Kavanagh v Lyroudias

Rent Act 1977, section 2(1)(a) — Tenant occupying two adjoining houses, nos 21 and 23, under separate tenancies — He used 21 for baths, cooking and eating and normal occupation of living-room and used 23 for sleeping and, on occasions, its study for work when he brought work home — Tenant given notice to quit terminating his contractual tenancy of 23 — Question whether he became a statutory tenant of 23 — Held, after a review of a number of decisions, that tenant did not occupy 23 separately from 21 as a complete home in itself — Hence he did not acquire a statutory tenancy on the termination of his protected tenancy — In view of this decision a plea that suitable alternative accommodation was available to the tenant in 21 did not arise, but the court expressed the opinion that in the circumstances of the case it would not have been reasonable to make an order for possession on this ground if there had been a statutory tenancy — Appeal allowed against county court judge’s decision dismissing landlord’s claim for possession This was an appeal by Amanda Kavanagh, the landlord, from a decision of Judge Paiba at West London County Court refusing her claim to possession of a dwelling-house at 23 Rutland Street, London SW7, occupied by the respondent (defendant in the county court action), George Lyroudias. Robert Reid QC (instructed by Blakeneys) appeared on behalf of the appellant; Nicholas Davidson (instructed by Davenport Lyons & Co) represented the respondent. Giving the judgment of the court, SIR JOHN ARNOLD P said: This is an appeal from the order of His Honour Judge Paiba which he made on February 3 1983 at the West London County Court. The claim which the learned judge had to consider was a claim for possession of the dwelling-house, 23 Rutland Street, London SW7, and the learned judge dismissed the claim. The claim was based on the determination of a contractual tenancy by notice expiring on October 15 1982. It was specifically pleaded that the defendant could not claim the protection of the Rent Acts as he was not in occupation of the property and there was an alternative pleading that reasonable alternative accommodation was available to the defendant. The defendant had been in occupation of 21 Rutland Street, next door to the subject premises, since about 1955, and until 1971 that was the only relevant property which he had. He shared that property for the most part with Mr Coles, his friend, although Mr Coles was from time to time away living in the country. Mr Coles retired from his work in about 1973 and took up full-time residence in no 21. He was at the time sufficiently ill to impose on Mr Lyroudias some responsibility for looking after his friend. Mr Lyroudias was also, as he was getting older, anxious to have a bedroom of his own, which had not been possible in the restricted accommodation which the two men shared at no 21. So it was that when in 1973 the landlord of no 21 offered to Mr Lyroudias the tenancy of no 23, which he also owned, Mr Lyroudias was glad to accept the offer. Accordingly, the tenancy of no 23 was granted by the landlord to Mr Lyroudias. It was that tenancy which was terminated contractually by the notice to quit. The plaintiff is in respect of no 23 the successor in title of the landlord who granted the tenancies and her claim for possession in these proceedings is resisted in reliance on the provisions of the Rent Act 1977. A different successor in title is now the reversionary owner of no 21. The accommodation at nos 21 and 23 Rutland Street is basically identical. Each of them comprises a basement, ground floor and first floor. This accommodation, in no 21, is arranged as a kitchen-dining room in the basement, a living-room on the ground floor and a double bedroom and bathroom on the first floor. At no 23 there is a storeroom with a gas cooker in a working condition in the basement, a study with a telephone extension from no 21 on the ground floor and a bedroom and bathroom on the first floor, the bathroom having no hot-water facility. The two houses are wholly separate. Each has a garden; they are together used as a single garden, the gate of no 23 having been blocked up. The learned judge found that it would not be a difficult matter to replace the gate if it became necessary. During the material period the defendant has been sleeping for the most part in the bedroom in no 23. He has been keeping his clothes for the most part in no 21 but has some clothes in no 23; he has been using the bathroom at no 21 to bath, there being no hot water in no 23. No 21 provides the living-room which is occupied by Mr Lyroudias for normal living purposes and the kitchen-dining room where are prepared and eaten all his meals. He uses the study at no 23 on occasions when he brings home work from his place of business, which is the Greek Embassy. He has never used no 23 for cooking or eating. On one occasion his sister, who was staying for a short while in no 23, baked some cakes there and it appears that on two other occasions she or another member of the defendant’s family stayed at no 23. Those are the salient features of the relevant users of the two houses. The first question which has to be decided is whether the defendant is the statutory tenant of no 23, his contractual tenancy having been effectively terminated as the learned judge held and as is not disputed on this appeal. Whether he is a statutory tenant depends on the provisions of section 2(1)(a) of the Rent Act 1977, which provides that a protected tenant, as was the defendant immediately before the termination of the tenancy, should be the statutory tenant if and so long as he occupies the dwelling-house as his residence. This matter has been considered in earlier authorities. The particular provision now contained in section 2(1)(a) of the Act of 1977 was first enacted in section 3 of the Rent Act 1968. This circumstance is not, however, important in relation to the continuing authority of the earlier cases as, by reason of section 3(2) of the Act of 1968, continued by section 2(3) of the Act of 1977, the same qualifications for entitlement to retain possession have to be fulfilled by the tenant as was the case before the new statutory provision came into effect for the first time in 1968. It is plain from the earlier cases that the right to retain possession is dependent upon the tenant’s establishing that the premises are