OSullivan v Barnett and another

Recovery of furnished room — Tenant sharing landlord’s accommodation — Landlord and tenant moving into other premises — Tenant taking up occupation before landlord — Whether landlord occupying same or another dwelling-house for purposes of protected tenancy — Landlord obtaining first instance order for possession — Tenant’s appeal dismissedThe defendant tenant appealed against an order that her landlord recover possession of a furnished room at 24 Vardens Road, Battersea, London SW11. The tenant had originally moved into the landlord’s accommodation at 27 Vardens Road soon after the landlord and his wife had acquired it in 1960 and lived there until 1984. Prior to 1984 the landlord also acquired no 24 and they decided to convert their existing accommodation into self-contained flats and to move their residence to no 24 together with their family, who included a grown-up son, C. The tenant knew of their plans and was prepared to move on the basis that she would be offered a tenancy at no 24. C and the tenant were the first to move while the landlord spent the day working on the house, but sleeping at no 27. That arrangement continued between one and four weeks when they also carried out their move. The tenant was given notice to quit in 1992. At first instance the judge found that for the purposes of the law he was not required to consider a “fine matter of timing”. The occupation occurred either before or simultaneously with the creation of the tenancy and the tenant knew what was intended and what would result. The tenant appealed. Under section 12(1)(b)(i) of the Rent Act 1977, a tenancy was not protected at any time if it was granted by a person “who at the time that he granted it” occupied, as his own residence, premises “which also forms part of that building”. Held The tenant’s appeal was dismissed. 1. The case raised a novel point under the Rent Act legislation which had not been previously considered. It concerned a not uncommon situation where a landlord and his tenant together moved from one building to another by mutual consent, the tenant having accepted the offer of a tenancy in the new building in place of his tenancy in the old. 2. In reality it was a concerted move of both households planned in advance and carried out over several days and it was purely fortuitous that it was convenient and sensible for the tenant and C to move first for obvious logistical reasons. 3. It was wholly artificial to split up that co-ordinated transfer from one house to the other into separate stages and the court agreed that it was not appropriate to consider fine matters of timing. 4. The judge had been fully entitled to take into account the intentions of the landlord where those intentions were “clothed with some formal outward and visible sign”: see Hallwood Estates Ltd v Flack (1950) 66 TLR (Pt 2) 368. 5. The purpose of section 12 was manifest, namely to encourage resident owners of houses with rooms to spare to let them, with the assurance that they would be able to recover possession at the end of the contractual tenancy and also to sell what was their major asset with vacant possession. That purpose must always be borne in mind in construing the section; it might well be seriously frustrated if the landlord’s rights were dependent on very narrow distinctions sought to be drawn in the present case. Mark Wonnacott (instructed by Mildred & Beaumont) appeared for the appellant tenant; Christopher Maynard (instructed by Preston-Rouse & Co) appeared for the respondant landlord.