Whitworth and another v Lipton and another

Residential property — Landlord seeking possession on notice — County court ordering possession as property required as residence for wife and daughter — Wife occupying property for only a few weeks — Court of Appeal holding that fact that property occupied for short time and then sold did not negative intention to occupy as residence — Former tenant’s appeal on costs dismissedThe plaintiffs owned a house in Great Totten, Essex, which they let to the defendants when they went to live abroad. The tenancy was initially for six months and then on a month-to-month basis, at £320 per month. In 1990 the wife wished to come back to England and they sought possession of the property for her and their daughter. The county court made a possession order on the basis that they had occupied the property as their residence, which they had let on a regulated tenancy and the court was satisfied that the house was now required by the wife as her residence under Schedule 15, Part II Case 11 of the Rent Act 1977. She moved into the property for a few weeks. However, she found it difficult to adjust to living in what had been her family home and she went to stay with relatives. The property was put on the market. The defendants took the view that she had never intended to live there and obtained leave to appeal against the possession order out of time. The property was sold before the appeal came on for hearing and the defendants realised that they could not regain possession or claim compensation. However, they sought to have the costs order against them in the county court reversed. Held Their appeal was dismissed. 1. Under Schedule 15, Part II Case 9 of the Rent Act 1977 the court might make a possession order in favour of a landlord where it had been shown that the property was reasonably required by the landlord. The landlord had to show a genuine desire and immediate intention to use the dwelling-house as a residence for him or his family: see Kennealy v Dunne [1977] 1 QB 837, which was brought under section 10, Schedule 3, Part II Case 10 of the Rent Act 1968, as amended by the 1974 Act. 2. If all the landlord established was an intention to realise his interest in the premises as soon as possible and live in the premises temporarily until he was able to do so, then he was not entitled to succeed: see Rowe v Truelove (1977) 241 EG 533. 3. However, under Schedule 15, Part II Case 11 of the 1977 Act, the court might make a possession order where it was satisfied that the landlord “required” the dwelling-house for himself or a member of his family. 4. There was thus an apparently deliberate exclusion of the word “reasonable” from that provision — in contrast to Case 9 (supra). There was no objective standard of reasonableness. Therefore, Case 11 was intended to enable a landlord to take up residence abroad and let his property and be free to return home having given proper notice to his tenant. 5. In this case the evidence was that the wife intended to live in the property and she did live there, albeit for a short period. The fact that only one of the two joint owners returned to live there did not affect the position. Further, the fact that a returning landlord did not live in the property all the time did not count against him under Case 11. The intention of the landlord to live in the house until it could be sold was consistent with occupying a house as a residence under Case 11. The defendant appeared in person; Michael Lane (instructed by David Williams Partnership, of Witham) appeared for the respondents.