Palmer v McNamara

Rent Act 1977, section 12 — Resident landlord exception — Whether landlord qualified as a ‘resident landlord’ for the purpose of the Rent Act despite the facts that the room retained by him did not contain a cooker and that he did not sleep there — Appeal from decision of county court judge holding that the plaintiff was a resident landlord and entitled to an order for possession of the flat occupied by the defendant — Judge’s decision upheld by the Court of Appeal The flat occupied by the defendant tenant formed part of a building which was not a purpose-built block of flats — So far there was no problem, but the questions which arose under section 12 related to the plaintiff landlord’s occupation of other accommodation in the building — Was his occupation such as to confer on him the status of a resident landlord and thereby deny the benefits of protection under the Rent Act to the defendant tenant?  The two specific questions were (a) was the landlord at the time when he granted the tenancy occupying another dwelling-house which also formed part of the building, and (b) did the landlord at all times since that tenancy was granted occupy that other dwelling-house as his residence? The facts were that the tenant occupied a ground-floor room at the front of the house, while the landlord retained a ground-floor room at the back — He was in occupation of this back room at the date when he granted the tenancy of the front room and he thereafter continued to occupy the back room — He kept his books and typewriter there, as well as his television122 set and video, a refrigerator, cutlery, electric kettle and a fold-up bed on which he could rest — He spent his days in this room — Practically all his possessions were there, but there was no cooker — The landlord had never learnt to cook — He either bought food, which he did not need to cook, or he bought ready-cooked take-away meals — For reasons connected with his health he required help to dress and undress and in consequence he did not sleep in his room but in the spare room of a friend who lived some distance away It was clear that a single room could be a dwelling-house, but it was suggested on behalf of the tenant that a room without a cooker could not be described as a dwelling-house — It was also suggested that, as the landlord did not sleep in his room, he could not properly be said to be occupying it as a residence — In these two respects, it was submitted, the requirements of section 12 were not satisfied — Both of these submissions were rejected by the Court of Appeal — Using common sense, the room occupied by the landlord contained everything required to be his dwelling-house except a cooker, which he did not want — The judge below rightly dismissed the suggestion that because he did not want a cooker the room he occupied could not rank as a dwelling-house — As regards the other suggestion that the landlord could not be said to occupy the room as his residence, the court again agreed with the judge below — There was authority for interpreting ‘occupy as his residence’ as equivalent to ‘occupy as his home’ — Applying common sense again to what was a matter of fact and degree, the judge was entitled to take the view that the landlord occupied this back room as his home — As a result the tenant’s appeal had to be dismissed The following cases are referred to in this report. Beck v Scholz [1953] 1 QB 570; [1953] 2 WLR 651; [1953] 1 All ER 814, 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 Regalian Securities Ltd v Scheuer [1982] EGD 591; (1982) 263 EG 973, [1982] 2 EGLR 96; 5 HLR 48, CA Skinner v Geary [1931] 2 KB 546, CA This was an appeal by the defendant, Kevin McNamara, against a possession order made by Judge Sumner, at Wandsworth County Court, in favour of the plaintiff, Oliver Rees Palmer, in respect of a room occupied by the defendant at 84 Drakefield Road, Tooting, London SW17. Mark Rowland (instructed by Jenkins O’Dowd & Barth) appeared on behalf of the appellant; Michael Michell (instructed by Collingwood & Co) represented the respondent. Giving judgment, DILLON LJ said: This is an appeal by the defendant in the action, Mr Kevin McNamara, who is by occupation a background artist for television animation, against a possession order made against him at the trial of this action in the Wandsworth County Court by Judge Sumner on February 12 1990. By that order it was ordered that the defendant give the plaintiff, Mr Oliver Palmer, possession of the ground-floor flat at 84 Drakefield Road, Tooting, London SW17, which the defendant has occupied as tenant of the plaintiff. The question is whether the defendant is entitled in respect of that flat to the protection of the Rent Act 1977 and that depends on section 12 of that Act, the side note of which is ‘Resident landlords’. The question is whether the plaintiff qualifies, for the purposes of that section, as a resident landlord. The section provides by subsection (1) that, subject to certain matters which are not material: . . . a tenancy of a dwelling-house granted on or after 14th August 1974 shall not be a protected tenancy at any time if — (a)   the dwelling-house forms part only of a building and . . . the building is not a purpose-built block of flats; and (b)   the tenancy was granted by a person who, at the time when he granted it, occupied as his residence another dwelling-house which — . . . (ii) . . . also forms part of the building . . .; and (c)    subject to paragraph 1 of Schedule 2 to this Act, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to a person who, at the time he owned that interest, occupied as his residence another dwelling-house which . . . also formed part of the building. There is no difficulty over condition (a) in section 12(1). The building is 84 Drakefield Road, the flat occupied by the defendant forms part of it and the building is not a purpose-built block of flats. There has been