Whitty v Scott-Russell

House and cottage as “a separate dwelling” — Tenant claims protection of Rent Acts — Judge refuses landlords possession — Decision challenged by appeal — Judgment for respondent This was an appeal in which the principal question at issue was whether a house and a cottage, let jointly to the same tenant, constituted a single separate dwelling within the meaning of the Rent Restrictions Acts and were, therefore, protected under the Acts. The appellants were Messrs Ronald Henry Tarlton Whitty, John Patrick Noel Whitty, Charles William Michael Whitty and Peter Brian Hamilton Whitty. They appealed against the refusal of Judge Gerald Hurst, at Tunbridge Wells County Court on December 15, 1949, to grant them possession of premises known as Tower House and Cottage, Wadhurst, Sussex, occupied by Mr Norman Scott-Russell, the respondent to the appeal. The appellants were represented by Mr John Elton (instructed by Fladgate & Co, agents for Sir Robert Gower, Tunbridge Wells); Mr John Stephenson (instructed by Lee, Ockerby & Co, agents for Buss, Brotherton & Murton Neale, Tunbridge Wells) appeared for the respondent. Mr Elton said the facts in the case were not in dispute. The premises were converted into a house and a semi-detached cottage by Sir John Tarlton Whitty, in 1937, and on June 26, 1937, they were let to Mr Scott-Russell for three years at an annual rental of £75. Mr Scott-Russell had since lived only in the house, sub-letting the cottage unfurnished. The rateable value of the house was £30 and of the cottage £11. At the end of the three years’ tenancy, Mr Scott-Russell held over as a yearly tenant. Sir John Whitty died on May 8, 1948, and the executors of his will gave Mr. Scott-Russell notice to quit on December 22, 1948, expiring on June 24, 1949. The appellants became joint tenants by assent of the executors, but Mr Scott-Russell had not given up possession. The appellants had claimed possession and mesne profits, but the respondent claimed he was a statutory tenant protected by the Rent Acts. In his judgment, said Mr Elton, Judge Hurst held that the defendant was a protected tenant of all the premises comprised in the tenancy agreement, although the cottage had been sub-let from the start. He accepted the respondent’s contention that the house and cottage were one dwelling-house within the meaning of the Acts. Judge Hurst had said the case seemed to be governed by Lord Somervell’s judgment in Langford v Goldrich (1949, 1 KB 512), when the Court of Appeal decided that if the facts justified it, two flats let together could constitute a separate dwelling within the meaning of the Acts. It was a case in which the tenant required more accommodation than was to be found in one flat and he applied to his landlord for an extra flat, using both as his home. In the present case, said Mr Elton, the position was different as Mr Scott-Russell had never used the cottage as his home. After arguments in support of his submission that the premises were not covered by the Rent Acts, Mr Elton said that even if he was wrong, he was entitled to possession of the cottage. He added that if the tenant was not protected, the sub-tenant was not protected either. Mr Stephenson submitted that the property was let as a dwelling-house within the meaning of the Acts and was a house to which the Acts applied. The facts which justified Judge Hurst in coming to his decision were the terms of the lease and the layout of the premises. The house and cottage were one building with one garden. The only fact that weighed against the tenant was that the cottage was a distinct unit from the house, but it was smaller than the house and would naturally be taken to go with it. Mr Stephenson said that if the landlords had applied for possession of the cottage only, they would probably have succeeded. He would not have contested it as he was only interested in the house, which was Mr Scott-Russell’s home. He submitted that the house, at least, was protected. Counsel added, in reply to Mr Justice Roxburgh, that before the letting Mr Scott-Russell was told he would have to take the cottage with the house, but that he could sub-let it. The property became protected under the 1939 Act. In his reply to Mr Stephenson’s submissions, Mr Elton submitted that the premises were two separate dwelling-houses and were let as such. He agreed, however, that if the tenant had used the whole of the premises as his dwelling, the appellants would have had no case. Giving the judgment of the Court, Lord Justice Asquith said that Mr Scott-Russell covenanted to use the premises as and for a private dwelling-house only and also not to assign or under-let the premises without the written consent of the landlord. At the trial the onus was on the respondent to establish that the Acts protected him. This involved proving: (1) That the complex letting was a dwelling-house within the meaning of the Acts, and (2) that it was a dwelling-house to which the Acts applied. The appellants alleged that neither of these had been established. Were the premises let as “a house” or two houses, and were they let as “a separate dwelling” or two separate dwellings? Or was only part of it a separate dwelling? Lord Justice Somervell had held, in Langford v Goldrich, that two flats or two houses could be a separate dwelling-house within the meaning of the definition. The Court was bound by that decision, but was the composite house in the present case let as a separate dwelling? In the Goldrich case the tenant used both flats as his home, but here the tenant only took the cottage with the house because the lessor refused to let the one without the other. He never lived in the cottage. In Wolfe v Hogan, 1949, 1 KB, Lord Justice Denning said that to determine whether a house was let as a dwelling within the meaning of the Acts, it was necessary to look at the purpose of the letting. If the lease contained an express provision as to the purpose of the letting, it was not necessary to look further. In the present case, said Lord Justice Asquith, the tenant expressly covenanted to use the premises as a private dwelling-house only, and if Lord Justice Denning’s proposition was to be taken as both authoritative and unqualified, it clinched the respondent’s argument. “We are of opinion that the complex letting in this case was a dwelling-house within the definition,” he said. “It seems to be immaterial, from the authorities, whether the person who dwells on the premises is the tenant or his sub-tenants, though, of course, the tenant loses the protection of the Acts if he sub-lets the whole of the premises and moves out. “For these reasons we conclude that the subject-matter of the head lease was a dwelling-house within the definition of Section 16(1) of the 1933 Act. On the question whether it was a dwelling-house to which the Acts applied, Lord Justice Asquith said it had been argued for the appellants that Section 3 of Sub-section 1 of the 1939 Act excluded this house from the operation of the Acts because: (1) It was a dwelling-house let, together with land, other than its site, and (2) the qualifying conditions were not satisfied as, although the cottage was let with the house, the cottage was not “premises let together with a dwelling-house” because “premises” must be read as being premises which are not themselves a dwelling-house. This argument seemed to rest on a misconception as to what, on the facts of this case, was a dwelling-house to which Sub-section 3 had to be applied. This was not a house without the cottage, but the two combined. This composite dwelling-house was one to which the Acts applied. This was a case where land (not premises) was let, together with a dwelling-house, and the sub-section only provided that, in that event, the land (though considerably exceeding the area of the site) was to be treated as part of the dwelling-house and shared any immunity conferred on the latter by Section 1. The appeal was dismissed, with costs.