Prince v Robinson and another

Plaintiff tenant of flatlet in larger house – Tenant moving away – House damaged by fire and refurbished – House sold to defendants – Defendants knowing nothing of tenancy – Tenant claiming statutory tenancy – Whether plaintiff occupying flat within meaning Rent Act 1977 – Judge finding plaintiff not occupying flat – Plaintiff’s appeal dismissed In early 1993 the defendants, a married couple, bought with vacant possession 13 Southwood Avenue, London N6, a five-bedroom Victorian semi-detached house. The house had recently been refurbished and on the ground floor there was a large kitchen/dining area. In January 1995, with no prior warning, the defendants received notice of a claim by the plaintiff in the county court asserting that he was a subsisting tenant of part of the house. In 1980 when the plaintiff had been granted a periodic tenancy, the house was in multiple occupation and divided into a number of flatlets. The plaintiff’s furnished flatlet, with shared cooking and washing facilities, was on the ground floor. In 1989 the plaintiff moved to Devon and did not live in the flat again after November 1990. The house was severely damaged by a fire in 1991. After the subsequent reconstruction and refurbishment the plaintiff’s former flatlet no longer existed, having become part of the kitchen/dining area. In 1993 the plaintiff moved to Portugal. The defendants had no knowledge of the history of the house although the report of their surveyor mentioned fire damage. In 1995, following receipt of the notice, the defendants’ solicitors served a notice to quit on the plaintiff, who was living in Portugal, so as to terminate whatever contractual tenancy he might be found to have had. The plaintiff then sought a declaration that that his tenancy of the flatlet was “subsisting” and that the defendants were bound by his tenancy. He contended that he remained a statutory tenant pursuant to section 2(1)(a) of the Rent Act 1977 of a space then forming part of the defendants’ kitchen. It was common ground that the monthly periodic tenancy was terminated by the notice to quit, which expired on March 18 1995. The judge held that the plaintiff had not become the statutory tenant on March 19 1995 because: (1) the flatlet had ceased to exist by 1993 and, accordingly, the contractual tenancy could not have been a protected tenancy within section 1 of the 1977 Act before its termination, and therefore the plaintiff could not have become a statutory tenant after its expiry; and (2) on March 19 1995 the plaintiff did not occupy the flatlet as his residence within the meaning of section 2(1)(a) of the 1977 Act.The plaintiff appealed. Held The appeal was dismissed. The plaintiff had not, since November 1990, had possessions of any substance in the flat nor had he been in residential occupation. While occupation did not mean living in the flat for 365 days per year and even fairly long periods of absence could equal occupation, nevertheless, as a matter of fact and degree, the judge had found that the plaintiff “simply cannot be regarded as having occupied the premises as his residence immmediately before the fire in February 1990”. That undoubted fact was not attributable to any act of the landlord. The judge had not erred and the court would not disturb his findings of fact. Richard Bloomfield (instructed by A Marcou & Co) appeared for the appellant; Timothy Fancourt (instructed by Speechly Bircham) appeared for the respondent.