Naish v Curzon and another

Rent Act 1977, Case 11 in Schedule 15 — Dwelling-house let by owner-occupier and required by him as a residence — Meaning of ‘residence’ for the purpose of para (a) of Part V of Schedule 15 — Appeal by tenant from county court judge’s decision granting owner possession — Owner, plaintiff in county court and respondent to this appeal, was a person who lived in the main in Johannesburg, South Africa — He purchased the dwelling-house in 1971, lived there from time to time until in 1980 he let the dwelling-house to the appellant — Since 1980 the respondent had come to England on business and for family holidays on a number of occasions, spending a total of about seven weeks here between July 1980 and May 1984 — He would have spent more time in this country if the house had been available to him — Appellant tenant contended that the requirement ‘as a residence’ in Case 11 meant something more than the respondent’s need for a place to stay during occasional short visits — It was admitted that there was no binding authority on this precise question — Cases cited were Kennealy v Dunne, Tilling v Whiteman and the ‘two-home’ cases concerning statutory tenants, such as Langford Property Co Ltd v Tureman, Beck v Scholz and the more recent case of Regalian Securities Ltd v Scheuer — Held, upholding decision of county court judge, that there was nothing in Case 11 which imported a requirement for permanent residence as a ‘home’ or ruled out temporary or intermittent occupation — The question was whether the dwelling was required by the owner as a residence even if only at times when he was able to take advantage of it by reason of his presence in England — Appeal dismissed This was an appeal by the tenant of a dwelling-house at 11 Downs Valley Road, Woodingdean, Sussex, from a decision of Judge MacManus QC at Brighton County Court granting an order for possession to the plaintiff, R L Naish, a chartered surveyor and the owner of the property. There had been two defendants in the county court proceedings, the first defendant, Mr Curzon, being the tenant and the second being his licensee, who was not a party to the appeal. David J Lamming (instructed by Donne, Mileham & Haddock, of Brighton) appeared on behalf of the appellant; N Hall (instructed by Tisdall, Nelson, Nari & Co, of Hove) represented the respondent. Giving judgment, OLIVER LJ said: This is an appeal from a decision of His Honour Judge MacManus in the Brighton County Court on May 22 1984 in an action by the plaintiff, the respondent to the present appeal, for possession of a dwelling-house, 11 Downs Valley Road, Woodingdean, which had been let, in circumstances to which I shall refer in a moment, to the first defendant, the present appellant — the second defendant occupying the premises, as I understand it, with the first defendant as his licensee. The appeal has been conducted on behalf of the first defendant. The facts fall within a fairly small compass. The plaintiff is a gentleman who lives, in the main, in Johannesburg, South Africa. He purchased the property in 1971 and, it is conceded, lived there from time to time down to a date in 1980 when the house was let to the appellant. The quality of the residence which the plaintiff maintained prior to the letting to the first defendant is not entirely clear; whether it was intermittent; whether it was of a more permanent variety has not appeared in evidence, and one of the reasons why it has not appeared is I think the way in which the case developed. I can take the relevant facts in relation to the first tenancy from the particulars of claim. The defendant had been in occupation of the premises until the year 1981, when the plaintiff sought possession, and the matter came before the county court — and indeed before His Honour Judge MacManus — and on that occasion the matter seems to have proceeded so far but no further, and a compromise was arrived at. The terms of that compromise were embodied in a consent order, which starts from the hypothesis that the premises, prior to the letting to the defendant, had been in the occupation of the plaintiff as his residence. I will read the terms so far as they are material to these proceedings. Under the terms of the consent order it was declared: 1. The tenancy of 11 Downs Valley Road, Woodingdean, Brighton, commencing on July 21 1980 and expiring on October 6 1980 was a tenancy within the provisions of section 9 of the Rent Act 1977 and that that tenancy has expired I should perhaps explain that it seems, from the evidence which the plaintiff gave in this case, that his intention at that time, when he let the premises to the first defendant, was merely to effect a holiday letting. The consent order then goes on: The plaintiff hereby grants to the first defendant a weekly tenancy of the above premises at a weekly rental of £50 exclusive of general and water rates, which tenancy is granted by the plaintiff as owner-occupier and notice in writing of the possibility that possession might be recovered under Case 11 of Schedule 15, Part II of the Rent Act 