St Catherine’s College v Dorling

Rent Act 1977–Letting of house to Oxford college–Subleting of rooms to undergraduates, each having exclusive use of his particular room–Whether tenancy granted to college was a protected tenancy–College agreed a rent with landlord but subsequently applied to rent officer to determine a fair rent on footing that tenancy was a regulated tenancy–Tenancy to college was granted with object of providing a number of ‘Separate units of habitation’ for undergraduates–Importance of contemplated use of premises–House not a dwelling-house ‘let as a separate dwelling’–Horford Investments Ltd v Lambert followed–No decision on status of subtenancies to undergraduates, but presumably section 8 of Rent Act 1977 applied–County court judge’s decision upheld This was an appeal by St Catherine’s College, Oxford, from a decision of Judge Clover at Oxford County Court, refusing a declaration sought in an application by the college that the college held a house at 208 Headington Road, Oxford, on a protected tenancy. The house had been let to the college by the landlord, J A Dorling, on the terms set out in the judgment of Eveleigh LJ and occupied by five undergraduates in accordance with arrangements therein described. Alan Boyle (instructed by Linnell & Murphy, of Oxford) appeared on behalf of the appellant college; Terence Etherton (instructed by Outred & Co, of Weybridge) represented the respondent. Giving the first judgment at the invitation of Megaw LJ, EVELEIGH LJ said: On March 14 1979 in the Oxford County Court, His Honour Judge Clover refused to grant a declaration, on the application of St Catherine’s College, that the premises 208 Headington Road, Oxford, of which the college was the tenant, were the subject of a protected tenancy under section 1 of the Rent Act 1977. That section reads: Subject to this Part of this Act, a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act. As a result of the reluctance of houseowners to provide rented accommodation for students, Parliament introduced section 8 of the Rent Act 1977, which reads as follows, by subsection (1): A tenancy is not a protected tenancy if it is granted to a person who is pursuing, or intends to pursue, a course of study provided by a specified educational institution and is so granted either by that institution or by another specified institution or body of persons. A firm of estate agents in Oxford, Runyards, with the co-operation of a large number of Oxford colleges, introduced a scheme by which it was envisaged that accommodation would more readily be made available to undergraduates. They published a booklet giving details of that scheme. The general idea was that the owner of the house would let premises to the college, who would then make the accommodation available to undergraduates. A £50 deposit was taken from undergraduates who had made an application for the accommodation, and that deposit was treated as an application fee, unless the arrangements were finally completed, when it was treated as part-payment of rent. Runyards orally guaranteed to the colleges concerned that every undergraduate would have a separate room. In so far as 208 Headington Road is concerned, there were four undergraduates of the college who applied to Runyards for accommodation. They found a suitable house, namely, 208 Headington Road. The college was willing to take those premises under a lease. On June 12 1978 the undergraduates signed a document entitled ‘Agreement and Indemnity,’ which stated: ‘In consideration of the college, through the domestic bursar, entering on my behalf into a lease of 208 Headington Road, Oxford, from July 8 1978 for one year less seven days at a rent of £224.25 per month. . . . I hereby agree with the college to fulfil and observe all conditions and covenants contained in their lease and to indemnify the college against all liabilities which it may incur thereunder.’  That document bears five signatures, for, on discovering that the house would accommodate five, one further undergraduate was found to live there. It is not alleged in this case that the college took a lease as agent for the undergraduates who signed that indemnity or for any other undergraduate. Indeed, the landlord clearly would not have made a contract with the undergraduates themselves. Nor is it shown that the landlord was aware of the terms of that agreement. The premises consisted of three rooms upstairs and two rooms downstairs. There was a small kitchen; there was a bathroom; and there were two wcs, one inside and one outside. One of the two downstairs rooms had a dining table and four chairs. There were no locks on the doors of the rooms. Each room was equipped with sufficient furniture for its use as a bedroom and a study and sitting-room. The premises were occupied by the five undergraduates. Each took a room. Each gave a cheque for his share of the total rent; and generally speaking one of them would take all the cheques to Runyards. The dining table was taken from the room where it was when they