Shackleton v Greenhalgh

Landlord’s claim for possession against sub-tenant — Appeal from County Court Judge’s refusal — Defence claims protection of Rent Acts — Does sub-tenant share with landlord? — Appeal allowed The position of a sub-tenant in relation to the landlord after the head-tenant had left the premises was the subject of this appeal from a judgment by Judge Harrison at Southport County Court. Mr Reginald Henry Shackleton, of Peets Lane, Southport, Lancs, had applied to the County Court for possession of 2, Mill Lane Crescent, Churchtown, Southport, occupied by Mr James Greenhalgh, but the Judge refused the application on the ground that Mr Greenhalgh was protected by the Rent Restrictions Acts. Mr Shackleton appealed against this judgment. Mr JM Davies (instructed by Messrs Peacock and Goddard, agents for Messrs Mawdsley and Hadfield, Southport) represented the appellant; Mr P Bristow (instructed by Messrs Pritchard, Englefield & Co, agents for Messrs Hodge and Halsall, Southport) appeared for the respondent. Mr Davies said Mr Shackleton, as the owner of the house in question, was entitled to possession. The tenant was formerly Mrs Ada Wilde, who sub-let part of the house to Mr Greenhalgh with the use of the kitchen, which they shared. In February, 1950, she left the premises, but Mr Greenhalgh and his wife remained. No rent had been asked of them. In his judgment, the Judge (said Mr Davies) said it had been submitted for Mr Shackleton that as the tenant abandoned the premises, Mr Greenhalgh was now sharing them with the landlord and was not protected by the Landlord and Tenant (Rent Control) Act, 1949. The Judge added that, in his opinion, Mr Greenhalgh could not be sharing with the landlord unless the landlord was physically on the premises. The Judge also said that if the whole purpose of the 1949 Act was to protect the head tenant and not the sub-tenant as against the landlord, then the distinction between Sections 7 and 8 of the Act became entirely ridiculous. He thought Mr Greenhalgh was protected in his occupation of part of the house. Mr Davies submitted the Judge was wrong in these findings. Giving judgment, Lord Justice Somervell said that before the 1949 Act a sub-tenant, who was “sharing” with his immediate landlord, could not claim the protection of the Rent Acts. Under Section 7 of the 1949 Act, which dealt with the position between a sub-tenant and his immediate landlord, a tenant who “shared” was outside the protection of the Act, but the 1946 Act, which dealt with furnished lettings, applied. This was the position of Mr and Mrs Greenhalgh while Mrs Wilde was tenant of the house. There were no terms which said the position was improved by Mrs Wilde giving up possession. Section 9 of the 1949 Act said that where the tenant had sub-let part of the premises, but not the whole… no part of the premises should be treated as not being a dwelling by reason only that it included the use of accommodation in common. This section, said Lord Justice Somervell, dealt with the position as between a landlord and a tenant who had himself made the sharing sub-tenancy or had sub-let part of the premises. He did not think the section contained any express terms to support the contention for Mr Greenhalgh that he was in a better position in relation to the landlord than when he was a sub-tenant of Mrs Wilde’s. It would have prevented the landlord from obtaining an order for possession against Mrs Wilde merely because she had effected a sharing sub-tenancy. He thought the appeal should be allowed. Lord Justice Jenkins agreed. He said Section 9 protected the tenant and allowed him to deal with the premises as he thought fit without jeopardising his position or rights because he let some part under a sharing arrangement. Lord Justice Birkett concurred. The appeal was allowed, with costs.