Mistry v Isidore

Rent Act 1977 — Case 11 in Schedule 15 — Landlord’s claim for possession — Notice given in accordance with Case 11 that possession might be recovered — Issue as to whether landlord had at any time before the letting occupied the dwelling-house as his residence — Distinction between residence requirement of Case 11 and occupation as a residence for the purpose of section 2(1)(a) — Contrast between Hampstead Way Investments Ltd v Lewis-Weare and Naish v Curzon — Residence ‘as a home’ and ‘residence’ simpliciter — Landlord’s claim upheld The dispute concerned the landlord’s claim to recover possession of a flat which had been let on a regulated tenancy — The tenancy had been determined by a notice to quit on the expiry of which it had become a statutory tenancy — The tenancy agreement had contained a notification, in accordance with Case 11, that possession might be recovered under the Case — In proceedings for possession the county court judge gave judgment in favour of the landlord — The judge was satisfied both that the flat was occupied by the98 landlord as his residence before the letting and that the landlord required it for his own use as a residence — There was no appeal from the judge’s finding in favour of the landlord on the second point, but issue was joined on the finding that the flat had been occupied by the landlord as his residence before the letting The question was whether the evidence showed sufficient use of the flat by the landlord to qualify as residence within the meaning of Case 11 — The flat was on the first floor of a four-floor building — The ground floor comprised a shop from which the landlord and his brother carried on a business of newsagents and confectioners — The first-floor flat had been occupied by a tenant until he left in February 1987 — The landlord, who had been staying with his brother at the latter’s home in Middlesex, then began to use the flat during the week to facilitate his participation in the running of the shop — His practice was to sleep in the flat five or six nights each week, spending the other night or nights at his brother’s home, where most of his belongings were located — The landlord kept at the flat such clothes as he needed for work and such things as he required for daily living — There were no facilities for washing or cooking at the flat — The landlord went to a cousin’s house on most mornings with clothes for cleaning there — He remained at the flat on this basis for some eight to nine weeks until May 1987 — He then left in view of his approaching marriage and let the flat to the present appellant — On these facts the judge below held that the landlord had occupied the flat as his residence within the meaning of Case 11 On appeal it was submitted on behalf of the appellant tenant that the same construction should be placed on occupation as a residence for the purpose of Case 11 as the House of Lords, in Hampstead Way Investments Ltd v Lewis-Weare, had put on occupation as a residence for the purpose of section 2(1)(a) of the 1977 Act — This submission meant that the occupation for the purpose of Case 11 would have to be ‘as a home’, as explained by Lord Brandon in his speech in the Hampstead Way case — The judge in the present case had rejected this submission — He pointed out that Case 11 refers to a landlord’s occupation, section 2(1)(a) to a tenant’s, and that the Court of Appeal in Naish v Curzon had held that there was nothing in Case 11 which imported permanent residence as a ‘home’ or ruled out temporary or intermittent occupation — It was argued by the appellant that the judge was wrong in taking this view and that, in the light of Lord Brandon’s speech in the Hampstead Way case, the true test for both Case 11 and section 2(1)(a) was occupation of the dwelling-house as a home The Court of Appeal, however, agreed with the judge — The appellant’s submission was inconsistent both with the pattern of the 1977 Act and the decision of the Court of Appeal in Naish v Curzon — When the legislature intended the line of authority relevant to the construction of section 3(2) of the Rent Act 1968 to apply to specific provisions of the 1977 Act, it said so expressly, as in Schedule 2, para 5 — There, for the purposes of section 12, the provisions of section 3(2) of the 1968 Act were attracted by virtue of section 2(3) of the 1977 Act — No such reference to section 3(2) of the 1968 Act was made either in section 98(2) of the 1977 Act or in Case 11 itself — The judge in the present case had correctly applied the law and had reached a conclusion on the facts which he was entitled to reach — The case was perhaps somewhat near the borderline, but it was essentially a ‘jury’ question as to whether the occupation in dispute was occupation as a residence; it was one of fact and degree — Appeal dismissed The following cases are referred to in this report. Davies v Peterson [1989] 1 EGLR 121; [1989] 6 EG 130, CA Hampstead Way Investments Ltd v Lewis-Weare [1985] 1 WLR 