Uratemp Ventures Ltd v Collins

Landlord and tenant –– Assured tenancy –– Dwelling-house –– Hotel rooms –– Housing Act 1988 –– Room without separate kitchen –– Whether occupier having assured tenancy –– Cooking facilities –– Whether hotel room a dwelling-house The respondent was the owner of an hotel containing 58 rooms, 15 of which were used as long-term residences. The appellant moved into a room in the hotel in January 1985, but subsequently changed his room three times. One of the rooms occupied by him contained a single bed, some furniture, a shower and a basin. No cooking facilities were provided in any of the rooms. The appellant brought a pizza warmer, a toasted sandwich-maker, a kettle and a warming plate into his room. The respondent’s claim for possession of the room was dismissed in the county court on the ground that the appellant had an assured tenancy of a dwelling-house that was protected by the Housing Act 1988. The Court of Appeal, in allowing the respondent’s appeal from the county court ([2000] 1 EGLR 156), decided that the appellant’s room was not a “dwelling-house” as it was not provided with cooking facilities. The court concluded that had its decision been otherwise, it would have remitted the issue as to whether the appellant held a lease or a licence to the county court. The appellant appealed. Held: The appeal was allowed. If the appellant held a tenancy, the subject room was let as a separate dwelling-house. In both ordinary and literary usage, residential accommodation is a “dwelling” if it is the occupier’s home. It is the place where he lives and to which he returns, and which forms the centre of his existence. It has never been a legislative requirement that cooking facilities must be available for premises to qualify as a dwelling. In deciding whether a person occupies a “dwelling-house” for the purposes of the Housing Act 1988, the first step is to identify the subject matter of the tenancy agreement. If this is a house, or part of a house, of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date the proceedings were brought, it was the tenant’s home. If so, it was his dwelling. In the case of an agreement by which the tenant shares the use of some rooms, the question is whether the room, or rooms, of which he has exclusive possession are his dwelling place or only part of it. The right to occupy a living room in common with, and at the same time as, the landlord is such an invasion of his privacy that parliament cannot be taken to have intended that the tenant should enjoy security of tenure. For this purpose, a kitchen is a living room. The presence or absence of cooking facilities in the part of the premises of which the tenant has exclusive occupation is not relevant. The following cases are referred to in this report. Baker v Turner [1950] AC 401; [1950] 1 All ER 834; (1950) 66 TLR 780, HL Barnett v Hickmott [1895] 1 QB 691 Cole v Harris [1945] 1 KB 474 Curl v Angelo [1948] 2 All ER 189 Dunston v Patterson (1858) 5 CB(NS) 267 Goodrich v Paisner [1957] AC 65; [1956] 2 WLR 1053; [1956] 2 All ER 176; [1956] JPL 482, HL Hayward v Marshall [1952] 2 QB 89; [1952] 1 All ER 663 Kenyon v Walker; Stevenson v Kenyon [1946] 2 All ER 595 Marsh Ltd v Cooper [1969] 1 WLR 803; [1969] 2 All ER 498; (1969) 20 P&CR 940, CA McCarthy v Preston [1951] NZLR 1091 Metropolitan Properties Co (FGC) Ltd v Barder [1968] 1 WLR 286; [1968] 1 All ER 536; (1968) 19 P&CR 304 Neale v Del Soto [1945] KB 144; [1945] 1 All ER 191 Palmer v McNamara [1991] 1 EGLR 121; [1991] 17 EG 88; (1991) 23 HLR 168 Parkins v Westminster City Council [1998] 1 EGLR 22; [1998] 13 EG 145; (1998) 30 HLR 894 Powell v Guest (1864) 18 CB (NS) 72 Prout v Hunter [1924] 2 KB 736 R v Ireland; R v Burstow [1998] AC 147; [1997] 3 WLR 534; [1997] 4 All ER 225, HL Stribling v Halse (1885) 16 QBD 246 Thompson v Ward; Ellis v Burch (1871) LR 6 CP 327 Westminster City Council v Clarke [1992] 2 AC 288; [1992] 2 WLR 229; [1992] 1 All ER 695; (1992) 24 HLR 360; 90 LGR 210 Wimbush v Cibulia; Wimbush v Levinski [1949] 2 KB 564; [1949] 2 All ER 432; (1949) 65 TLR 583 Winters v Dance [1949] LJR 165 Wright v Howell (1947) 92 SJ 26 This was an appeal by John Collins from a decision of the Court of Appeal allowing the appeal of the respondent, Uratemp Ventures Ltd, from a decision of Judge Cotran in West London County Court dismissing the respondent’s claim for possession against the appellant. Andrew Arden QC and Richard Vain (instructed by Alan Edwards & Co) appeared for the appellant; Michael Barnes QC (instructed by the Treasury Solicitor) appeared as amicus curiae. The respondent did not appear and was not represented. Giving the first opinion, LORD IRVINE OF LAIRG said: 1. My lords, I have had the advantage of reading in draft the comprehensive judgment of my noble and learned friend, Lord Millett. I adopt his analysis of the facts, the relevant legislative histories and the authorities; and also the orders he proposes. 2. This appeal concerns the words “a dwelling-house… let as a separate dwelling” in section 1 of the Housing Act 1988. A single room, as part of a house, may be a dwelling-house, and on this appeal there is no issue of shared accommodation or facilities. The key issue is whether the room that Mr Collins occupied in the Viscount Hotel, Prince of Wales Terrace, Kensington, when proceedings were brought could, in law, qualify as a “dwelling” only if cooking facilities were available there. Unless constrained to the contrary by authority, I would impose no such restrictive interpretation. Such a restrictive interpretation would be both unwarranted by the statutory language and an inappropriate gloss on provisions designed to give some protection to tenants in modest rented accommodation under assured tenancies. 94 3. “Dwelling” is not a term of art, but a familiar word in the English language, which, in my judgment, in this context, connotes a place where one lives, regarding and treating it as home. Such a place does not cease to be a “dwelling” merely because one takes all or some of one’s meals out, or brings in takeaway food to the exclusion of home cooking, or, at times, prepares some food for consumption on heating devices falling short of a full cooking facility. 4. Decisions on the infinite factual variety of cases are for judges of trial, and their decisions on the facts of individual cases should neither be treated, nor cited, as propositions of law. I would not myself, for example, regard a bed, any more than cooking facilities, as an essential prerequisite of a “dwelling”: every case is for the judge of trial, but I would have no difficulty with a conclusion that one could live in a room that is regarded and treated as home, although taking one’s sleep, without the luxury of a bed, in an armchair or in blankets on the floor. 5. For these short reasons, along with those of Lord Bingham and Lord Steyn, I, too, would allow the appeal and make the orders my noble friend, Lord Millet, proposes. Giving the second opinion, LORD BINGHAM OF CORNHILL said: 6. My lords, I gratefully adopt the factual narrative given by my noble and learned friend Lord Millett, and also his summary of the relevant legislation and authorities. 