used by him as a home. Much consideration has been given to the effect upon this requirement of there being more than one home and it has been held that when it is established that the property in question is used as a home the circumstance that the tenant has another home is not necessarily fatal to his claim to retain possession. Such a case was Langford Property Co Ltd v Tureman [1949] 1 KB 29, CA, where a flat in London was held to qualify as a home of which the tenant was entitled to retain possession notwithstanding that he had another home in Buckinghamshire (as to this case see Beck v Scholz89 [1953] 1 QB 570, CA). In Wigley v Leigh [1950] 2 KB 305, CA, and Herbert v Byrne [1964] 1 WLR 519, CA, a dwelling-house was held to be one that was entitled to be retained although not currently used as a home because of an intention so to use it. These cases are in our view distinct in conception from those in which the issue is whether the premises of which it is sought to retain possession are a part of a larger home, that is a home including premises other than those concerned, or are in themselves a complete home. In such cases the test which is to be applied is whether the use of the premises concerned extends to all those activities which are essential to enable them to exhibit the characteristics of a complete home. In Wimbush v Cibulia, Wimbush v Levinski [1949] 2 KB 564, CA, the cases were concerned with premises in which all normal day-time activities were carried on while sleeping took place in adjoining premises. In those cases it was held, on the basis that the two sets of premises were comprised in separate tenancies, that the premises concerned did not constitute by themselves a home of which the tenant was entitled to retain possession. In the present case the learned judge held that there were two separate tenancies of no 21 and no 23 respectively. In Metropolitan Properties Co (FCG) Ltd v Barder [1968] 1 WLR 286, CA, the premises in question were used for sleeping only, while the whole of the day-time activities took place in the adjoining premises. Again the right of retention was rejected. In the present case the learned judge noted the plaintiff’s argument as including the proposition that the tenant had not been occupying no 23 as a residence and said: ‘The expression used is ‘not being used as a home’. The plaintiff’s counsel called it ‘persistent partial user’.’  In the event the learned judge having considered the circumstances of the occupation concluded ‘that the defendant is in occupation of no 23 sufficiently to afford him protection of the Rent Act’. In arriving at this conclusion the learned judge did not, as it seems to us, give any consideration to the question whether no 23 was occupied separately from the adjoining premises as a complete home in itself and in the light of the cases to which we have referred this in our view is the question which he should have asked himself. If he had done so, we find it impossible to avoid the conclusion that in the light of those cases he would have come to the conclusion that no 23 was not a complete home. In our judgment this appeal should be allowed and the right of retention of possession of no 23 denied to the defendant for lack of the character of a statutory tenant. If this be the right view, the question whether suitable alternative accommodation was available for the defendant pursuant to section 98(1)(a) of the Rent Act 1977 does not strictly arise. The matter was considered by the learned judge and he was invited to deal with the matter irrespective of his decision on the point discussed above. It seems to us to be right that we should do so. The alternative accommodation said to be suitable was no 21. The learned judge rejected it as suitable alternative accommodation on the ground that, although 10 years earlier Mr Lyroudias and Mr Coles had been content to occupy no 21 together, the situation had changed and it was perfectly proper for Mr Lyroudias now to wish to live in the larger premises comprehending no 21 and no 23. What has to be considered under section 98 is whether suitable alternative accommodation is available for the tenant. By the provisions of paragraphs 4 and 5 of Part IV of Schedule 15 to the Act the matter which requires to be considered, in relation to whether this condition is fulfilled, is whether the accommodation is reasonably suitable to the needs of the tenant and his family. It cannot, as it seems to us, be doubted that no 21 alone is reasonably suitable to the needs of Mr Lyroudias. The unsuitability found by the learned judge had relevance to the needs of Mr Lyroudias and Mr Coles together. This is valid only, as it seems to us, if Mr Coles can be regarded as being of the family of Mr Lyroudias. We can see no distinction between this question and that concerning the meaning of the word ‘family’ in the different provision of the Rent Act considered in Carega Properties SA v Sharratt which was decided by the House of Lords and is reported in [1979] 1 WLR 928. The House decided that ‘family’ was not a term of art but was used in its ordinary popular meaning and that in that meaning it requires at least a broadly recognisable de facto familial nexus. In the light thrown on the problem by the speeches in that case we find it impossible to say that Mr Coles could properly be regarded as a member of the family of Mr Lyroudias. Accordingly, we would hold that the alternative accommodation at no 21 is relevantly suitable. However, the requirement of section 98 is not concerned only with the suitability of alternative accommodation said to be available; there is also the requirement that before making an order the court must consider it reasonble to do so where the order is one for possession of a dwelling-house subject to a statutory tenancy. If it were right to regard no 23 as being subject to a statutory tenancy, we would agree with the learned judge that it would not be reasonable to make an order for possession. It would be in relation to this matter that we should think it necessary to give consideration to the position of Mr Lyroudias and Mr Coles together and it would in our view be unreasonable to place Mr Lyroudias in the position of having either to occupy cramped accommodation with Mr Coles or in effect to eject his old sick friend. But, as it is, we allow the appeal. The appeal was allowed with costs. Leave to appeal was given.