164; [1985] 1 All ER 564; [1985] 1 EGLR 120; (1985) 274 EG 281, HL Kavanagh v Lyroudias [1985] 1 All ER 560; [1984] EGD 276; (1984) 269 EG 629, [1984] 1 EGLR 88, CA Naish v Curzon [1985] 1 EGLR 117; (1985) 273 EG 1221; 17 HLR 220, CA This was an appeal by the tenant, Augustus Isidore, against the decision of Judge Medawar QC, at Wandsworth County Court, whereby the judge made an order for possession in favour of the landlord, Mukesh Mistry, the respondent to this appeal, in respect of the first-floor flat at 188A Lavender Hill, London SW17. Stuart Cakebread (instructed by Lawrence & Co) appeared on behalf of the appellant; Simon Williams (instructed by H C L Hanne & Co) represented the respondent. Giving judgment, SLADE LJ said: Mr Augustus Isidore, the defendant in an action, appeals to this court from an order made by His Honour Judge Medawar QC in the Wandsworth County Court on June 13 1989, by which the judge made an order for possession in favour of the plaintiff, Mr Mukesh Mistry, in respect of the first-floor flat at 188 Lavender Hill, London SW11. I can take the basic facts largely from the judge’s judgment. The plaintiff and his brother, Mr Naresh Mistry, are the assignees of a lease of the building in which the flat is situated. This building has four floors. The ground floor comprises a shop from which the plaintiff and his brother run their business as newsagents and confectioners, and where they also take in clothes for dry cleaning. The three upstairs floors are flats, together known as 188A Lavender Hill. By a tenancy agreement of May 25 1987 the first-floor flat (which I shall henceforth call ‘the flat’) was let by the plaintiff to the defendant for three months from May 25 1987. The agreement described the flat as partly furnished and consisting of two rooms, kitchen, shower unit and shared use of toilet (that is to say, shared with the shop). Clause 5(8) of this agreement provided as follows: The Landlord hereby notifies the Tenant under the Rent Act 1977 that the Landlord is the owner/occupier of the property within the meaning of Case 11 of Part II of Schedule 15 of that Act and that possession of the property may be recovered by the Landlord under the said Case 11 and by virtue of Section 98(2) of the Rent Act 1977 as amended by the Housing Act 1980. After the expiration of the three-month period provided for by the tenancy agreement the defendant continued to occupy the flat. It is common ground, however, that any continuing contractual tenancy was determined by a notice to quit served by the plaintiff on the defendant which expired on December 31 1988, and that thereafter a statutory tenancy subsisted. In February 1989 the plaintiff issued proceedings seeking an order for recovery of possession of the flat under Case 11. The defendant in due course filed a defence and counterclaim. By his counterclaim he claimed damages for failure on the part of the landlord to keep the flat in repair. The judge at the trial awarded him £250 damages under that claim and there is no cross-appeal in that regard. In the court below it was common ground that the plaintiff would be entitled to recover possession if and so far as Case 11, set out in Schedule 15 to the Rent Act 1977 (as amended), read together with section 98(2) of that Act, applied. Section 98(2) provides: If, apart from subsection (1) above, the landlord would be entitled to recover possession of a dwelling-house which is for the time being let on or subject to a regulated tenancy, the court shall make an order for possession if the circumstances of the case are as specified in any of the Cases in Part II of Schedule 15. The plaintiff in the present case, as I have indicated, relies on Case 11. If a landlord is successfully to rely on Case 11, he has to satisfy a number of conditions specified in the Case. Only two of these conditions require present mention. First, Case 11 begins with the words: Where a person who let the dwelling-house on a regulated tenancy had, at any time before the letting, occupied it as his residence (in this Case referred to as ‘the owner-occupier’) . . . It is common ground that the letting of the flat to the defendant was on a regulated tenancy. However, in order to qualify for the benefit of the Case the plaintiff had to satisfy the judge that ‘at any time before the letting’ he had occupied the flat ‘as his residence’. Second, the landlord relying on Case 11, has to satisfy the court that one or other of the conditions set out in subparas (a) and (c) to (f) in para 2 of Part V of Schedule 15 is satisfied. In the present case the plaintiff relied on the condition set out in subpara (a), which reads: 99 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. None of the other conditions of Case 11 being in issue, the judge rightly identified the two questions calling for his consideration as being: 1      Is the court satisfied that the flat was occupied by the plaintiff as his residence at any time before the letting?         