7. first is whether the landlord has granted a tenancy of the premises in question or merely a licence to occupy them. That was a live question in the present case, but one that, if relevant when the second question had been answered, would have had to be remitted to the county court. The second question is whether, if a tenancy be assumed, the premises that were let are a dwelling-house. 8. Much of the case law on this section and its predecessors has been directed to the requirement that the premises be let as a “separate” dwelling: see, in particular, Neale v Del Soto [1945] KB 144, Cole v Harris [1945] KB 474, Kenyon v Walker [1946] 2 All ER 595, Winters v Dance [1949] LJR 165, Baker v Turner [1950] AC 401, Hayward v Marshall [1952] 2 QB 89, Goodrich v Paisner [1957] AC 65, Marsh Ltd v Cooper [1969] 1 WLR 803 and Parkins v Westminster City Council [1998] 1 EGLR 22*. In these cases, some space or facility was (or was said to be) enjoyed in common between the tenant and another or others, and the question was whether that which was enjoyed in common was of such a character, or of such significance, as to preclude description of what was let as a separate dwelling. In this context, distinctions were understandably and rightly drawn between living rooms, such as bedrooms and kitchens, and ancillary offices, such as bathrooms and lavatories: common enjoyment of the former, but not the latter, tended to weigh against recognition of the premises let as a separate dwelling. * Editor’s note: Also reported at [1998] 13 EG 145 9. None of these problems arises here. It is accepted (rightly, on the long-standing authority of Curl v Angelo [1948] 2 All ER 189) that a single room may be a dwelling-house. Mr Collins did not enjoy any space or facilities in common with other occupants. So the short question is whether room 403, the room let (as it is assumed) to Mr Collins, is a dwelling-house. 10. Save that a dwelling-house may be a house or part of a house (section 45(1) of the 1988 Act), no statutory guidance is given on the meaning of this now rather old-fashioned expression. But the concept is clear enough: it describes a place where someone dwells, lives or resides. In deciding in any given case whether the subject matter of a letting falls within that description, it is proper to have regard to the object of the legislation, directed as it is to giving a measure of security to those who make their homes in rented accommodation at the lower end of the housing market. It is not to be expected that such accommodation will necessarily offer all the amenities to be found in more expensive accommodation. 11. The time at which it has to be judged whether premises are entitled to protection is when action is brought: Baker v Turner [1950] AC 401 at pp415 and 419-420. At that stage, it is necessary to consider the terms of the letting, the premises let and, in my opinion, the use made of them by the tenant: see section 1(1)(b) of the 1988 Act, which recognises that circumstances may change during the currency of a tenancy. 12. It appears, in the present case, that Mr Collins habitually used some electrical devices to warm food in his room before eating it. The room was equipped with a power point, which permitted that. I doubt if what he did could properly be described as cooking, but I do not think it matters. It is, in my view, plain on the evidence that this room was Mr Collins’ home, the place where he lived, and this is so whether he had his meals out, or warmed up food to eat in his room, or did a little rudimentary cooking, or a bit of all three. If a room were so small and cramped as to be unable to accommodate a bed, I should be inclined to doubt whether it would qualify to be called a dwelling-house, because, although sleeping in premises may not be enough to make them a dwelling-house, premises will not ordinarily be a dwelling-house unless the tenant sleeps there. But, in my view, the courts should be very wary of laying down inflexible rules that come to be mistaken for rules of law, even though they are very largely conclusions of fact based upon particular cases. That is what, as I think, has happened in this field, as Lord Millett has shown. 13. I am of the clear opinion that room 403, if let to Mr Collins under a tenancy, was let as a separate dwelling-house. For these short reasons, as well as those given by the Lord Chancellor, Lord Steyn and Lord Millett, I would allow this appeal. For reasons given by Lord Millett, it is now inappropriate to remit the matter to the county court to determine whether there was a letting to Mr Collins. On 25 September 2000 the landlord, Uratemp Ventures Ltd, withdrew its opposition to this appeal. I agree with the costs order proposed by my noble and learned friend. Giving the third opinion, LORD STEYN said: 14. My lords, the question is whether a modest room in the Viscount Hotel, Prince of Wales Terrace, Kensington, occupied by Mr Collins, is a dwelling-house. It arises under section 1 of the Housing Act 1988, which speaks of “a dwelling-house… let as a separate dwelling”. Since Mr Collins did not share accommodation or facilities with other persons in the hotel, the only issue before the House is whether the room occupied by Mr Collins is a “dwelling-house” within the meaning of section 1. Part of a house may be a dwelling-house: see section 45(1). And it is common ground that a bed-sitting room may be a dwelling-house. But the majority in the Court of Appeal held that the particular room could not be a dwelling-house because of the absence of cooking facilities. They treated the presence of cooking facilities as an indispensable requirement for a person’s home being a “dwelling-house” within the meaning of section 1. They thought that an observation in the leading judgment of Lord Templeman in Westminster City Council v Clarke [1992] 2 AC 288 at p299A compelled this conclusion. On this question, 14 decisions, of which 11 were of the Court of Appeal, were cited to the House. Acknowledging that such “autopsies” have their value at times, Cardozo J famously described such examinations as “wearisome and gruesome scenes”. In my view, a resort to first principles points to a route through this jungle of judicial glosses on the meaning of dwelling-house. 15. The starting point must be that “dwelling-house” is not a term of art. It is an ordinary word in the English language. While I accept that dictionaries cannot solve issues of interpretation, it is nevertheless helpful to bear in mind that “dwelling-house” has for centuries been a word of wide import. It is often used interchangeably with lodging. It conveys the idea of a place where somebody lives: see Johnson’s Dictionary, sv “dwelling-house” and Murray’s Oxford English Dictionary, sv “dwelling-house” and “lodging”. In ordinary parlance, a bed-sitting room where somebody habitually stays is therefore capable of being described as a dwelling-house. So much for generalities. The setting in which the word appears in the statute is important. It is used in legislation that is intended to afford a measure of protection to tenants95 under assured tenancies. This context makes it inappropriate for the court to place restrictive glosses on the word “dwelling”. On the contrary, as counsel appearing as amicus curiae accepted, the courts ought to interpret and apply the word “dwelling-house” in section 1 of the 1988 Act in a reasonably generous fashion. 