1977 was given prior to the grant thereof. I do not think I need read any more of that consent order. It would be convenient at this stage to consider the statutory provisions which are there referred to. They arise initially from section 98 of the Rent Act 1977, and I think it is advisable to draw a contrast and to read both subsections of that section. Subsection (1) deals with a case where a court is not entitled to make a possession order, except in certain circumstances, and it provides: Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act. Part I of Schedule 15 contains, among other things, Case 9, which is in these terms: Where the dwelling-house is reasonably required by the landlord for occupation as a residence for — (a) himself, or (b) any son or daughter of his over 18 years of age, or (c) his father or mother . . . . and I need not read the rest of that. The important words are ‘reasonably required’. I go on to subsection (2) of section 98: 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. *Editor’s note: Judge’s emphasis. So here is a mandatory provision, if the case falls within the Cases of Part II of Schedule 15. Turning now to Part II of Schedule 15, the relevant provision for present purposes is in Case II, which (as amended by section 66 of the Housing Act 1980) is in these terms: Where a 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 — (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, . . . and I pause to remark that the relevant date is the granting of the tenancy, and one sees from the consent order that that was done here . . . and (b) the dwelling-house has not, since various dates been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied . . . which does not apply in the present case, so we need not concern ourselves with it . . . and (c) the court is of the opinion that of the conditions set out in Part V of this Schedule one of those in paragraphs (a) and (c) to (f) is satisfied. Part V was in fact a new part inserted by section 66 of the Housing Act 1980, and the conditions (which are contained in Schedule 7 to that Act) are, for relevant purposes, in these terms: The conditions referred to in paragraph (c) in each of Cases 11 and 12 and in paragraph (e) (ii) of Case 20 are that — (a) 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. . . 118 Those are the provisions under which the relevant tenancy to the appellant in this case was granted, and, of course, the effect of that is this, that if the plaintiff brought himself within the requisite conditions which are specified in that part of the Schedule, the learned judge had no option but to make the order for possession, because it is provided that the court shall make an order. The plaintiff’s case, as specified in his particulars of claim, was that he had given the requisite notice and in para 4 it was said: The plaintiff requires the said premises for his own occupation and that of his wife who resided with him when he last occupied the dwelling-house as a residence. The issue of the present appeal, and the issue before the learned judge is simply and solely this: whether in fact the dwelling-house is required by the plaintiff as his residence. The evidence before the learned judge I will refer to, and I also refer to his notes of the evidence. The plaintiff explained how he let the premises and how he hoped to reoccupy the premises in 1981. He came to England three times from October 1981 to June 1982 — first on business and then, on the later occasion, with his family on holiday, and they had to live in hotels. He said he was a chartered surveyor and that he came to the United Kingdom frequently. Most of his work was in London, but some of it was in Birmingham. He then said ‘I come once or twice a year — 2 weeks or 6 weeks’. He then told the learned judge about his family; he has two children aged 10 and 13 in South Africa, and he said: ‘I like to bring my family with me — now faced with very considerable expense — I have spent £700 in London over past 3 weeks for accommodation’. He added: ‘My family and I and my parents all born British’. At this stage I should mention that the tenancy of the house is a furnished one, and he deposed to the fact that he had a good deal of property in the house of a personal nature, such as an ottoman chest, radios, electric blankets, and utilities. He said that he last came over in June 1982, when he issued the summons. He did not come over in 1983, because, he said, there was insufficient business, and that was unusual. He added: ‘I think I would have come without doubt if house available to me’. He said that in December 1981 he brought his family with him, purely for a holiday. He spent three days in London, and spent Christmas with his parents, but he would have spent Christmas with his parents anyway, even if he had possession of the house. Then in June 1982 he was over here on holiday with his family, and he told the learned judge that it was not his intention (as had apparently been put to him) to sell the property or offer it for sale. It appeared that from July 1980 to