first occupied the premises and set up in the kitchen. The general practice was for these occupants to cook in relays, providing their own individual food, although on occasions, at week-ends in particular, they might eat together around that table. The question in this case is whether the premises were let as a separate dwelling within the meaning of section 1. The important point in answering that question is to determine the contemplated use of the premises. In Ponder and Another v Hillman and Another [1969] 3 All ER 694 Goff LJ, at p 696, referred to the case of Wolfe v Hogan and to a particular passage in the judgment of Evershed LJ (as he then was) and then continued: He there approved a passage in Megarry on the Rent Acts (4th ed) p 19, in these terms: ‘Where the terms of the tenancy provide for or contemplate the use of the premises for some particular purpose, that purpose is the essential factor, not the nature of the premises or the actual use made of them. Thus, if the premises are let for business purposes, the tenant cannot claim that they have been converted into a dwelling-house merely because somebody lives on the premises.’ So it follows that one has to consider the terms of the lease and the surrounding circumstances at the time that the lease was granted. It may be that in some cases that assistance can be obtained from the subsequent user of the premises. But in my opinion generally speaking such assistance will be found to be a matter of last resort. I turn to consider the terms of the tenancy agreement in this case. There is the usual habendum and reddendum, and then I turn to clause 2 (1) (i), in which the tenant covenants Not to use the demised premises otherwise than for occupation by a person or persons who are as specified by section 8 of the Rent Act 1977 pursuing or intending to pursue a course of study provided by the Tenant whether the said person or persons occupy the demised premises as subtenants or licensees. Subclause 1 (ii) reads: Not to assign sublet part with possession or share possession or occupation of all or part of the demised premises furniture fixtures fittings or effects or any part thereof provided that there shall be no breach of this clause if the tenant shall be a specified educational institution as defined by section 8 of the Rent Act 1977 and either the Tenant sublets only to a person who is pursuing or intending to pursue a course of study provided by the Tenant or the Tenant grants a licence for the use of the demised premises to such person. Then subclause (m), the user clause, reads as follows: Not to carry on or permit to be carried on upon the demised premises any profession trade or business whatsoever or let apartments or receive paying guests in the demised premises but to use or permit the same to be used as private residence only in the occupation of one person per room and not in any way to contravene the Town and Country Planning Acts and not to exhibit any notice or poster on any portion of the demised premises. Mr Boyle has submitted that here a group of students, or undergraduates, intended to occupy the premises as joint occupants of the whole, and that this was the object and purport of the tenancy granted to the college. He particularly relied upon subclause (m) and invited the court to say that the words ‘to be used as private residence only’ should be read to include the indefinite article: that is to say, ‘to be used as a private residence only.’ Mr Boyle then referred the court to the case of Whitty & Others v Scott-Russell [1950] 2 KB 32. There, a house and cottage which were semi-detached were the subject of the letting. There was no internal intercommunication. The tenant covenanted ‘to use the premises as and for a private dwelling-house only.’  It was held in that case ‘that, notwithstanding that the tenant did not and had never intended to occupy the cottage himself, the house and cottage were, having regard to the terms of the lease and, in particular, the covenant by the tenant to use the demised property as a dwelling-house only, let as a single dwelling and therefore constituted a dwelling-house within the definition’ in the Rent Act–in that case the Act of 1933. Mr Boyle has argued, by analogy, that if these premises were to be used as a private residence–the emphasis being upon the indefinite article–it meant that they were not to be used as a number of different private residences: therefore they were let as a whole, with the object of their being inhabited jointly by the students. He also placed some reliance upon the words of subclause (1) (ii), where it reads ‘either the tenant sublets only to a person who is pursuing’–etc. He said it was therefore contemplated that no more than one person would take, or that persons could take jointly being responsible for the whole. On the other hand, Mr Etherton, for the landlord respondent, has contended that clause 2 (m) comes to his aid. He has invited the court to construe the phrase ‘as private residence’ as meaning for residential purposes. I would myself accept that submission. One cannot read the words ‘as private residence’ without reading the words that follow, namely, ‘in the occupation of one person per room.’  