16. The social phenomenon of the person “Who friendless in a London lodging lives, Dines in a dingy chop-house” (OED, sv “chop-house” (1861)) goes back a very long time indeed. Dickens has described this world for us in unforgettable scenes. It is to be contrasted with the world of ostentatious dinner parties in smart houses mocked again and again by Trollope in many of his novels. The world has changed. In recent years, there have been great social changes that reinforce the view that it is artificial to place upon the word “dwelling-house” the restrictive gloss that, for a room or accommodation to qualify, it must have cooking facilities. First, there are nowadays many more people who live alone. Specifically, a survey in spring 2000 recorded that three in 10 households in Great Britain comprised one person living alone, more than two-and-a-half times the proportion in 1961: see National Statistics, Social Trends, No 31 (2001 ed) at p41. Second, there has been an explosion in the growth of self-service cafeteria, sandwich shops, takeaway shops, home delivery services and other fast-food outlets. One has only to look under the entry “Food and Drink Delivered” in the most recent edition of the Yellow Pages for Central London (2000/2001) to realise the scale of this development in the eating habits of large numbers of people of all ages. And it is necessary to interpret section 1 of the 1988 Act in the world of today: see R v Ireland [1998] AC 147 at p158C-G. 17. The observation in Westminster City Council v Clarke at p299A by Lord Templeman, that “a bed-sitting room with cooking facilities may be a separate dwelling-house even though bathroom and lavatory facilities might be elsewhere and shared with other people” was not part of the ratio decidendi of the case. The point was not in issue, and the House heard no argument on it. Moreover, as Mance LJ convincingly demonstrated in the Court of Appeal in the present case, the observation was not justified by the earlier authorities. In my view, the observation in Westminster City Council v Clarke was too restrictive. A bed-sitting room that a tenant occupies as his home may be a dwelling even if he brings in all his meals or goes out for all his meals. There is no authority binding upon the House that precludes this construction. In these circumstances, it follows that the room occupied by Mr Collins was his dwelling-house. 18. How such cases are approached by judges at the coalface is important. On this point, I agree with the succinct statement of principles by Lord Bingham of Cornhill in paras 10 and 11 of his speech. 19. For the reasons given by Lord Bingham of Cornhill and Lord Millett, as well as the brief reasons I have given, I would allow the appeal and make the orders proposed by Lord Bingham and Lord Millett. Giving the fourth opinion, LORD HOBHOUSE OF WOODBOROUGH said: 20. My lords, for the reasons already given, and those to be given by my noble and learned friend Lord Millett, whose speech I have had the opportunity of reading in draft, I agree with the orders proposed. I shall add only the further observation that the complications in the present case, as in some earlier cases, have arisen from treating factual decisions as if they involved the formulation of propositions of law. Consistency of approach is required from case to case. But that should not lead to the elaboration of a simple factual description with a supposed legal overlay, preventing the language of the statute from being given effect to in each individual case in accordance with its ordinary meaning. Giving the fifth opinion, LORD MILLETT said: 21. My lords, this case calls upon your lordships’ House to consider, not for the first time, the familiar expression “part of a house let as a separate dwelling”. This formula was the cornerstone of the Rent Acts, and, as such, the daily fare of generations of county court and appellate judges for much of the last century. Yet this is the first time that that your lordships have been called upon to decide the meaning of the word “dwelling” that forms part of the statutory formula. The question for decision is whether a part of a house can constitute a dwelling if cooking facilities are not available or cooking is prohibited by the terms of the letting. 22. In Westminster City Council v Clarke [1992] 2 AC 288, Lord Templeman observed, at pp298H-299A: Under the Rent Acts, in order to create a letting of part of a house as a separate dwelling there must be an agreement by which the occupier has exclusive possession of essential living rooms of a separate dwelling house. Essential living rooms provide the necessary facilities for living, sleeping and cooking. Thus, a bed-sitting room with cooking facilities may be a separate dwelling house even though bathroom and lavatory facilities might be elsewhere and shared with other people: see Neale v Del Soto [1945] KB 144; Cole v Harris [1945] KB 474 and Goodrich v Paisner [1957] AC 65, 79. Following the guidance seemingly offered by this passage, the Court of Appeal in the present case (Peter Gibson LJ and Moore-Bick J, Mance LJ dissenting) felt constrained to hold that the presence of cooking facilities was an essential characteristic of a dwelling. The question for your lordships is whether the absence of such facilities prevents a person’s home from being a “dwelling” within the meaning of the statutory formula, and so precludes the occupier from enjoying security of tenure. Facts 23. The respondent is the owner of the Viscount Hotel, Prince of Wales Terrace, Kensington. The hotel has 58 rooms, 15 of which are occupied by long-term residents. Mr Collins is one of these. He took up occupation of room 510 in January 1985. The standard of accommodation was very modest. The room contained a bed, and had a separate lavatory and a shower and washbasin. Breakfast was available in the restaurant and was included in the rent. 24. Mr Collins has changed rooms three times, first to room 501, paying the same rent, and, later, to room 403, which he was still occupying when the Court of Appeal gave judgment. He has since moved again. Breakfast ceased to be provided when the restaurant closed in 1988. 25. Room 403 measures some 72 sq ft. It has a single bed, some furniture, a shower and a basin. Except for an increase in the amount of the weekly rent, the terms of Mr Collins’ occupation remained the same. 26. No cooking facilities were provided in any of the rooms that Mr Collins occupied, although each of them contained at least one power point. Mr Collins brought in some furniture of his own, together with electrical equipment to enable him to prepare simple meals: a pizza warmer, a toasted sandwich-maker, a warming plate, a kettle, and what he described as “an underlight”. He was not prohibited by the terms of his occupation from bringing such equipment into his room. He took ready-cooked takeaway meals into his room and ate them there. 