the present time — nearly four years — he had spent about seven weeks in this country. In his judgment, the learned judge said this: The plaintiff lives and spends the greater part of his life working in South Africa. From time to time he comes to this country to work and for family holidays. Between July 1980 and May 1984 he has spent approximately seven weeks here. I accept what he says that he would have spent more time in this country if the property had been available to him. The plaintiff is a patently honest man and I accept his evidence without reservation. Then the learned judge postulates the question whether the premises are required by the plaintiff within the meaning of the Act as a residence, and he gave a positive answer to that. He said: The defendant says that the plaintiff’s requirement of this property is not for the purpose of ‘residence’ because of the shortness of the plaintiff’s visits to this country. A person can have more than one residence. The plaintiff and his family are British citizens with their roots in this country. Despite the shortness of his visits, I am satisfied that he requires these premises as a residence. Accordingly he made the order against which the present appeal is lodged. Mr Lamming, who appears for the appellant on this appeal, urges really one ground of appeal; that the word ‘residence’ where used in the Schedule imports something much more permanent or less discontinuous than the sort of residence which the respondent demonstrated he had or would have had over the past four years or so and which, by inference, it was his immediate intention to require. He accordingly urges us to say that the learned judge was not entitled to come to the conclusion that the plaintiff, the respondent on the present appeal, did indeed require the house as his residence. No doubt he required it, but he did not require it as a residence. What he required it for was occasional holiday visits. Mr Lamming based his contention on two grounds: first of all he points to the purpose of the legislation. He accepts — and indeed both parties accept — that there is no authority binding on this court on this particular question. Indeed, this particular part of the legislation has not received a great deal of attention from the courts. There are only two cases which dwell on the subject at all. The first is the case of Kennealy v Dunne [1977] QB 837. Mr Lamming relies particularly on a passage from the judgment of Stephenson LJ at p 849, where he says: There is force in Mr Hillier’s submission that the purpose of Case 10 is that a landlord who is living in his own house should be free to take up a post in another part of the country or abroad and let his home to a tenant, secure in the knowledge that when the job is finished and he wants to return home he can, on giving the proper notice, come back and resume life in his own home, without being confronted with all the difficulties which a landlord who seeks possession under Case 8 has to overcome. If that is the purpose of Case 10, it explains the apparently deliberate omission of the qualifying adverb ‘reasonably’. The reference there to the two Cases 8 and 10 is a reference, of course, to the earlier legislation — this being a case in 1977 before the 1977 Act came into force, but the provisions were clearly the same. Mr Lamming suggests that this demonstrates that the Act is not to extend to a case where a person, having only occasional occupation of the premises, lets them but with a desire at some future date to resume such occasional occupation. We have also been referred to the case of Tilling v Whiteman [1980] AC 1, again an authority not directly in point. But Mr Lamming refers us particularly to p 18, to the speech of Lord Wilberforce, where his lordship says: First, the purpose of this piece of legislation, added to the bulky corpus of rent legislation in 1965, was to induce occupiers of dwelling-houses, who for some temporary reason desired, or had, to reside elsewhere for a time, to make their premises available for letting to others, on the basis that on their return they would be able, without dispute, to regain possession. (In cases within Case 10 an order for possession is mandatory.) The emphasis is upon occupation: the person concerned must have occupied the dwelling-house as his residence, and must require it as his residence, or that of a member of his family who resided with him when he last resided there. As compared with this emphasis on occupation and residence, ownership plays a subsidiary part. It enters into the matter only because of the inherent fact that the dwelling-house is let, and letting is effected by a landlord. But Case 10, and the policy behind it, is not, if I may personalise, interested in the landlord: he is not, as such, the key figure: that is the ‘owner-occupier’. This consideration, to my mind, provides justification for avoiding a strict interpretation of the words ‘let it on a regulated tenancy’ — the words which mainly, if not wholly, support the argument that one of two or more joint owners cannot satisfy