Hampstead Way Investments Ltd v Lewis-Weare and another

Rent Act 1977 — Question whether the statutory tenant of a flat who, jointly with his wife, purchased a house about half a mile away from the flat retained the statutory tenancy of the latter — Whether he occupied the flat as his residence within the meaning of section 2(1) and (3) of the 1977 Act in the light of his circumstances and the case law incorporated by section 2(3) — Appeal by tenant from decision of the Court of Appeal who had reversed a decision of the county court judge in the tenant’s favour — Tenant was a director and general manager of a night-club in the West End of London and was required by his occupation to work at night, until 4 am, five times a week from Tuesday to Saturday — He returned home about 5 am and was accustomed to sleep well into the next afternoon — Originally he lived in the flat with his wife, stepchildren, and a child of his second marriage — Later, however, he and his wife purchased the house referred to above and his wife and one stepdaughter thenceforth lived entirely in the house, the other stepdaughter having left the country — The stepson continued to live in the flat and the tenant used it for the purpose of sleeping on the nights when he worked at the night-club — He kept his clothes in the flat and had his mail addressed there, but never had any meals there, going to the house for a meal in the afternoons from Tuesday to Saturday and eating and sleeping in the house on Sunday and Monday — On these facts the House affirmed the decision of the Court of Appeal, but did not agree with them that the case was governed by Kavanagh v Lyroudias — Although not ruling that that case was wrongly decided, it was pointed out that the court there had not dealt with the relevant question as to whether the tenant there occupied the two flats as a composite home of the kind contemplated in Wimbush v Cibulia — The facts in the present case were very different and the question here was whether the tenant occupied the flat as a second home — On the authorities the very limited use made of the flat by the tenant was not sufficient to make it his second home — The flat was really the home of the adult stepson who carried on all the ordinary living activities there — The tenant did not therefore retain the status of a statutory tenant — Appeal dismissed This was an appeal by Courtney Lewis-Weare, tenant of a flat at 5 Meadway Court, Hampstead Garden Suburb, London NW11, and his stepson, Nishith Pandya, from a decision of the Court of Appeal, who had reversed a decision of Judge Hill-Smith at Willesden County Court and had granted possession of the flat to the landlords, Hampstead Way Investments Ltd. The house purchased by the121 appellant and his wife was at 113 Erskine Hill, situated in the same suburb as the flat and about half a mile from the latter. Paul de la Piquerie (instructed by Sears Tooth & Co) appeared on behalf of the appellant tenant; Ronald Bernstein QC and Nicholas Dowding (instructed by Grangewoods) represented the respondent landlords. In his speech, LORD BRANDON OF OAKBROOK said: In this appeal Courtney Lewis-Weare (‘the tenant’) and Nishith Pandya (‘the stepson’) are the appellants and Hampstead Way Investments Ltd (‘the landlords’) are the respondents. On or shortly before January 13 1982 the landlords began an action against the tenant and the stepson in the Willesden County Court, in which they claimed possession of a flat, 5 Meadway Court, Meadway, London NW11 (‘the flat’). On July 4 1983 Judge Hill-Smith dismissed the claim for possession on the ground that the tenant was protected by the Rent Act 1977. The landlords appealed against that decision and on February 24 1984 the Court of Appeal (Eveleigh and May LJJ) allowed the appeal and made an order for possession in favour of the landlords. The Court of Appeal refused the tenant and the stepson leave to appeal to your Lordships’ House, but leave for them to do so was later given by the Appeal Committee. The material facts, as found by Judge Hill-Smith or appearing from uncontradicted evidence, are these. The flat had two living-rooms, two bedrooms and a small boxroom. At some previous date the tenant had been granted by the landlords or their predecessors in title, a lease of the flat for three years from May 1 1970 to May 1 1973. In July 1970 the tenant married and his wife came to live with him at the flat. She already had two children by a previous marriage, a girl called Cheha and the stepson. In November 1971 the tenant’s wife had a further child by the tenant, a girl called Naomi. At all material times the tenant was employed as director and general manager of a night-club in the West End of London. In this employment he was required to work during the night five times a week from Tuesday to Saturday. He finished that work at 4 am. From the time of the marriage until 1978 the tenant, his wife and first the two older children and later Naomi, occupied the flat as their home. In that year the tenant and his wife bought jointly, with the assistance of a mortgage, a house, 113 Erskine Hill, NW11 (‘the house’). The house had two living-rooms and three bedrooms, one of which was very small and inconvenient. It was situated about half a mile from the flat. A certain amount of furniture was moved from the flat to the house, but the rest remained there, and the family then moved to the house and occupied it as their home. By then Cheha had left and gone to America, so that the persons to be housed were the tenant, his wife, the stepson and Naomi. After the move, the wife and Naomi lived entirely at the house. The tenant on the other hand retained a room in the flat for limited use by him. His routine following the nights on which he worked was to sleep in the one room retained by him in the flat from about 5 am, when he got back to it from his work, until well into the afternoon. He