27. In 1993 the hotel published rules that, on safety grounds, prohibited cooking in rooms otherwise than by the use of microwaves and kettles. Residents were required to accept the rules by signing them, but Mr Collins never did so. He maintained that the terms of his occupation never changed throughout the period of his stay in the hotel. Proceedings 28. On 28 April 1998 the respondent served a notice terminating what it contended was Mr Collins’ licence to occupy room 403. It brought proceedings for possession in West London County Court. Judge Cotran dismissed the respondent’s claim for possession and granted Mr Collins a declaration that he held the room on an assured tenancy within the meaning of section 1(1) of the Housing Act 1988, which employs the customary formula. It was not disputed that the room was part of a house. The respondent denied that it was let or, if it was, that it constituted a dwelling; although if it did, it was a separate dwelling, since Mr Collins did not share accommodation or facilities with anyone else. The judge held that it was let as a separate dwelling and that96 Mr Collins’ meagre culinary equipment satisfied any requirement that a dwelling should possess cooking facilities. 29. The Court of Appeal considered that the judge had made inadequate findings in relation to the question of whether Mr Collins’ occupation was under a licence or a tenancy, and would, if necessary, have remitted the case to the county court for retrial of that issue. In the event, it did not do so because, in the view of the majority, the absence of cooking facilities precluded a finding that room 403 was a dwelling. The room had been let furnished but without cooking facilities, and (it was said) a room did not have the necessary facilities for cooking merely because it had a power point. The position might be different if the room had been let unfurnished, or it had been contemplated that the occupier would bring in his own cooking equipment. Mance LJ dissented. He held that the availability of cooking facilities was not an essential characteristic of a dwelling, and considered that it was artificial to draw a distinction between furnished and unfurnished lettings. On the footing that, contrary to his view, the presence of cooking facilities was essential, he would have remitted the case for retrial of the question of whether the room constituted a dwelling, and, in particular, whether the terms upon which Mr Collins occupied the room contemplated the use by him of his own cooking facilities. Ordinary meaning of “dwelling” 30. The words “dwell” and “dwelling” are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as “inhabit” and “habitation”, or, more precisely, “abide” and “abode”, and refer to the place where one lives and makes one’s home. They suggest a greater degree of settled occupation than “reside” and “residence”, connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports. It finds no support in English literature. According to the Book of Common Prayer, “the fir trees are a dwelling for the storks” (Psalm 104), while WS Gilbert condemned the billiard sharp “to dwell in a dungeon cell” (where, it will be remembered, he plays with a twisted cue on a cloth untrue with elliptical billiard balls): The Mikado Act II. It is hardly necessary to observe that Victorian prison cells did not possess cooking facilities. Of course, the word “dwell” may owe its presence to the exigencies of the rhyme, but it does not strike the listener as incongruous. If faintly humorous, it is because the occupation of a prison cell is involuntary, not because of the absence of cooking facilities. As I shall show hereafter, Gilbert, who had qualified at the Bar, had got his law right. An earlier, and greater, poet wrote of Lucifer being hurled “to bottomless perdition, there to dwell in adamantine chaos and penal fire”: Paradise Lost Book I l.47. 31. In both ordinary and literary usage, residential accommodation is “a dwelling” if it is the occupier’s home (or one of his homes). It is the place where he lives and to which he returns, and which forms the centre of his existence. Just what use he makes of it when living there, however, depends upon his mode of life. No doubt, he will sleep there and usually eat there; he will often prepare at least some of his meals there. But his home is not the less his home because he does not cook there, but prefers to eat out or bring in ready-cooked meals. It has never been a legislative requirement that cooking facilities must be available for premises to qualify as a dwelling. Nor is it at all evident what policy considerations dictate that a tenant who prepares his meals at home should enjoy security of tenure while a tenant who brings in all his meals ready-cooked should not. How then have the courts reached the conclusion that, as a matter of law, the presence of cooking facilities is an indispensable characteristic of “a dwelling”? Parliamentary franchise. 32. The first of the Rent Acts was the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915. This applied to “a house or a part of a house let as a separate dwelling” (section 2(2)), and the formula was repeated in succeeding Rent Acts and has been carried over into the more recent Housing Acts. But its genesis was older, being derived from the formula that was employed in relation to the parliamentary franchise. 33. The Reform Bill of 1832 extended the franchise to males over the age of 21, who satisfied a property qualification by occupying a house or other building in the constituency of a specified minimum annual value. The courts held that four elements must be present: tenement, value, occupation and estate. A difficulty was caused by the requirement that the tenement be “a house or other building”. It was not doubted that a single room could constitute a separate house if there were a sufficient degree of structural separation from the rest of the building of which it formed part. The Representation of the People Act 1867 (30&31 Vict, c102) introduced the word “dwelling house”, but refrained from defining it except to provide (by section 61) that it should include “any part of a house occupied as a separate dwelling, and separately rated to the relief of the poor”. 34. The meaning of this expression was explored in the great case of Thompson v Ward; Ellis v Burch (1871) LR 6 CP 327, in which a four-man court was divided on every issue and equally divided on the outcome. The court held (by a majority of three to one) that section 61 of the 1867 Act removed the requirement of structural separation by directing attention to the nature of the occupation, rather than its subject matter. In the course of his judgment, Bovill CJ (who was in the majority on this point) said at p358: It is quite clear that part of a house, even a single room, may properly and legally be considered and described as a house or dwelling-house. For instance, Lord Coke, in treating of burglary, in 3 Inst 64-65, says: “A chamber or room, be it upper or lower, wherein any person doth inhabit or dwell, is domus mansionalis in law;” which Parke, B, explains, in Monks v Dykes 4 M&W 569, to refer “to a chamber under certain circumstances, viz when a house is divided into several chambers, with separate outer doors.” In that case Lord Abinger also makes the remark that “a room within a house may be a dwelling-house or it may not.” In a passage of some significance for present purposes, the Chief Justice proceeded at p359 to give examples of rooms that could properly be considered to be dwelling-houses: The following may also be mentioned as familiar instances of parts of houses being considered houses, viz chambers in the Albany, chambers in the Inns of Court, rooms in the colleges at the universities, shops in the Burlington Arcade, flats in Victoria Street, apartments in Hampton Court Palace. Whatever may have been the position in the case of the other examples given, the inclusion of rooms in colleges at the universities is illuminating. Unmarried fellows who lived in college in the 19th century did not prepare their own meals or cook in their rooms. Their rooms not only lacked cooking facilities but were without running water, and dons in residence, like the undergraduates, ate in hall or had their meals brought to them from the college kitchens. At the most, they may have made tea in their rooms or toasted muffins over an open fire, but the opportunity to engage in such minor activities can hardly be the distinctive characteristic of a dwelling. 