and if so, 2      Is the court satisfied that the plaintiff requires the flat for his own use and has a genuine present intention so to occupy it within a reasonable time? As to the second question, the defendant’s counsel at the trial submitted that the plaintiff’s plans for the future, as stated, were at best incomplete and at worst a sham. However, the judge, having summarised the relevant evidence in this context and made his findings, said that he was quite satisfied that the flat was required by the plaintiff as a residence for himself and that he had a genuine present intention so to occupy it within a reasonable time. There is no appeal from that finding. We are therefore concerned only with the first question falling for the judge’s consideration and decided by him in favour of the plaintiff. On this appeal, as in the court below, much reliance has been placed by counsel for the defendant on the decision of the House of Lords in Hampstead Way Investments Ltd v Lewis-Weare, reported in [1985] 1 WLR 164.*  I can take the facts of that case from the headnote: In 1970 the statutory tenant of a flat married, and his wife and stepchildren came to live with him there. In 1978 they purchased and moved into a house nearby. The tenant, however, retained one room in the flat for the sole purpose of sleeping there five times a week on his return from work at a night-club in the early hours of the morning, so as not to disturb his family. He paid the rent and all the outgoings apart from the gas bill which was paid by his adult step-son who occupied the remainder of the flat. The tenant kept his clothes in his room and had his mail addressed to the flat but never had any meals there. The landlord claimed possession of the flat on the ground that the tenant no longer occupied the flat as his residence within the meaning of section 2(1)(a) of the Rent Act 1977. In the county court, the judge dismissed the application but the Court of Appeal allowed the landlord’s appeal, and made an order for possession. The tenant and stepson then appealed. *Editor’s note: Reported also at [1985] 1 EGLR 120. Section 2(1)(a) of the 1977 Act, on which the appellants were there relying, reads as follows: 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; . . . Case 11, therefore, does at first sight have some echoes of the wording of section 2(1)(a). Significantly, however, for present purposes, section 2(1) is followed by section 2(3), which, so far as material, reads: 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). As was pointed out in the Hampstead Way case by Lord Brandon of Oakbrook, with whose speech all their lordships concurred, the statutory direction to construe the phrase ‘if and so long as he occupies the dwelling-house as his residence’ appearing in section 2(1)(a) of the 1977 Act, in accordance with section 3(2) of the Rent Act 1968, meant that a tenant could qualify for protection only by virtue of section 2(1)(a) if and so long as he continued to occupy the dwelling-house in question as his home. Lord Brandon put the matter thus at p 169: 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. As to the qualifications which have to be fulfilled in order to create a situation in which a person is occupying a dwelling-house as his home, Lord Brandon (at p 169) stated the following three propositions (I omit his references to the authorities): (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: . . . (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 . . . (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 . . . Lord Brandon stated his conclusion on the facts of the case before him as follows (at pp 171-172): 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 step-son, 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. In the court below, as in this court, counsel for the defendant placed strong reliance on the Hampstead Way decision, submitting that the same construction should be applied to the words ‘where a person had at any time before the letting occupied it as his residence’ in Case 11 as was applied by the House of Lords to the construction of the words ‘if and so long as he occupies the dwelling-house as his residence’ in section 2(1)(a). The relevance of this submission, if correct, would be that for Case 11 purposes, as for section 2(1)(a) purposes, the occupation of the dwelling-house would have to be as a home. The learned judge dealt with this legal submission as follows (at pp 2-3 of his judgment): This may be a doubtful analogy. Section 2 refers to a tenant. Case 11 to a landlord. Section 2 refers to a continuous occupation. Case 11 does not. Moreover the Court of Appeal in Naish v Curzon, 1984 The Times December 21* held that as regards Case 11 whether a house was occupied as a residence by an owner was a question of fact, and it was sufficient if the occupation was temporary or intermittent. Nevertheless the speech of Lord Brandon of Oakbrook with which the other Law Lords agreed in the Hampstead Way Ltd case does offer some guidance as to the correct approach. In considering section 2(1)(a), at p 169F, Lord Brandon sets out certain criteria: some of which would also be relevant to an owner/occupier: the first of these is that a person may have two dwelling-houses each of which he occupies as a house (the second has no application to this situation); the third of these is that where a person owns one dwelling-house which he occupies as his home for most of the time and is at the same time the tenant — here must be substituted owner — 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. 