In my opinion it is no accidental omission of the indefinite article. There is an intentional omission; and the phrase ‘as private residence’ is used similarly to the expression ‘as business premises.’  It is descriptive of the user and not of the premises themselves. When one then sees that what is envisaged is the occupation of one person per room, using that for private purposes, and then turns to the other provision in subclause (1) which I have read, one sees that subletting or a licence to use is contemplated, and the words used are ‘sublets only to a person.’  The importance, to my mind, of the words in that subclause is that they show that a subletting is envisaged. That envisages, as I see it–for one must read this as a whole–that the college is permitted to sublet to a person who is to occupy a single room as a private residence. If the college is to be allowed to ‘sublet to a person’ (to use the words of the subclause) any part of the building, it would follow that it should be allowed to let to more than one person, or the building would otherwise have another part unused. Quite clearly it was never contemplated that the college itself should occupy or make any particular use of the premises–other, that is to say, than as accommodation for undergraduates. Furthermore, of course,76 the plural is used in subclause (1) (i), where we see the words ‘for occupation by a person or persons.’ I therefore read these two subclauses as saying that the college shall be in a position to sublet, and shall be in a position to sublet to ‘persons’; but they must be persons ‘pursuing or intending to pursue a course of study.’  The use of the singular in subparagraph (ii) is simply because it is describing the type of person who may be a subtenant; and, as the college may sublet to a particular type of subtenant and must do so only for occupation of one person per room, it follows, in my opinion, that the purpose of this letting was that the college should be in a position to do just that. In other words, what was being granted to the college here was a tenancy of a building which contained a number of units of habitation, as they have been called. From that interpretation of this lease I would conclude that the premises were not let as separate dwellings. In the case of Horford Investments Ltd v Lambert [1976] Ch 39, a landlord let to a tenant two houses. Those houses had been converted into a number of ‘units of accommodation,’ and at the time of the lease those units were in fact occupied. The question arose in that case as to whether this was a letting of a dwelling-house, and indeed a separate dwelling-house, so as to attract the protection of the Act. At p 48 Russell LJ said this: Accordingly, in my judgment the tenancy of each of the two houses in this case is not within the definition of a protected tenancy because of the plurality of dwellings, or, as I have labelled them, units of habitation, comprised in the premises when let and obliged by the terms of the letting to be so maintained. In that case the covenant in regard to one of the two flats–the user clause in the lease–was in these terms: ‘The lessee will not use . . . the premises or any part thereof for the purposes of any trade or business nor for any purpose other than residential in multiple occupation.’  In my opinion, clause 2 (m) of the lease which this court has to consider is to the same effect: it is, not to use ‘other than residential in multiple occupation.’ Mr Boyle, however, has argued that the rooms in this house were not dwellings, and consequently the case of Horford Investments Ltd v Lambert has no application. He further submitted that there is a distinction in that the individual units were already let in that case. I cannot accept that those arguments prevent, or in any way militate against, the construction of the lease which I have just stated. Mr Boyle referred the court to the case of Wright v Howell (1947) 204 Law Times Jour 299, where the appellant was the tenant of an unfurnished room in a flat of the respondent landlord. He used as toilet and other facilities those that existed in another flat in the same building which was occupied by the parents-in-law. It was held that, in those circumstances, ‘as the room, when let to the tenant, was devoid of cooking arrangements and water supply, and as the word ‘dwelling’ on its true construction included all the major activities of life, particularly sleeping, cooking and feeding, and as one of those activities, sleeping, was at all relevant times no longer being carried on there, the room was not a dwelling and the tenancy was not protected.’  