35. There were limits, of course. Attempts to claim the franchise by persons who were in gaol failed on the ground that a prison cell was not a dwelling. This was not because it lacked cooking facilities, but because the residence was compulsory and temporary “and without any intention on the [occupier’s] part of remaining, but, on the contrary, with an intention… of leaving it when she could”: Dunston v Paterson (1858) 5 CB(NS) 267, per Willes J. In Powell v Guest (1864) 18 CB (NS) 72 at p80, Erle CJ expressly approved a statement in a contemporary textbook that stated that the occupant must have “at the least a sleeping apartment”. He did not suggest that this was insufficient. 36. The difficult case of Stribling v Halse (1885) 16 QBD 246 was a foretaste of what was to come. A shop assistant had exclusive occupation of a furnished bedroom in a dwelling-house belonging to his employers. The house contained other bedrooms and a dining room, in which the residents took their meals in common, which were provided by their employers. It was doubted whether a person could be said to occupy a bedroom as his dwelling when he dwelt partly in the bedroom and partly in another room. In the mistaken belief that such doubts had been removed by a decision of the Court of Appeal, the Divisional97 Court held that the bedrooms were separately occupied as dwelling-houses for the purpose of the franchise. The decision was later doubted (see Barnett v Hickmott [1895] 1 QB 691), but only because of the existence of the communal dining room. No doubt was cast on the decision in so far as it involved a finding that a bedroom that lacked cooking facilities was a dwelling. In Barnett v Hickmott, a policeman failed to obtain the franchise by virtue of his occupation of a lock-up cubicle in a dormitory, but only because the cubicle was insufficiently partitioned from the rest of the dormitory, and the ventilation, atmosphere and lighting were common to all the cubicles. He was not denied the vote because he could neither cook nor eat in his cubicle. Rent Acts 37. The Rent Acts adopted a similar formula, but varied it slightly from “occupied as a separate dwelling” to “let as a separate dwelling”, but nothing seems to have turned on this. The premises to which the Acts applied were necessarily let unfurnished or only sparsely furnished, since they did not apply where a substantial charge was made for the use of furniture. It was established very early that it was the state of things at the date when the proceedings were brought that mattered: Prout v Hunter [1924] 2 KB 736 (a point that the majority judgments in the Court of Appeal in the present case appear to have overlooked), and the use to which the tenant put the premises once he had furnished them was taken to be indicative of their character and the purpose for which they were let. The Housing Acts have extended security of tenure (and the application of the statutory formula) to furnished lettings, but the question still has to be determined as at the date when proceedings are brought, by which time the premises will almost invariably have been furnished, whether or not they were originally so let. Where the tenant has not installed cooking facilities of his own, no sensible distinction can be drawn between premises that were originally let unfurnished and premises that were let furnished but without such facilities. 38. The object of the Rent Acts was to protect people from being evicted from their homes. Their legislative purpose was, therefore, very different from that of the Representation of the People Acts, and it could be dangerous to rely upon the 19th century cases, particularly in relation to the word “separate”. But there is no reason to be chary of doing so in relation to the word “dwelling”. Security of tenure, like the property qualification for the franchise, was given in respect of premises that constituted a person’s home. 39. Over the course of the 20th century, much judicial labour was expended on the statutory requirements that the premises must be “let” (so that they must be occupied under a tenancy and not a mere licence), and that they must be let as a “separate” dwelling (that is to say, not shared with others). Shared accommodation or facilities presented a special problem, and it is convenient to deal first with the cases where this element was absent. “Dwelling” 40. There are only a handful of reported cases in which a single room has failed to qualify as a “dwelling” for the purposes of the Rent Acts, and in none of these was this because it lacked cooking facilities. In Wright v Howell (1947) 92 SJ 26 (CA), the room had neither cooking facilities nor water supply at the date of the letting, although the tenant afterwards installed an electric cooker. After the tenant’s wife had a baby, the family slept upstairs in a flat belonging to her parents. Scott LJ said: the word “dwelling”, on its true construction, included all the major activities of life, particularly sleeping, cooking and feeding… and that, as one of those activities, sleeping, was not being carried on there, the room was not a dwelling and the tenancy was not protected. Given that the tenant did not sleep on the premises, the decision is unremarkable. It is not an authority for the proposition that the tenant must also be able to cook there, for, at the date when the proceedings were brought, he did. The case is simply one where, at the relevant time, the tenant did not dwell in his own flat, but partly there and partly in his parents-in-law’s flat, so that his flat was not a dwelling, but only part of a dwelling: see McCarthy v Preston [1951] NZLR 1091 at pp1092-1093. This is how the case was explained by Lord Greene MR in Curl v Angelo [1948] 2 All ER 189 at p192, and it is in conformity with Lord Reid’s explanation of the cases on shared accommodation in Baker v Turner [1950] AC 401 at p437: If a tenant has to share with another person a living room which is not let to him, it is in my view impossible to find anything which is let to him as a separate dwelling. It cannot be the let rooms plus the right to use the other room, because that other room is not let to him at all – he is only a licensee there. And it cannot be the let rooms alone, because his having to share another room shows that the let rooms are only a part of his dwelling place. (Emphasis added.) 