100 Beyond this, reference to other cases is of limited assistance particularly where no real parallel exists between the facts of those cases and of the case under consideration as Lord Brandon says later in his speech, 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 however superficially similar these may appear to be. *Editor’s note: Reported at [1985] 1 EGLR 117. As to the facts relating to this issue, the judge then made the following findings and expressed the following conclusion (at pp 3-4). The question for me then is one of fact and degree and I have to ask myself whether on the evidence I have heard the use of the flat made by the plaintiff was sufficient to amount to occupation of it as his residence between February and May 1987 as he has said. He had no other home. Prior to February 1987 he had been staying with his brother at his home in Middlesex. Until February 1987 the flat had been occupied by Mr Edwards who then left owing two weeks rent. After that and in order to facilitate his participation in the running of their shop business on the ground floor, the plaintiff as I find came to live in the flat during the week. I prefer his evidence to that of the defendant’s brother Reginald Isidore who then occupied the third floor flat at 188A Lavender Hill whose knowledge was vague and in my view unreliable and accept that the plaintiff slept in the flat five/six nights each week (spending the other night or nights at his brothers where most of his things were) and that he had with him at the flat such clothes as he needed for work and all the things he needed for day to day living. The condition of the flat was poor. There were no facilities for washing and he did this at his cousin B M Mistry’s business premises in Tooting, to which he went on most mornings with clothes for dry cleaning there. There were no facilities for cooking. The plaintiff remained at the flat for some eight to nine weeks until about mid-May 1987. By then his marriage had been arranged and the flat was not suitable to live in with his wife. The flat was then let to the defendant as I have said. I have no doubt that the flat was occupied by the plaintiff as his residence before that letting within the meaning of Case 11. Mr Cakebread’s principal submission on this appeal on behalf of the defendant has been that the judge, in dealing with this issue, applied the wrong test. The wording of Case 11, in so far as it relates to occupation as a residence, it is said, is virtually identical to that of section 2(1)(a). Thus, it is argued, the test to be applied in determining whether a landlord has been resident for Case 11 purposes should be the same as that applicable in determining whether a tenant is resident so as to satisfy the requirements of section 2(1)(a); that is to say, in view of the Hampstead Way decision, whether he has been occupying the dwelling-house as his home. This being the correct test in Mr Cakebread’s submission, it was not open to the judge as a matter of law to hold that the plaintiff had occupied the flat as his residence during the period February-May 1987, because it was not open to him to hold that the plaintiff during this period had occupied it as his home. A person can be properly said to occupy premises as his home, it was argued, only if he performs the usual functions of living in those premises, such as washing, cooking and eating. The judge was bound to look at the quality of the plaintiff’s occupation to see whether he occupied the flat as his home. On such examination, it transpires that the plaintiff used it for no more than the limited purpose of sleeping. On an application of the correct test, that, it was submitted, was not enough. We have had the benefit of admirable argument from counsel on both sides, but Mr Cakebread’s cogent submissions on this point have not persuaded me that the judge applied the wrong test. As the judge himself said, section 2 refers to a tenant, while Case 11 refers to a landlord. More important still, section 2 refers to a continuous occupation, while Case 11 does not; it merely refers to occupation ‘at any time’. Mr Cakebread’s submissions are, in my judgment, inconsistent both with the pattern of the 1977 Act and with the decision of this court in Naish v Curzon, now reported in (1984) 273 EG 1221 (it appears that the learned judge did not have the full report before him). As to the pattern of the Act, Mr Williams, on