no change in the landlord since the tenancy was granted; the plaintiff has been the landlord throughout and the questions that arise are, first, whether under condition (b) it can be said that when the tenancy was granted to the defendant in December 1987 the plaintiff who granted it occupied at that time another dwelling-house which also formed part of the building. There is further the question whether both at that time and for the purposes of condition (c) at all times since the tenancy was granted the plaintiff has occupied that other dwelling-house as his residence within the meaning of the section. The factual position is that on the ground floor of 84 Drakefield Road there is a front room which is let by a tenancy to the defendant. It is a bedsit with a kitchen-diner at the rear of it. Beside that, leading towards the rear there is a hall and an inner hall. Off the inner hall there is a bathroom and wc and the ultimate arrangement between the plaintiff and the defendant was that that was to be shared. That, at any rate, was the case until the defendant took it upon himself to put a padlock on the door. There is a door from the bathroom out to the garden and the defendant was to have the right to use the garden, and at the back there was a room retained by the plaintiff. The question is whether, in the circumstances, the plaintiff’s room is a dwelling-house and whether it is occupied and has throughout the tenancy been occupied by the plaintiff as his residence. It appears that the plaintiff occupied the whole of the ground floor of the house from about 1982, at which stage he separated from his wife. In around 1984 he granted a tenancy of the front room to a Miss Murray, who was an aunt of the defendant. Under the terms of that tenancy the plaintiff had shared use, if he wanted it, with Miss Murray not only of the bathroom and wc but also of the kitchen at the rear of the bed-sitting room let to Miss Murray. Miss Murray left towards the end of 1987 and the tenancy was then granted to the defendant with exclusive use of the kitchen at the back of the front room let to him, which indeed includes the kitchen-diner. The plaintiff continued to occupy, and I will come in a moment to his use of it, the back room on the ground floor, which he still occupies. The plaintiff is a gentleman who is now 59 years old. He used to be engaged in advertising, but he retired from that several years ago. However, he does some part-time writing and it seems he has had a book published and has an interest in poetry. In the rear room on the ground floor he keeps practically all his possessions. There are his books and his typewriter, a table and chairs, television, video, a refrigerator, a kettle, a sink, a fold-up bed which he used to use, cutlery and saucepans and obviously, because of the fridge and kettle, electric points. But there is no cooker. There is no cooker because the plaintiff does not cook and has never learnt to cook. When he wants meals in his room at the back, he either buys food which he can eat without cooking or buys hot take-away meals which he brings home and eats in his room. It is said that the room by itself does not constitute a dwelling-house because it has no cooker. It has of course a point, as I have said, and it would be very easy to install a small portable cooker or hotplate if the plaintiff wanted one, but he does not. The test suggested for whether the room constitutes a dwelling-house is whether it had such qualities and facilities as permitted use for the ordinary purposes of living. It has been submitted to us that it is essential, for it to be a dwelling-house, that it must have facilities for cooking, eating and sleeping. It is not enough if it merely provides facilities for any two of those three, without the third. We have been referred by Mr Rowland, for the appellant defendant, to various authorities, but they all have to be taken as decisions on the particular facts with which the court was dealing or as containing comments directed to the particular situation with which the court was dealing. It seems to me quite clear that in considering whether a room or a series of rooms is a dwelling-house one has to look not only at the physical surroundings but at the purpose. Thus in section 1 of the 1977 Act it is stated that ‘a tenancy under which a dwelling-house . . . is let as a separate dwelling is a protected tenancy for the purposes of this Act’. If a flat is let unfurnished, at the moment of letting it will probably not have a bed in it and, if the tenant is going to provide his own portable cooker, it will not have a cooker in it, but I cannot believe that the criterion of the Act is so stringent on the need for a dwelling-house to contain a bed and a cooker that unfurnished lettings are not protected. Using common sense, as is permissible, the room occupied by the plaintiff contains everything required to be his dwelling-house, except a cooker, which he does not want. There could be a cooker there and it would then be a complete dwelling-house. I cannot take the view that just because he does not want a cooker, the room he occupies cannot rank as a dwelling-house. It is, of course, clear that a single room may be a dwelling-house. That is commonly the case in tenancies and it can apply equally well to the landlord’s occupation when section 12 has to be considered. Therefore, I take the view that Judge Sumner was correct in holding that what the plaintiff retained was indeed a dwelling-house. Does he, then, occupy it as his residence?  