41. In Curl v Angelo, two rooms were let to the proprietor of an adjoining hotel as additional accommodation for the hotel. They were used mainly for guests, but occasionally for the tenant’s family or staff. The tenant’s claim for protection was rejected on the ground that the premises were not a dwelling. They were not “the home of anybody; they were a mere annexe or overflow of the hotel”. But Lord Greene MR made it clear that a dwelling could consist of a single room. He said at p190H: It must not be thought for a moment that I am throwing any doubt on the proposition that where there is a letting to a man of one room which is the only place where he moves and has his being, that circumstance will prevent the room being a “dwelling” within the meaning of the Act, but here one has the activities connected with the dwelling of all these people divided between two tenements. Their main activities of living are conducted in the hotel. They go out to sleep in these rooms –– sometimes the guests, sometimes the servants, and so on. Where is the “dwelling”? It seems to me clear that this annexe or accretion to the accommodation of the hotel cannot be regarded as a “dwelling,” much less as a “separate dwelling.” Lord Greene explained Wright v Howell as another case where the tenant carried on only one of his home activities on the premises that were the subject of the letting, while he carried on others in a different tenement altogether. 42. In Metropolitan Properties Co (FGC) Ltd v Barder [1968] 1 All ER 536, a protected tenant of a flat under a 12-year lease took a quarterly tenancy of a small single room on the opposite side of the corridor for use by an au pair. It was furnished as a bedroom with washbasin. It was held that “this tiny room” was not let as “a dwelling-house”. The basis of the decision is not entirely clear, but I have no doubt that it was correct. Even if the room could properly be regarded as the au pair’s dwelling, she was not the tenant, and although the tenant was in occupation of the room by his servant, it was not his dwelling, but only part of his dwelling. Had it been possible to regard the arrangement as a mere extension of the original letting, the result might have been different (see Wimbush v Cibulia [1949] 2 KB 564), but its terms showed it to be an entirely distinct letting. Edmund Davies LJ stressed at p542 that the decision had no application to a case “where a single room is let as the occupier’s place of habitation for all purposes”. 43. None of these cases turned on the absence of cooking facilities. All were cases where, on the facts, the subject matter of the letting constituted only a part of the tenant’s dwelling. 44. The question of whether the landlord qualified as a “residential landlord”, for the purpose of section 12 of the Rent Act 1977, by occupying a bed-sitting room without cooking facilities arose in Palmer v McNamara [1991] 1 EGLR 121*. The landlord had never learned to cook, and either bought food that he did not need to cook or bought ready-made takeaway meals. It was argued that a room without a cooker could not be described as a dwelling. This was rejected by the Court of Appeal, which observed that the room occupied by the landlord contained everything required to be his dwelling-house except a cooker that he did not want. It was his home, and therefore his residence. I have no doubt that the case was rightly decided. It did not, of course, turn upon the statutory formula or the word “dwelling”, but98 the decision of the majority of the Court of Appeal in the present case cannot stand with it. If the room was the landlord’s residence, it was his dwelling. The decision was explained by Moore-Bick J on the basis that the landlord was in the same position as a tenant of an unfurnished room who has the right to install a cooker if he wishes to do so: the fact that he chooses not to do so cannot affect the nature of the premises themselves. But this will not do. As I have already explained, the question has to be determined at the date of the proceedings, not at the date of the original letting. At the relevant time, the premises were furnished but lacked a cooker. Either its absence was fatal to the classification of the premises as a dwelling, or it was not. * Editor’s note: Also reported at [1991] 17 EG 88 Sharing cases 45. The supposed requirement that cooking facilities must be available for premises to qualify as a dwelling derives from cases directed to the question of whether the tenancy constituted a “separate” dwelling when it included shared accommodation or facilities. The conclusion that was reached was that a right to share living accommodation put the tenancy outside the protection of the Acts, whereas a right to make use of communal facilities such as a WC or bathroom did not. For this purpose, a kitchen was classified as a living room. 46. The leading case was Neale v Del Soto [1945] 1 KB 144. The tenant took a tenancy of two rooms, together with the use, in common with the landlord, of the garage, kitchen, bathroom, WC, coal house and conservatory. This was held not to be a letting of the two rooms as a separate dwelling, but a sharing of the house. 47. Neale v Del Soto was explained and distinguished in Cole v Harris [1945] 1 KB 474, where the premises consisted of a bedroom, living room and kitchen on the first floor of a dwelling-house, together with the use of a bathroom and WC in common with the landlord and the tenant of the second floor. The county court judge had understood Neale v Del Soto to lay down a rule of law that “the sharing of any part of the accommodation included in the tenancy contract which is essential to the conception of a dwelling-house, according to ideas held at the present day, prevents the letting from being a letting of part of a house as a separate dwelling”: see p478. This test was accepted by Lawrence LJ in the Court of Appeal, but was firmly rejected by the majority, who said that Neale v Del Soto laid down no such principle. They drew the line in a different place, between the sharing of living accommodation, which took the case outside the Acts, and the use of shared facilities, such as a bathroom and WC, which did not. They agreed that a WC was an essential part of the accommodation according to current modes of living, but it was not a living room. Mackinnon LJ set out the test at p479: It is, I think, difficult to formulate any principle of law which separates what I have called the contrasted conceptions of (1) a demise of part of a house as a separate dwelling, and (2) an agreement to share the use and occupation of a house. But I think Morton LJ provides the best formula by saying that to create (1) there must be an agreement by which the occupier has the exclusive use of the essential living rooms of a separate dwelling-house. After all, a dwelling-house is that in which a person dwells or lives, and it seems reasonable that a separate dwelling should be one containing essential living rooms. A WC may be essential in modern days, but I do not think it is a living room, whereas a kitchen, I think, is. (Original emphasis.) This provides no support for the contention that the availability of cooking facilities is an essential part of the concept of a dwelling-house. Both the kitchen and the WC were essential to ordinary living, but the one formed part of the living accommodation and the