behalf of the plaintiff, drew our attention to section 12 of the 1977 Act, which removes from the protection of the Act certain tenancies where there is a resident landlord. Section 12(4) provides that Schedule 2 to the Act shall have effect for the purpose of supplementing the section. Para 5 of Schedule 2 provides: For the purposes of section 12, a person shall be treated as occupying a dwelling-house as his residence if, so far as the nature of the case allows, he fulfils the same conditions as, by virtue of section 2(3) of this Act, are required to be fulfilled by a statutory tenant of a dwelling-house. Authority apart, the plain inference seems to me to be that where the legislature intended the line of authority relevant to the construction of section 3(2) of the 1968 Act to be applicable to specific provisions of the 1977 Act, it expressly said so. Significantly, no reference whatever to section 3(2) of the 1968 Act was made either in section 98(2) of the 1977 Act or in Case 11 itself. Naish v Curzon, unlike Hampstead Way, was a case in which the plaintiff was seeking possession of the premises from a tenant in reliance on Case 11. In that case, as in this, the tenant sought to argue that on the facts it was not permissible for the judge to conclude that the quality of the occupation was such as to entitle him to say that it was residence ‘as a home’. Counsel for the landlord, however, submitted that Case 11 was referring not to residence ‘as a home’ but simply to residence. Oliver LJ (with whom Purchas LJ, the only other member of the court, agreed) summarised the argument of the plaintiff’s counsel as follows (at p 1226): Nothing there imports, says Mr Hall, the necessity for any degree of permanence or residence ‘as a home’ and, as a second string to the argument, he points to the 1968 Act (to which I have referred) where one finds, in connection with section 3 of that Act (now section 2 of the 1977 Act) there was specific legislative provision bringing in the construction of the words ‘he occupies the dwelling-house his residence’, the connotation which has been accorded to these words by the cases. That is brought in specifically in relation to occupation by the tenant — under section 2 of the present Act, section 3 of the 1968 Act as it then was. Mr Hall suggests there is nothing in the provisions of section 98 and the Schedule to which we were referred which would import any similar necessity in the case of a landlord. Indeed, the whole purpose of this provision was to enable persons who had premises which might otherwise be let to put them on the market for letting in the safe knowledge that they would be able to recover them if they wanted them for their own occupation. It is nihil ad rem that the occupation for which they wanted them might only be a temporary or intermittent occupation. He also submits that it is essentially (and this is I think borne out by the cases) a jury question whether the occupation required is occupation ‘as a residence’ and he submits (and again I think this is right) it all depends upon the circumstances of the case and the ‘colour’ of the occupation, which necessarily varies according to the property and the use of that property which is available for the particular landlord in the particular circumstances. As he puts it, the burden, as it were, becomes smaller in inverse ratio to the distance separating the properties. Oliver LJ accepted these arguments, saying: These are no doubt sound arguments. There is no authority which binds this court one way or another, but to my mind I think it is tolerably clear that the purpose of this legislation was indeed to permit letting to take place without conferring security of tenure in circumstances such as these. It seems to me that there is nothing in the Schedule which imposes any sort of requirement of permanence or lack of intermittency in the residence which is required by the landlord. The question is whether such residence was intended by this landlord, which is of course a question of fact and upon which the learned judge was entitled to form his own conclusion — as he did, accepting the respondent’s evidence in toto. For my part, it seems to me quite clear that the learned judge was entitled to take the view which he did. In my judgment, he was right in the conclusion at which he arrived on the evidence before him. I think the evidence was sufficient to establish the necessary requirement of residence for the landlord, albeit it was no doubt residence which was intermittent, or at times when the landlord was able to take advantage of it by reason of his presence here. Nevertheless, in my judgment, it was ‘residence’ within the terms of the Schedule, and for these reasons, therefore, I would dismiss the appeal. In the light of the decision of this court in Naish v Curzon and of the pattern of the 1977 Act to which I have referred, I do not think that the judge can be said to have misdirected himself in any way in the present case in declining to