then went to the house and had a light meal there prepared for him by his wife. After that, except on Sundays and Mondays, he went to the night-club and later ate his principal meal of the 24 hours there. The purpose of his sleeping at the flat, rather than at the house, was to avoid disturbing his wife and Naomi when he returned from work at about 5 am. The tenant kept his clothes in his room at the flat and had his mail addressed to him there. He never had any meals at the flat, nor did he entertain any of his friends there. On Sunday and Monday, when the tenant was off work, he spent his time at the house, sleeping and eating there. In so far as he received and entertained friends, he did so at the house. While the tenant retained the limited use of one room at the flat as described above, the stepson, who was a self-employed computer programmer and engineer, occupied the rest of the flat for all usual living activities. The tenant paid all outgoings relating to the house. He also paid the outgoings relating to the flat, including the rent, but excluding the cost of gas, which was paid by the stepson. The telephones at both the house and the flat were rented by the tenant, the telephone accounts were paid by him, and both numbers were shown in the telephone directory as his. It is not in dispute that the right of the tenant to remain in possession of the flat depends on the application to the particular circumstances of the case of the provisions contained in sections 1 and 2 of the Rent Act 1977. Those sections read: 1. Subject to this Part of this Act, a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act. Any reference in this Act to a protected tenant shall be construed accordingly. 2. (1)  Subject to this Part of this Act — (a)   after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it; . . . (3) In subsection (1)(a) above . . . the phrase ‘if and so long as he occupies the dwelling-house as his residence’ shall be construed as it was immediately before the commencement of this Act (that is to say, in accordance with section 3(2) of the Rent Act 1968). Section 3(2) of the Rent Act 1968, to which reference is there made, provides: (2)  In paragraph (a) of subsection (1) above . . ., the phrase ‘if and so long as he occupies the dwelling-house as his residence’ shall be construed as requiring the fulfilment of the same, and only the same, qualifications (whether as to residence or otherwise) as had to be fulfilled before the commencement of this Act to entitle a tenant, within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, to retain possession, by virtue of that Act and not by virtue of a tenancy, of a dwelling-house to which that Act applied. It is common ground in the present case that the flat, when it was first let to the tenant, was let as a separate dwelling-house within the meaning of section 1 of the Rent Act 1977. The result of that is that when the lease for three years expired on May 1 1973 the tenant became, and remained, so long as he occupied the flat as his residence, the statutory tenant of it within the meaning of section 2(1)(a) of the Rent Act 1977. The question in dispute between the parties is whether, after the move from the flat to the house in 1978, the tenant continued to occupy the flat as his residence. The tenant contends that he did; the landlords contend that he did not. My Lords, the result of section 2(1)(a) of the Rent Act 1977, together with section 3(2) of the Rent Act 1968, is that the question, whether the tenant continued to occupy the flat as his residence after the move, has to be decided by reference to the case law on the subject which grew up during the period after the coming into force of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 and before the coming into force of the Rent Act 1968. It follows that, in order to decide the question in dispute, it is necessary to consider some of the relevant authorities forming part of that case law. My Lords, the case which the tenant sought to make at the trial in the county court was that he occupied two dwelling-houses as his residences: one was the house and the other was the flat. As will appear when I come to examine the authorities, there is no principle of law to prevent a person occupying two dwelling-houses as his residences at the same time and being a statutory tenant of either or both. Judge Hill-Smith, however, did not accept the tenant’s contention in this respect. Instead he reached a different conclusion, which might aptly be called a half-way house conclusion, which it does not appear that he was invited to do. He expressed his findings and conclusion as follows: The view I take on the evidence is that the flat at Meadway Court is ancillary to and part of the home itself. No doubt if Erskine Hill had four or five bedrooms no question would arise. It is clear that the size of Meadway Court was such as to make the acquisition of additional accommodation very desirable for the first defendant. I come to the conclusion that, viewing the evidence as a whole, at the time of acquisition there was no intention by the first defendant to abandon 5 Meadway Court or to give up occupation, and indeed nor, it would seem, in view of the age of the second defendant, would it have been possible for him to occupy Erskine Hill. I am satisfied that he was a member of the first defendant’s family. On the basis of these findings and conclusion, Judge Hill-Smith held, in effect, that the tenant still occupied the flat as his residence, and was therefore a statutory tenant protected by the Rent Act 1977. The first judgment in the Court of Appeal was delivered by May LJ. He expressed sympathy with the tenant’s case, but he considered himself bound by a previous decision of the Court of Appeal, Kavanagh v Lyroudias (1983) 269 EG 629, [1984] 1 EGLR 88, which he regarded in any case as having been correctly decided, to allow the appeal and