the Case unless they both also require to reside in the house. That indicates that the nature of the matter with which the case was concerned was not the matter in issue in the present case, but the question of whether one or two joint tenants could qualify as an owner requiring the premises as his residence, when the residence prior to the letting had been by both joint tenants. Lord Salmon in the same case, at p 22 of the report of his speech, says: . . . if the construction of Case 10 is to be affected by the policy which caused its introduction, that policy, in my view, strongly supports the construction of Case 10 which I favour. At the time when the Act of 1968 was passed, there existed and had for many years existed, a serious shortage of residential accommodation. There were many cases of persons in occupation of homes which they owned jointly who, for one reason or another, had to leave them temporarily, sometimes for considerable periods; they would have liked to let them during their absence, but refrained from doing so for fear of losing them forever to their tenants. Accordingly, many homes remained unoccupied, which would otherwise have been let to persons urgently in need of them. Case 10 was in my view designed to safeguard persons who occupied their homes against the danger of losing them should they let them during their absence; and accordingly enabled more living accommodation to become available to the public than would otherwise have been the case. The references there again to Case 10 are references to the Third Schedule to the Rent Act 1968, which is in similar terms to the legislation with which we are concerned here. Those passages culled as they are from two cases which really have nothing to do with the present one in dispute — because Kennealy v Dunne was concerned with a quite different question, namely whether the test of a requirement was objective or subjective — Mr Lamming suggests bear upon the quality of the residence which is required to satisfy the Act. His second point is that there are certain authorities which relate to the retention of possession, or occupation, by statutory tenants which, he suggests, do not in fact bear upon the present question but which, in so far as they do bear upon it, indicate that the sort of residence which one has to have in mind is residence as a home. 119 Those cases do — and this, of course, is against Mr Lamming’s contention — show that it is not necessarily fatal to the retention of a statutory tenancy that residence should be exclusively in the subject premises. The Act protects what has been described as a ‘two-home man’ in certain circumstances. But Mr Lamming submits that that is not relevant in the instant case; but he says it is relevant as showing what is required is residence or occupation as a home. The cases arise under the earlier part of the Rent Act 1977 in these terms: Section 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; and then, if one goes to subsection (3) one finds this: In subsection (1)(a) above and in Part I of Schedule 1, 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). Perhaps for the sake of completeness I ought to look at that section — section 3 — which again includes these words ‘. . . shall, if and so long as he occupies the dwelling-house as his residence. . .’. Then in subsection (2) it is provided: In paragraph (a) of subsection (1) above and in Schedule 1 to this Act, 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. That brings in the earlier cases, and we have been referred to a substantial number of cases on, what I might call, the ‘two-homes test’. I do not think it is necessary to refer to them all in detail, but I would refer to Hallwood Estates Ltd v Flack (1950) 66(2) TLR 368, which deals with animus revertendi and the corpus possessionis. It is I think worth referring to a passage in the judgment of Sir Raymond Evershed MR, where he emphasises that all these cases are decided on their own particular facts and says: I can well understand that, where it is a matter of going to a new home and not returning to an old home, the significance of what has been called the corpus possessions may be somewhat greater. Once a place has been your home and you are away from it for an appreciable period of time, it needs, it may be, less forcible evidence to clothe the intention in fact to return with actual possession, corpus possessionis, than is required when you had never in fact been to a house before or used it as your home. I only mention that because there has been some decision of the relative weight of the corpus possessionis and the animus possidendi or animus revertendi. But, as Mr Lamming pointed out, these cases do not have any direct relevance in the instant case for this reason, that where one is dealing with a statutory tenancy, one is dealing with an entirely different situation. Those are cases where the tenant has to demonstrate that he has retained possession as his residence. In cases with which the Schedule is concerned, the landlord has, ex hypothesi, given up possession because