He used to beyond any question. Indeed, in this field of law the terms used, which have now been part of the jurisprudence on the subject for 70 years, are very well understood — ‘residence’, ‘dwelling-house’, ‘occupied as his residence’ — and so the cases that come before the courts tend to be cases where the facts are unusual. To that generality the present case is no exception. Apart from his inability to cook, which has had the result that he does not have a cooker in his room, the plaintiff suffers from ailments as a result of which he has not slept in the room since before the tenancy was granted to the defendant. The plaintiff’s evidence is that he has diabetes, but, more seriously, he has a 3-inch shortening of his left leg and osteo-arthritis in his left hip which has caused serious deterioration. That is supported by a doctor’s certificate, which refers to it as ‘long-standing hip joint disease’. The effect of that, particularly if the climate is damp, is that he needs help to dress and undress himself. Therefore, since 1987 he has spent his nights in the spare room of the house of a very old friend, a Miss Ducker, who lives about a mile or mile-and-a-half away from Drakefield Road. The plaintiff has a car and can travel between the two houses. He uses her spare room and keeps a change of clothes there. He probably now has baths there, because of the difficulty in dressing and undressing, and sometimes has his evening meal or Sunday lunch with Miss Ducker at her home. He may keep the odd book there, but he does not keep his other possessions there. The furniture in the spare room is Miss Ducker’s furniture. It is said that because he sleeps at Miss Ducker’s home he does not use his room at 84 Drakefield Road as his residence. He does not use Miss Ducker’s spare room as a residence either, and he is therefore in the position, which is not impossible but perhaps unusual, of a man with accommodation but no residence. He spends his days at 84 Drakefield Road. He does his writing and reading there. He watches television and video and has meals that he brings in. But it is said that because he does not sleep there he does not occupy it as his residence. The question whether a dwelling-house is occupied as a residence is commonly paraphrased as ‘does he occupy it as his home?’: see the observations of Lord Brandon in Hampstead Way Investments Ltd v Lewis-Weare [1985] 1 All ER 564 at p 568A.*  He said: 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. *Editor’s note: Also reported at [1985] 1 EGLR 120 at p 122. The word ‘home’ was used by Scrutton LJ in the leading case of Skinner v Geary [1931] 2 KB 546. It was also used by Lord Evershed MR in Beck v Scholz [1953] 1 QB 570 at p 575 and by May LJ in Regalian Securities v Scheuer [1982] 5 HLR 48. Applying that test, which raises a question of fact and degree to be determined by applying ordinary common sense, I have no doubt that the judge was entitled, and indeed right, to take the view that the plaintiff occupied his back room as his home. That is enough to determine this appeal. We were referred to authorities which are concerned with the question whether, if a person has ceased, for whatever reason, to occupy a dwelling-house as his home he can none the less save the position for the purposes of the Rent Act if he has an intention or desire to return to the dwelling-house, and we had an argument on whether it was relevant that at one stage the plaintiff had had it in mind to sell 84 Drakefield Road. But this does not, to my mind, arise as a question for decision if I am right in the view, which the judge also took, that he is currently occupying the room as his residence or home. I would dismiss this appeal. Agreeing, BINGHAM LJ said: The learned county court judge set out the facts of this case in considerable detail and reviewed the relevant law with great care. Counsel has not persuaded me that he was guilty of any legal misdirection and there is no challenge to his factual conclusions. This makes the appellant’s task very difficult because the field is one in which the facts and circumstances of individual cases are usually determinative. The appellant’s task is even more difficult because the facts of this case are, in the literal sense, extraordinary. No closely comparable facts appear to have occurred in any reported case and they are perhaps unlikely to recur. The first question for decision, as Dillon LJ has indicated, is whether the premises have the necessary characteristics of a dwelling-house for the purposes of the Act. Mr Rowland, for the appellant, submitted that they lacked an essential characteristic of a dwelling-house because there were no cooking facilities and therefore they could not be used for one of the more fundamental functions of living. To this, Mr Michell, for the landlord, pointed out that any unfurnished dwelling-house might not contain facilities for living, such as a bed or a table, but since these could readily be provided the premises were none the less a dwelling-house. By parity of reasoning he pointed out that the plaintiff could easily have provided rudimentary means for cooking and the only reason why he did not do so was because he either bought food out and brought it back to eat or he ate out. The learned judge accepted Mr Michell’s submission, as, in my judgment, he was fully entitled to do. But for the plaintiff’s unusual habits, the argument would not have been open and those habits do not, in my judgment, prevent these premises being a dwelling-house. The second question was whether the plaintiff occupied the premises as his residence. A long line of authority, to which Dillon LJ has referred, shows that the correct approach is to ask the simple and intelligible question: was the plaintiff in occupation of these premises as his home?  The judge concluded that he was, despite the fact that for medical reasons he slept elsewhere. The learned judge’s conclusion was, in my opinion, fully justified by the evidence and was correct. It is enough, however, for the purposes of this appeal, to say that there are no grounds on which this court could possibly say that he was wrong. I would also therefore dismiss this appeal. The appeal was dismissed with costs, not to be enforced without leave of the court. Legal aid taxation on both sides ordered.