other did not. Mackinnon LJ emphasised the word “living”, not the word “essential”. Morton LJ did not even use the word “essential”. He said at p485: I think that the true test, where the tenant has the exclusive use of some rooms and shares certain accommodation with others, is as follows: there is a letting of part of a house as a separate dwelling, within the meaning of the relevant Acts if, and only if, the accommodation which is shared with others does not comprise any of the rooms which may fairly be described as “living rooms” or “dwelling rooms”. To my mind a kitchen is fairly described as a “living room,” and thus nobody who shares a kitchen can be said to be tenant of a part of a house let as a separate dwelling. In many households the kitchen is the principal living room, where the occupants spend the greater part of the day. Very often it is the warmest part of the house and the family tend to congregate there for that reason. On the other hand, both the bathroom and the wc are rooms which are only visited on occasions for a specific purpose, and I think they may fairly be classed with such a room as a box-room, though no doubt it is not visited so often. This explains why the kitchen was classified as a living room. It was not because it afforded the tenant the ability to cook his meals there, but because it was one of the rooms in which he could fairly be said to live. A kitchenette measuring seven feet by six feet and containing, inter alia, a kitchen table was held to be a living room in Winters v Dance [1949] LJR 165, but this is because it was treated as being merely a small kitchen. In Marsh Ltd v Cooper [1969] 1 WLR 803, an even smaller room, probably no more than an alcove, that contained no furniture and in which it was impossible to do anything except cook and wash up (the tenant did not eat there) was held not to be a living room. 48. These decisions lost much of their importance after the passing of section 8 of the Landlord and Tenant (Rent Control) Act 1949. Henceforth, the sharing of accommodation did not preclude the application of the Rent Acts unless it was shared with the landlord. The distinction was the key to the legislative policy that lay behind the requirement that the dwelling be “separate”. As later cases explained, the right of a tenant to share his living accommodation was such an invasion of the landlord’s privacy that parliament cannot be taken to have intended that the tenant should have security of tenure. This was not so in the case of a right to share the use of a bathroom or WC. 49. Not every right to make use of the facilities of the kitchen was sufficient to take the case out of the Rent Acts. In Hayward v Marshall [1952] 2 QB 89, the tenant took a letting of three unfurnished rooms, together with a right to draw water in the kitchen and once a week to use the gas stove in the kitchen to boil washing. These limited rights did not amount to a right to use the kitchen as part of the living accommodation provided by the tenancy, and the tenancy was held to be protected. Unfortunately, in the course of their judgments, both Jenkins LJ and Sir Raymond Evershed MR repeated the expression “essential living accommodation” (without emphasising the word “living”), and this became something of a mantra in later cases. Sir Raymond Evershed MR said at p99: The distinction rests rather upon the view that the ordinary uses and purposes of a kitchen are essential manifestations of living or residence, so that if a tenant of rooms has to rely upon some licence for the exercise of those essential manifestations, he is not, as I have said, the tenant of a separate dwelling. This comes perilously close to reviving the test that was rejected in Cole v Harris. Taken out of context and divorced from the reasoning in Cole v Harris, the use of the word “essential” is potentially misleading. The cases did not decide that a kitchen is an essential part of a dwelling, so that premises that lack cooking facilities are not a dwelling. What they decided was that the essential feature of a dwelling is that it contains living accommodation, and that every room that forms part of the tenant’s living accommodation, including the kitchen if there is one, forms part of his dwelling. It is fallacious to reason that, because a kitchen is a living room and therefore part of any dwelling that possesses one, premises that do not possess a kitchen are not a dwelling. Substitute the word “sitting-room” for “kitchen” and the fallacy is exposed. 50. I think that the word “essential” is best omitted in this context. In summarising the result of the cases in Baker v Turner, none of the members of your lordships’ House found it necessary to use it to qualify the words “living rooms” or “living accommodation”. Lord Porter summarised the result of the decisions at p414: (1) A portion of a house which is let by a landlord to a tenant, even if in itself separate, ceases to be a separate dwelling or to be protected by the Acts if the terms of the letting contain a provision that the tenant shall have the right of using a living room belonging to the landlord: Neale v Del Soto [1945] KB 144. (2) To take away the protection of the Acts, the room over which rights are given must be a living room: a bathroom, lavatory or cupboard will not99 avail, but for this purpose a kitchen is a living room: see Cole v Harris [1945] KB 474. Your lordships were more forthright in Goodrich v Paisner [1957] AC 65. Lord Morton of Henryton considered the use of the word “essential” in the present context to be “not particularly appropriate”, while Lord Radcliffe regarded it as a gloss on the statute, which either begged the question or confused the issue: see pp84 and 91. Lord Radcliffe could see nothing more satisfying in the definition that had been offered in the course of argument: “a living room is a room wherein you cook, eat, sleep and put your feet on the fender”. As he observed: “Why ever should courts of law tie themselves down in this way?” He would have been astonished at the idea that a room or set of rooms could not constitute a dwelling unless they possessed facilities for cooking. 51. The House confirmed the test laid down by the majority of the Court of Appeal in Cole v Harris in the face of an attempt to revive the test that had been adopted by the county court judge and Lawrence LJ in that case. It was argued that the question should be: “Do the rooms so let in fact contain the essentials of a separate dwelling, or is what is let a separate dwelling only if you include with it the other rights or conveniences which the tenancy agreement confers?”. This was once again firmly rejected: see Lord Morton at p85 (dissenting, but not on this point). 