give judgment for the landlords. Eveleigh LJ, following, put his decision in favour of the landlords on two grounds. First, he said that, on a true view of the facts, it appeared to him that the tenant was using accommodation in the stepson’s home as casual accommodation quite separate from the family home which he shared with his wife and daughter at the house. Secondly, he said that, like May LJ, he122 considered himself bound by Kavanagh v Lyroudias to decide the case against the tenant. My Lords, in order to determine this appeal, it is necessary to examine the more important cases decided between 1920 and 1968 on what is meant by the occupation of a dwelling-house by a person as his residence or, as it is put in many of the cases (without, in my view, any difference of meaning), the occupation of a dwelling-house by a person as his home. It will further be necessary to consider the nature and scope of the Court of Appeal’s decision in Kavanagh v Lyroudias and whether it was rightly regarded by the Court of Appeal as applying to, and governing their decision in, the present case. Until the coming into force of the Rent Act 1968 the principle that a person could only be a protected tenant of a dwelling-house so long as he occupied it as his home was one which was not expressly laid down in any of the earlier Rent Acts. It was, rather, one which had been developed by judges as a matter of case law. The leading case on the existence of such a requirement is Skinner v Geary [1931] 2 KB 546. That requirement having been laid down in Skinner v Geary there followed a series of decisions on what was meant by occupation of a dwelling-house by a person as his home. Those decisions all depended on the particular facts of each case and, as might be expected, are not always easy to reconcile. That being so, I do not consider that it would serve any useful purpose to examine each of such decisions in detail. In view of the terms of section 3(2) of the Rent Act 1968, it seems to me that the only useful course to take is to see to what extent it is possible to derive, from the decisions concerned, any propositions of general application with regard to the qualifications which have to be fulfilled, as to residence or otherwise, in order to create a situation in which a person is occupying a dwelling-house as his home. Approaching the matter on that basis, it seems to me that the following propositions of general application, relevant to the present case, can be derived from the decisions concerned: (1)   A person may have two dwelling-houses, each of which he occupies as his home, so that, if either of them is let to him, his tenancy of it is protected by the Rent Act 1977. Langford Property Co Ltd v Tureman [1949] 1 KB 29. (2)   Where a person is a tenant of two different parts of the same house under different lettings by the same landlord and carries on some of his living activities in one part of the house and the rest of them in the other part, neither tenancy will normally be protected. If, however, the true view of the facts is that there is, in substance, a single combined or composite letting of the two parts of the house as a whole, then the tenancies of both parts together will, or anyhow may, be protected. Wimbush v Cibulia, Wimbush v Levinski [1949] 2 KB 564. (3)   Where a person owns one dwelling-house which he occupies as his home for most of his time, and is at the same time the tenant of another dwelling-house which he only occupies rarely or for limited purposes, it is a question of fact and degree whether he occupies the latter dwelling-house as his second home. Langford Property Co Ltd v Tureman [1949] 1 KB 29; Beck v Scholz [1953] 1 QB 570. That principle has been followed and applied in cases since 1968: see Roland House Gardens Ltd v Cravitz (1974) 29 P & CR 432 and Regalian Securities Ltd v Scheuer (1982) 263 EG 973, [1982] 2 EGLR 96. I turn now to examine the case of Kavanagh v Lyroudias (1983) 269 EG 629, [1984] 1 EGLR 88, on the authority of which both members of the Court of Appeal in the present case considered themselves bound to give judgment for the landlords. The facts of that case, which were somewhat unusual, were these. The landlord of a dwelling-house, 23 Rutland Street, London SW7, brought an action for possession of it in the West London County Court. His main case was that the tenant of it could not claim the protection of the Rent Acts because he no longer occupied the dwelling-house as his home. The tenant had occupied the next-door house, no 21, from about 1955, and until 1971 that was the only relevant property which he had. He shared it for the most part with a friend, C, although the latter was from time to time away living in the country. C retired from work in about 1973 and took up full-time residence at no 21. C was at that time sufficiently ill to impose on the tenant some responsibility for looking after him. The tenant himself was also anxious to have a bedroom of his own, which he did not have in no 21. In 1973 the landlord of no 21 offered the tenant a lease of no 23, which he also owned, and the tenant accepted the offer gladly. Subsequently the reversions of no 21 and no 23 passed into the hands of different landlords. The accommodation in no 21 and no 23 was basically the same. Each house had a basement, a ground floor and a first floor. At no 21 the basement was used as a combined kitchen and dining room, the ground floor was used as a living-room, and the first floor had a double bedroom and a bathroom. At no 23 the basement contained a gas-cooker in working condition, the ground floor was used as a study with a telephone extension from no 21, and the first floor had a bedroom and a bathroom, the latter without any hot-water supply. Each house was physically entirely separate. Each house had a garden, but the two gardens were used as one single garden. In this connection the garden gate of