apply precisely the same test to the construction of Case 11 as would be applied in a section 2(1)(a) situation. In the passage from his speech in the Hampstead Way case, which I have already quoted, Lord Brandon, referring to the cases dealing with the protection of a protected tenant of a dwelling-house, indicated that he could see no difference of meaning between the occupation of a dwelling-house by a person as his residence and the occupation of a dwelling-house by a person as his home. However, this was said in the very different context of a continuing occupation by a tenant. As Naish v Curzon shows, very different considerations apply where the question at issue is whether a landlord has at any time occupied premises as his residence within the meaning of Case 11. Temporary, or intermittent, residence, which may suffice for the purpose of Case 11, by no means necessarily involves occupation as a home. The passage in Oliver LJ’s judgment in Naish v Curzon in which he said that there was nothing in the Schedule which imposes any sort of requirement of permanency, or lack of intermittency, which is101 required by the landlord was recently cited with approval by Russell LJ in Davies v Peterson [1989] 1 EGLR 121. Mr Cakebread accepted that his primary submission on this appeal is not supported by any authority, and I for my part would reject it. In the alternative he submitted that, even accepting that occupation as a home is not an essential feature for Case 11 purposes, the learned judge’s finding that the plaintiff had occupied the flat as his residence within the meaning of Case 11 was against the weight of the evidence, having regard to his findings that: (1)   the plaintiff only slept in the premises five or six nights a week, spending the other night at his brother’s home where most of his things were; (2)   he had with him only such clothes as he needed for day-to-day living; (3)   there were no facilities in the flat for washing (which he did at his cousin’s premises); (4)   there were no facilities for cooking at the flat. The learned judge was, I think, entitled, and indeed bound, to consider this issue of residence, both without the constraint of the decisions relating to section 3(2) of the 1968 Act and (in view of Naish v Curzon) without the need to satisfy himself that the quality of the residence had been either permanent or non-intermittent. This was perhaps a case which, on its facts, was somewhat near the borderline. If he had decided as a matter of fact that over the relevant period the plaintiff had not occupied the flat as his residence, it may be that this court could not have interfered with his decision. Nevertheless, as Oliver LJ said in Naish v Curzon, it is essentially a jury question whether the occupation required is occupation as a residence, and it all depends on the circumstances of the case and the colour of the occupation. As the learned judge himself rightly said, the question of residence was one of fact and degree. Having heard and seen all the witnesses, he concluded without doubt that as a matter of fact the flat was, during the period in question, occupied by the plaintiff as his residence. In my judgment, in reaching this conclusion he did not misdirect himself in law and it was a conclusion of fact which he was entitled to reach. In so concluding, I think it is particularly significant that, as the judge found, during the relevant period the plaintiff had no other home. True it is that he still had the use of a bedroom at his brother’s home at weekends and left most of his things there. But the evidence makes it fairly plain that neither he nor his brother regarded him as continuing to have his home with his brother after February 1987. In my judgment, it will be more readily open to the court to hold that a person has occupied premises as his residence if at the relevant time he has had no home elsewhere. This feature itself renders the present case distinguishable on its facts from the Hampstead Way case and from the decision of this court in Kavanagh v Lyroudias [1985] 1 All ER 560 (another decision relating to section 2(1)(a) of the 1977 Act, which was closely analysed by Lord Brandon in the former case). It may further be observed that in the present case, unlike the Hampstead Way case, the plaintiff, during the relevant period, enjoyed, so far as the evidence shows, the sole occupation of the relevant premises. For the reasons stated, I do not think that the learned judge misdirected himself as to the law in any way or that there are sufficient grounds for us to interfere with his decision on the facts. I would accordingly dismiss this appeal. GLIDEWELL LJ agreed and did not add anything. The appeal was dismissed with costs, such order as to costs not to be enforced without leave; defendant’s liability determined as nil; application for costs against Legal Aid Fund adjourned for 10 weeks to give Legal Aid Fund an opportunity to resist such order; legal aid taxation of defendant’s costs.