52. In Hayward v Marshall, counsel had suggested that there might be a distinction between a concurrent sharing and a consecutive sharing, only the former being sufficient to take the tenancy out of the protection of the Rent Acts. This idea was eventually taken up in Goodrich v Paisner, where the tenant’s right to have the occasional use of a bedroom in common with the landlord was held not to exclude the application of the Rent Acts. It was assumed that the tenancy agreement did not contemplate simultaneous user; there would have had to be some further arrangement by which there would be separate user at successive times. On this footing, there was not such a sharing as would involve the invasion by the one party of the privacy of the other sufficient to exclude the application of the Rent Acts. 53. So I can come to Westminster City Council v Clarke [1992] 2 AC 288. The case concerned a hostel with 31 rooms, each with a bed and limited cooking facilities. Accommodation was made available to vulnerable persons by the local authority in the discharge of its social responsibilities. Mr Clarke occupied one of the rooms as his only home. The question for decision was whether he had exclusive possession of the room. If he did, he was a secure tenant. On the facts, the House held that none of the occupants had exclusive possession of his room. The restrictions placed on their use of the rooms, the facts that they were not entitled to any particular room and might be required to share a room, and, above all, the fact that the grant of exclusive possession would be inconsistent with the social purpose for which the accommodation was provided, all pointed to this conclusion. 54. Lord Templeman gave the only reasoned speech. It is clear that the passage that I have cited, and upon which the majority of the Court of Appeal relied in the present case, is not part of his reasoning. It is certainly not authority for the proposition that a room is not a dwelling in the absence of cooking facilities. In the first place, even a clear statement to that effect would have been obiter, since the room in question possessed them. In the second place, this was not the issue: the question was whether Mr Clarke had exclusive possession of his room, not whether it was a dwelling. In the third place, the authorities cited (Neale v Del Soto, Cole v Harris and Goodrich v Paisner) lay down no such principle. All are cases of shared accommodation that do not depend upon the meaning of the word “dwelling”, and the two last-named are entirely inconsistent with the proposition, which would seek to revive the test expressly rejected in each of them. 55. In Parkins v Westminster City Council [1998] 1 EGLR 22 (CA), the tenant occupied a bedroom and shared the use of a common room, kitchen, bathroom and separate WC. Chadwick LJ described the tenant as being faced with an unanswerable dilemma. The premises as a whole were not let as a separate dwelling, since, while they provided cooking facilities, the tenant did not have exclusive possession of them, nor was the bedroom alone let as a separate dwelling, since, while he did have exclusive possession of the room, it did not provide cooking facilities. Whether the correct view was that the tenant was entitled to occupy the whole of the premises or only the bedroom, there was no letting of a separate dwelling. 56. I have no doubt that the decision was correct, but the distinction that Chadwick LJ drew is an analytical not a factual one. The facts were capable of only one interpretation: the tenant was entitled to exclusive possession of the bedroom and the shared use of two living rooms and other facilities. The so-called dilemma is real enough, but is not that depicted by Chadwick LJ. It was described by Lord Reid in Baker v Turner [1950] AC 401, and does not depend upon the presence or absence of cooking facilities. The premises as a whole were not a separate dwelling because the tenant did not have exclusive possession of them, and the bedroom alone was not the tenant’s dwelling, but only part of it. The absence of cooking facilities in part of the house of which the tenant had exclusive possession was not material. 57. My Lords, in Westminster City Council v Clarke, Lord Templeman was merely summarising the result of the earlier cases. It was natural, but unfortunate, that, in doing so, he repeated, at p299, the expression “essential living rooms”, an expression that, as I have already explained, is misleading when taken out of its original context. In agreeing with him, the other members of the House cannot have intended to replace the statutory language by a rigid test that makes the availability of cooking facilities an essential precondition for security of tenure. This would place a gloss on the statute that is not justified by the language or purpose of the statute or the decided cases, and once again revive the heresy, twice previously rejected, that a room, or set of rooms, must possess “all the features essential to the conception of a dwelling house” in order to attract security of tenure. Moreover, such a conclusion would be productive of great difficulties in future cases. It would be necessary to consider just what is sufficient to constitute “cooking facilities”. The Victorian bedroom possessed an open grate; the modern one has a power point. What more is required? And why should even this much be necessary to attract security of tenure? The legislative purpose of the Rent and Housing Acts is to protect people in the occupation of their homes, not to encourage them to cook their own meals. 58. In my opinion, the position is relatively straightforward. The first step is to identify the subject matter of the tenancy agreement. If this is a house, or part of a house, of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date when the proceedings were brought, it was the tenant’s home. If so, it was his dwelling. (He must also occupy it as his only, or principal, home, but that is a separate requirement.) If the tenancy agreement grants, in addition, the right to the shared use of other rooms, the question is whether the room, or rooms, of which he has exclusive possession are his dwelling-place, or only part of it. This depends upon the nature and extent of the right and the character of the other rooms. The right to occupy a living room in common with, and at the same time as, the landlord is such an invasion of his privacy that parliament cannot be taken to have intended that the tenant should enjoy security of tenure. For this purpose, a kitchen is a living room, at least if it is possible to occupy it and not merely cook and wash up in it, so that a right to occupy a kitchen (as distinct from a right to make some limited use of its facilities) in common with the landlord will take the tenancy out of the Acts. The presence or absence of cooking facilities in the part of the premises of which the tenant has exclusive occupation is not relevant. Conclusion 59. In my opinion, the appeal succeeds. 60. After leave was granted to bring the present appeal, and with the agreement of the respondent, Mr Collins vacated room 403 and moved to another room in its hotel. Accordingly, there is no longer any lis between the parties and no remaining issue to be remitted to the county court for decision. On 25 September 2000 the respondent notified the100 judicial office that it did not intend to take any part in Mr Collins’ appeal to the House, and their lordships are grateful to the amicus curiae for his careful and helpful argument. I would allow the appeal and set aside the orders of the Court of Appeal. I would direct that the respondent pays Mr Collins’ costs in the Court of Appeal and of his appeal to this House up to and including 25 September 2000, and that there be no order for the costs of, and incidental to, the hearing in West London County Court. Appeal allowed.