no 23 had been blocked-up, but the blocking-up was readily removable if it should be desired to remove it. During the material period before the action for possession was brought, the tenant had been sleeping for the most part in no 23. He had been keeping his clothes for the most part in no 21, but had some clothes also in no 23. He had been using the bathroom at no 21 to bathe, because of the absence of hot water in the bathroom at no 23. The tenant had been using the living-room at no 21 and also the combined kitchen and dining-room there, where all his meals were prepared and eaten. He had been using the study at no 23 on occasions when he brought work home from his business at the Greek Embassy. He had never used no 23 for cooking or eating. On one occasion his sister, who was staying for a short time in no 23, baked some cakes there, and on two other occasions she or another member of the tenant’s family had stayed at no 23. On these facts the county court judge concluded that the tenant was in occupation of no 23 sufficiently to afford him the protection of the Rent Acts. On an appeal by the landlords, the Court of Appeal (Sir John Arnold P and Hollings J) took the view that the county court judge had not given any consideration to the question whether no 23 was occupied separately from no 21 as a complete home in itself, and that, if he had done so, he would have found it impossible to answer the question otherwise than in the negative. In these circumstances, the Court of Appeal held that the tenant’s tenancy of no 23 was not protected and that the landlords were accordingly entitled to possession of that house. Your lordships were invited by counsel for the appellants in the present case to hold that Kavanagh v Lyroudias (1983) 269 EG 629, [1984] 1 EGLR 88 had been wrongly decided. In my opinion, it is not necessary for your lordships to decide that question, because the facts in Kavanagh v Lyroudias differ materially from those in the present case. Although the Court of Appeal in Kavanagh v Lyroudias considered that the proper question to be asked and answered was whether no 23 was occupied separately from no 21 as a complete home in itself, it seems to me that, on the authorities referred to earlier, there was a further question which needed to be asked and answered. That further question was whether the defendant tenant occupied no 21 and no 23 as a combined or composite home of the kind contemplated in Wimbush v Cibulia, Wimbush v Levinski [1949] 2 KB 564, bearing in mind that the leases of both houses had originally been granted to the tenant by a person who was the owner of both, and that it was only subsequently that the reversions of the two houses had passed into different hands. If I am right about this, the Court of Appeal in Kavanagh v Lyroudias reached their decision by asking and answering only one of the two relevant questions. It does not, however, follow that the decision itself was wrong, for the further question which I consider should have been asked and answered would obviously have been an extremely difficult one, on which it would be wrong to express an opinion without having first heard full argument on it. In fact the point was hardly raised before your lordships at all. It is, in my view, essential to bear in mind that all these Rent Act cases turn on their particular facts, and it is seldom helpful to decide one case with one set of facts by reference to another case with a different set of facts. On the view which I have expressed with regard to Kavanagh v Lyroudias (1983) 269 EG 629, [1984] 1 EGLR 88, there is no real parallel between the facts of that case and those of the present case. No 21 and no 23 in the former case were next-door to each other and were treated by the tenant, for all practical purposes, as one unit of living accommodation, in one half of which he carried out some of his living activities and in the other half of which he carried out the rest of those activities. By contrast, in the present case, since the house and the flat were half a mile away from each other, they could not possibly be regarded as constituting together a single unit of living accommodation. That the house and flat together constituted one unit of living accommodation was nevertheless the conclusion reached by Judge Hill-Smith in the present case. For the reason which I have just given, however, I do not consider that that conclusion can be supported. In my opinion, on the facts of the present case, there is one, and only one, question to be asked and answered in relation to it. That question is whether the tenant occupied the flat as a second home. My Lords, I set out earlier in detail the very limited use made of the flat by the tenant, and it is unnecessary to rehearse these matters again. If one treats the question as one of fact and degree, as the authorities require that a court should do, it is, in my opinion, impossible to conclude that that limited use of the flat made by the tenant was sufficient to make the flat his second home. The flat was in truth the home, not of the tenant, who slept there on five nights a week and kept his clothes there, but that of the adult stepson, who carried out all an ordinary person’s living activities there. On that ground, I would hold that the tenant was not occupying the flat as his residence within the meaning of section 3(2) of the Rent Act 1968, as incorporated into section 2(3) of the Rent Act 1977, and that his tenancy of the flat was not, therefore, protected by the latter Act. It follows that I would affirm the judgment of the Court of Appeal, though not on the ground that the case is governed by Kavanagh v Lyroudias (1983) 269 EG 629, [1984] 1 EGLR 88, and dismiss the appeal. LORDS FRASER OF TULLYBELTON, ELWYN-JONES, KEITH OF KINKEL and TEMPLEMAN agreed with the speech of Lord Brandon of Oakbrook and with his reasons and did not add anything of their own.