he has let the premises, so the two cases are not in pari materia. We have also been referred to Langford Property Co Ltd v Tureman [1949] 1 KB 29, where an occupation for two nights a week was held a sufficient occupation to satisfy the provisions of what is now section 2 of the 1977 Act. Then in Beck v Scholz [1953] 1 QB 570 there was a very intermittent occupation. The premises had been occupied for four or five times a year by the tenant. Her husband had occupied between two and 10 times a year — in each case for one night. The Court of Appeal sent the case back to the county court judge for a further determination of the facts. At p 575 of the report Sir Raymond Evershed MR said: I feel a certain sympathy with the judge, for in Langford Property Co Ltd v Tureman this court came to the conclusion that the same county court judge had been in error in deciding (as he had decided) against the tenant. He may have been anxious not to appear to depart from Langford Property Co Ltd v Tureman. Nevertheless, I cannot see that it would be in accordance with the main principle and purpose of the rent restriction legislation to hold that a man may have statutory protection for any premises to which he may occasionally find it convenient to resort, and in which he may keep furniture and install a caretaker, when in no true sense of the term are those premises his ‘home’, for example, where they are merely used as a matter of convenience for occasional visits. After all, the purpose of the Acts, as Scrutton LJ forcibly pointed out many years ago, is to protect occupying tenants against the hardship occasioned by the shortage of houses. That theme was again taken up in Walker v Ogilvy (1974) 28 P & CR 288, where at p 291 Orr LJ expressed the view that this was not an Act which could confer protection for holiday homes. In the same year there was decided by this court the case of Bevington v Crawford (1974) 232 EG 191 which went the other way, where Lord Denning MR, having referred to Beck v Scholz and to Hallwood Estates Ltd v Flack, said: Those two cases show how fine is the line to be drawn. Coming to our present case, this flat at Harrow-on-the-Hill was, in the first place, the home of both parties. Starting off as their home is an important point. It remains their home until they give it up. They have retained the possession in law and in fact. Their furniture is there, their personal belongings and the caretaker. They retain the intention to use it as their home. It was and remains their base, the base from which they moved out and to which they return whenever they come back. It is their only home in England, though true it is they have established another in France. It looks from the evidence as though they may well be using it more in the future. At all events, the evidence is such that the judge could well form the view that they intended it to be their English home and to make such use of it as their own domestic needs and circumstances required: and that is the way they occupied it as their residence. That was a case in which the tenants, having occupied a flat in Harrow-on-the-Hill apparently had then taken up residence in Cannes, but with occasional visits to Harrow-on-the-Hill. But when they came to England, they stayed in Harrow-on-the-Hill — but not at all frequently, as appears from the facts of that case. But it was a case where the court found the conclusion was justified that although the use of a flat was very temporary, it had been temporarily suspended because of the tenant’s business commitments in France; and that the tenant had a genuine intention, when practicable, to revert to using it as his home. Finally, there is the case of Regalian Securities Ltd v Scheuer (1982) 263 EG 973, [1982] 2 EGLR 96. That, I think, is chiefly important in the present context for the analysis by Cumming-Bruce LJ of the way in which this concept of occupation as a ‘home’ has sprung up, because it is in fact a gloss on the Act. At p 974 he said: I do not propose, in this judgment, to cite the long line of authority and to examine the individual judgments. They begin very early after the passing of the first Rent Act and they have continued unabated up to the present time. The explanation was given long ago by Scrutton LJ, and in 1931 also by Goddard J, sitting in the Divisional Court, that the draftsmen of the Rent Acts and Parliament never addressed their or its mind to the implications of the statute that was going through Parliament other than to express words the purpose of which was to enable tenants, faced with a housing shortage, to avail themselves of protection when their tenancies had expired, and nowhere in the statute law was there to be found the expression ‘occupation of residence as a home’. That has been developed in the case law; and the case law has developed this principle, that to qualify for statutory protection the relevant characteristics of the occupation must be occupation as a home. The court had to consider the situation of the seaman who had a home, for which he claimed a protected tenancy, from