agreement she said she would not operate the clause’, presumably the clause providing for notice to quit. The learned judge also saw fit to describe the respondents in some, clearly favourable, detail. They were young trainee surveyors, all from ‘relatively good homes’ in different parts of the country, all of whom had had a common education at the Portsmouth Polytechnic, all of whom were now doing their training in the West End of London ‘at various offices of repute’, all of whom needed somewhere in London to live — none of whom had any other convenient accommodation or any significant capital assets. In the circumstances — although he did not say so in terms — he may well have concluded that they would not have accepted a tenancy upon the limited and uncertain terms now being alleged by the appellant. It is also uncertain whether the learned judge accepted the appellant’s evidence that her reason for letting the property was her intention to go to India for treatment. According to Mr Dunn, she did not say that she was going abroad and, according to Mr Fenwick, she did not say anything about going to India. Nor, if that were her intention, is it easy to understand why it was abandoned, even if or why, as she said she claimed, advice to that end was given to her by a Citizens’ Advice Bureau. However that may be, much of this is speculation. What is clear is that the learned judge found, first, that the appellant had failed to satisfy the burden of proof, on a balance of probabilities, that she reasonably or genuinely required the premises as a residence for herself and, second, that when she let them to the respondents she had done so without any intention at that stage to return to them. In my opinion, a judge — particularly with regard to such clear issues as that — is not obliged to detail every step along the line which has led to his conclusion. They are findings which, in my view, there was ample evidence to support — in addition to which there is the added fact that the learned judge also had the opportunity (not available in this court) of seeing and hearing the appellant and the other witnesses and of assessing their respective evidence. In the circumstances, in my judgment, no grounds have been shown which would justify this court in disturbing the learned judge’s conclusions or for saying that they are wrong. Accordingly I would dismiss this appeal. O’CONNOR LJ agreed and did not say anything in addition. The appeal was dismissed with costs not to be enforced without the leave of the court. Legal aid taxation of both sides’ costs was ordered.