I do not myself see a parallel, on the facts of that case. In the present case the undergraduates were sleeping on the premises; there were facilities provided. It is not necessary, as the many cases under the Rent Acts show, for those facilities to exist in the room itself. Mr Boyle argued that these rooms did not themselves attract the protection of the Rent Acts: as some accommodation was shared they would be outside that protection, and from this he inferred–in what I regard as a non sequitur–that, as they were not themselves protected dwellings, the whole of the house was itself let as a separate individual dwelling. As I say, that to my mind is a non sequitur. The fact (and I would not concede this) that the rooms might not be protected by the Rent Act does not mean that they were not let. There are many cases where accommodation has been let but by virtue of the sharing of other accommodation–essential accommodation–has been held not to come within the terms of the Rent Act because of the words ‘let as a separate dwelling.’  But that does not in any way deny the finding of the learned judge in this case–on ample evidence to support it–that the undergraduates in fact had the exclusive use of their own particular rooms. Furthermore, on the facts of this case, in my judgment, the learned judge was justified in concluding that it was the intention of the landlord and the tenant college that that should be so. Mr Etherton has submitted, and I agree with the submission, that such an arrangement is not consistent, generally speaking anyway, with the conception of ‘a dwelling-house let as a separate dwelling.’  Generally speaking, ‘a dwelling-house let as a separate dwelling’ envisages that at least someone–that someone being in most cases the tenant in occupation–will have the right to go to any part of the premises he chooses. It may well be that a tenant who takes a separate dwelling-house will sublet so as to preclude himself, vis-a-vis the sublessee, from entering another part of the premises for the period of the subletting; but that is something which occurs after the lease has been entered into and in no way detracts from the right of the tenant vis-a-vis the landlord to go to another room. The existence of someone able to go of his own right to all the rooms of the premises is one of the hallmarks of a dwelling-house. That is completely absent on the findings in this case. That being so, I would agree with Mr Etherton’s submission that the arrangement envisaged in this case was inconsistent with the concept of a building which itself could be described as a separate dwelling. For those reasons I would dismiss this appeal. BRANDON LJ agreed that the appeal should be dismissed for the reasons given by Eveleigh LJ. Also agreeing, MEGAW LJ said: The agreement in this case was made on July 8 1978. On the face of it, it was agreed on that day by St Catherine’s College that a certain rent should be payable. Five days later, on July 13 1978, St Catherine’s College, being a party to that agreement, applied to the rent officer for registration of a fair rent. That is to say, the college sought to challenge that the rent which they appeared to have agreed five days earlier was a fair rent, or the rent which in law could be insisted upon. There is no doubt that the other party to that agreement of July 8 1978, Mr Dorling, through his authorised agents, was firmly of the opinion that the form of the agreement was such as to take it outside the scope of the provisions of law which would have enabled the rent to be referred for an assessment of any rent different from the rent which had been, apparently, agreed. It is difficult to think that the college, in entering into the agreement on July 8 1978, was not aware that that was the view held by the other party to the agreement. But, as Mr Boyle, in my opinion rightly, submits, whatever view might be taken of that in other respects, no such view can properly influence the decision as to the legal effect of the agreement. All that I would say about it, then, is this: it seems to me that the decision at which this court has arrived is more likely to help the continuance of schemes of this sort, if schemes of this sort are desirable, than would have been the result if we had arrived at the contrary conclusion. But, once again, that is not a matter that can rightly affect our judgment in this matter. If indeed it was the view of St Catherine’s College, when it made this agreement on July 8 1978, that the figure of rent contained in that agreement was higher than a fair rent and that therefore the rent which it itself thereafter required the five undergraduates to pay was higher than the college thought to be a fair rent, it might be a matter of hope, and expectation, that the college, now that it has been established that its view of the legal effect of that agreement is not justified, would feel that it would not be appropriate that the undergraduates should bear the77 consequences of the college having seen fit to agree a rent which it believed (if indeed it did so believe) was a rent higher than the fair rent. I agree that the appeal falls to be dismissed. The appeal was dismissed with costs: leave to appeal to the House of Lords was refused.