which he was absent for months on end in pursuit of his seaman’s calling. The court decided that although for months on end the home was not being used by the seaman as a home, yet it was within the contemplation of Parliament that that kind of use on the return of the seaman from his travels to the home that had for months been empty constituted sufficient user as a home to qualify for protection under the Acts. Then the next stage was when the courts had to consider the two-home situation. There is nothing in the Acts of Parliament which prohibits a person from claiming protection for more than one home, and so there is a whole series of cases in which the courts have decided the two-home situation. The question is: Does the occupation of the tenant of a second home have the characteristics which attract to the tenant the capacity of a person protected by the Rent Acts? He then refers to the cases, and continues: One of the problems examined in those cases of two homes is whether the use of the second residence had such characteristics as to make it sensible to describe that user as user as a home as compared simply to a convenient resort. On one side of the line where a man with a house in the Home Counties had a flat in London where he slept twice a week in London for the purposes of his work, that was accepted as a sufficient kind of occupation to enable him to qualify for protection under the Rent Acts. Then, too, an urban dweller with the main home in a town: it has been held he was entitled to claim Rent Act protection for a weekend home to which he resorted at weekends for a couple of days a week. On the other side of the line it has been held that to be a tenant of a property an hour and a half’s drive from your main home, the user in contemplation being simply the user for summer holidays, was not enough to imprint upon that user the characteristics of user as a home . . . He then concludes: 120 I find in the authorities which it is our duty to apply two principles that are relevant. First, the court inquires what is the extent and what are the characteristics of the user of the residence? When that is ascertained the court also inquires: Is the nature of the residence during the period that it persisted the kind of residence that is within the contemplation of the Rent Act? Is this the kind of residence that Parliament intended should clothe the tenant with the right to claim statutory protection? The court has not confined its gaze simply to what went on in the residence: the court has also proceeded to examine all the circumstances in order to see whether the explanation of the residence led to the conclusion that it was the kind of residence that Parliament contemplated when it gave the statutory privilege. In reliance upon those cases, Mr Lamming suggests that here, when one looks at the facts, it was not permissible for the learned judge to come to the conclusion that this was the sort of residence (of which evidence had been given before him by the respondent) such as to entitle him to say that this was residence ‘as a home’ within the meaning of the Act. That, of course, assumes that residence ‘as a home’ is what is being referred to in the Schedule. Mr Hall, for the respondent, points out that this provision really has a quite different purpose from that conferring statutory protection on the tenant. He relies, particularly, upon two things; first of all, upon the specification by Lord Salmon, in the passage to which I have referred, of the purpose of the Act. Secondly, he relies upon what was said by Megaw LJ in the case of Kennealy, at p 851: It is to my mind clear that the legislature has deliberately omitted the word ‘reasonably’ in Case 10, and has deliberately inserted it in Case 8. It may well be that there are good reasons of policy within the general policy of the Rent Act 1968 why that distinction should have been drawn. Whether that be so or not, the result of it, I have no doubt, is that in order to comply with paragraph (c) of Case 10 what has to be proved by the person who had previously occupied the dwelling-house as his residence and now desires to occupy it again is that he desires to occupy it and that he intends so to do. I need scarcely say that the desire must be a genuine desire: the intention must be a genuine intention: but no more than that. 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, in the construction of the words ‘he occupies the dwelling-house as his residence’, the connotation which has been accorded to those words by the cases. That is brought in specifically in relation to occupation by the tenant — under section 2 of the present Act, or 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. 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. PURCHAS LJ agreed that the appeal must be dismissed for the reasons given by Oliver LJ and did not add anything of his own. The appeal was dismissed with costs, not to be enforced without the leave of the court. Possession was ordered at the beginning of February 1985. Leave to appeal to the House of Lords was refused.