Wellcome Trust Ltd v Hammad; Ebied and another v Hopkins and another; Church Commissioners for Engla
Leggatt LJ, Morritt LJ, Brooke LJ
Shop with living accommodation above – Headlease falling outside Rent Act 1977 because Part II of Landlord and Tenant Act 1954 applicable – Whether residential subtenant becoming statutory tenant on termination of headlease by operation of section 137(3) of the 1977 Act – Appeal by former subtenant allowed
Common to the facts of three consolidated appeals were: (i) a letting to T for a lengthy term of mixed business and residential premises to which, because of T’s business occupation of the ground floor, Part II of the Landlord and Tenant Act applied; (ii) a subletting by T to the appellant of residential accommodation on the other floors; (iii) a rejection by the county court of the appellant’s claim that, on termination of the headlease, he was entitled to remain in possession as a statutory tenant by virtue of section 137(3) of the Rent Act 1977. In each case (two concerning living accommodation above a shop) the trial judge had considered himself bound to find that the property comprised in the headlease was not “premises” within the meaning of the subsection as construed in Pittalis v Grant [1989] 2 EGLR 90, CA. In the Court of Appeal the appellants argued that Pittalis was decided per incuriam, the leading judgment having wrongly applied the decision of the House of Lords in Maunsell v Olins [1975] 1 EGLR 7 on the corresponding provision in the Rent Act 1968.
Held The appeal was allowed.
Shop with living accommodation above – Headlease falling outside Rent Act 1977 because Part II of Landlord and Tenant Act 1954 applicable – Whether residential subtenant becoming statutory tenant on termination of headlease by operation of section 137(3) of the 1977 Act – Appeal by former subtenant allowed Common to the facts of three consolidated appeals were: (i) a letting to T for a lengthy term of mixed business and residential premises to which, because of T’s business occupation of the ground floor, Part II of the Landlord and Tenant Act applied; (ii) a subletting by T to the appellant of residential accommodation on the other floors; (iii) a rejection by the county court of the appellant’s claim that, on termination of the headlease, he was entitled to remain in possession as a statutory tenant by virtue of section 137(3) of the Rent Act 1977. In each case (two concerning living accommodation above a shop) the trial judge had considered himself bound to find that the property comprised in the headlease was not “premises” within the meaning of the subsection as construed in Pittalis v Grant [1989] 2 EGLR 90, CA. In the Court of Appeal the appellants argued that Pittalis was decided per incuriam, the leading judgment having wrongly applied the decision of the House of Lords in Maunsell v Olins [1975] 1 EGLR 7 on the corresponding provision in the Rent Act 1968.
Held The appeal was allowed.
1. The subsection applied where,inter alia, the accommodation in dispute “forms part of premises which . . . do not constitute a dwelling-house let on a statutorily protected tenancy . . . “. The majority of their lordships in Maunsell, while rejecting, in the light of its legislative history, the wider meaning of “premises”, nevertheless accepted that the expression included “any premises which, as a matter of fact, applying accepted principles, would be held to be a dwelling-house for the purposes of the [1968] Act”. Given the many instances where mixed premises had been held to be a dwelling-house, there was nothing in Maunsell to defeat the appellants’ claim: see for example Hicks v Snook (1928) 27 LGR 175; Vickery v Martin [1944] 1 KB 679; Whiteley v Wilson [1953] 1 QB 77.
2.The appellants had correctly maintained that the decision in Pittalis rested on the false premise that a building not subject to a statutorily protected tenancy, here because of the application of Part II of the 1954 Act, was incapable for that reason alone of being a dwelling-house for other purposes of the 1977 Act.
Paul Morgan QC and Stephen Cottle (instructed by Bindman & Partners) appeared for Hammad; Timothy Dutton (instructed by Cameron McKenna) appeared for the Wellcome Trust; Paul Morgan QC and Andrew Short (instructed by Alan Edwards & Co) appeared for Hopkins; David Brounger (instructed by Ronald Fletcher & Co) appeared for Ebied; David Watkinson (instructed by Ashley Wilson) appeared for Baines; Patrick Rolfe (instructed by Radcliffes ) appeared for the Church Commissioners for England.
