Wint and another v Monk and another

Rent Act 1977 — Proceedings for possession — Appeal from order of county court judge — Whether alternative accommodation offered to tenants was suitable and whether it was reasonable to order possession — Judge held that accommodation, which consisted of the existing dwelling less one room, was suitable but that in all the circumstances it was not reasonable to make the order — The landlords appealed — The landlords were a mother and son who jointly owned the whole house — The son with his wife and small child had occupied the ground floor of the house, the tenants, a husband and wife, occupying the upper part — The question of reasonableness turned on the position of the husband’s mother, who left other accommodation which she had been occupying and joined her son and daughter-in-law and child on the ground floor — This floor consisted only of two rooms, kitchen and bathroom and lavatory — It was the need to provide further accommodation for the mother which made it desirable to obtain an extra room in the upper part occupied by the tenants — At the county court hearing, where the tenants had appeared in person, questions such as why the mother had left her previous accommodation and whether she could have stayed on there were not properly put — Held that the issue of reasonableness had not been fully explored in the county court and that the matter must consequently be reheard before a different judge — Appeal allowed on this basis This was an appeal from a decision of Judge McDonnell at Lambeth County Court. The appellants were Mrs Beryl Alphersha Wint and her son, Robert Errol Brown, the joint landlords of a house at 17 Eastmearn Road, London SE21. The respondents, defendants in the county court possession action, were Mr and Mrs D G Monk, tenants of the first and second floors of the house. The judge had dismissed the possession action. C Chope (instructed by Jeffrey Gordon & Co) appeared on behalf of the appellants; P Kremen (instructed by James & Charles Dodd) represented the respondents. Giving judgment, ORMROD LJ said: This is an appeal by two landlords, Mrs Wint and Mr Brown. Mrs Wint is the mother of Mr Brown and they are the landlords of a house, 17 Eastmearn Road, London SE21. They together bought that house in November 1978 and apparently got possession of it in December 1978. They then applied in the present proceedings for possession of the upper part — the first and second floors of the house — which are let on a protected tenancy to Mr and Mrs Monk, the respondents to this appeal. The ground on which they applied for possession was the ground that they were offering alternative accommodation and that it was reasonable to make an order for possession in the circumstances of the case. The alternative accommodation which the appellants were offering was the same accommodation which Mr and Mrs Monk had occupied for 20 odd years less one room, this one room, it was said, being required for Mrs Wint’s occupation. The history of the matter is this. In or about the time when Mrs Wint and Mr Brown bought the property Mr and Mrs Monk were living on the first and second floors of the house with their two children and two grandchildren and the husband of their daughter, so that that part of the house at that time must have been very much overcrowded. All the other persons who had been in occupation at the end of 1978 have now moved out and the first and second floors are at present occupied only by Mr and Mrs Monk. The arrangement is that the ground floor, which consists of a living room, a bedroom, a largish kitchen, a bathroom and lavatory, is occupied at present by Mr Brown, his wife and their little boy who is coming up to three, and now his mother, Mrs Wint. On the first floor there is a living room, a bedroom, a bathroom and a kitchen. On the second floor is a bedroom and one room which is called a ‘storage room’ but looks like a sort of attic room with a skylight. The primary question in this case was Mrs Wint’s own personal position. The accommodation on the ground floor is obviously adequate for Mr and Mrs Brown and their little boy. It has become inadequate because Mrs Wint is now there and she has to sleep on a collapsible bed in the living room — obviously inconvenient for everyone. So it became an important question as to how and why she moved in. It is clear that she did not move in at the same time as Mr and Mrs Brown. In fact she moved in about a year later. In giving her evidence in chief she said not one single word as to when or why she moved in. Her evidence in chief was quite silent on the circumstances in which she came to be in the premises. Unfortunately Mr and Mrs Monk were not represented by counsel. They were doing the case themselves the best they could. Judging by the learned judge’s note, Mr Monk did very well in his cross-examination. He asked various questions of Mrs Wint in the witness box and particularly how it came about that she had given up her previous accommodation. The answer Mrs Wint was recorded as giving to that is: I got a notice to quit where I was living at 132 Edgeley Road. I moved to 17 Eastmearn Road at the end of February 1980. I still have my belongings at Edgeley Road. A little lower down she said: I did not intend to move to 17 Eastmearn Road. Apparently there was no re-examination on those points. In his judgment the learned judge came to the conclusion that the alternative accommodation that was offered, that is, the existing accommodation less one or other of the bedrooms, was suitable for Mr and Mrs Monk, although the fact is that it means that their self-contained maisonette — as it is at present — will cease to be self-contained. No issue arises in this court as to that today. Having come to the conclusion that the alternative accommodation offered was suitable, the learned judge then asked himself the proper question, is it reasonable to make the order?  He said: This question is equally difficult. He recalled that it was a case where the plaintiffs had bought the house subject to Mr and Mrs Monk’s tenancy and knew what they were buying and that at first only Mr and Mrs Brown and their child had moved in. He noted, as was plainly the fact, that Mrs Wint had84 come to the premises, creating the position of great overcrowding on the ground floor. The judge went on: Now the first plaintiff says that she had been living at Edgeley Road when she got notice to quit. She still has her belongings there and her property there. I have no idea whether she could have remained there as a statutory tenant. It is a difficult question and I have to balance depriving the defendants of part of the maisonette where they have lived for 20 years, and on the other hand leaving Mrs Wint in a position where, she says, she is now sleeping on a collapsible bed in a living room downstairs. In my judgment the balancing factor is that she has not really satisfied me that she had to leave 132 Edgeley Road, and in these circumstances, I do not think it reasonable to make the order for possession, and so the action is dismissed. By way of appeal Mr Chope has submitted that the learned judge was wrong to attach that degree — or any degree — of importance to the fact that Mrs Wint failed to explain why she had moved into the premises and why she had left Edgeley Road. He went so far as to say that it was not a proper consideration for a learned judge when considering whether it was reasonable to make the order at all. He referred to commercial landlords who sometimes will require a tenant who is occupying more space than he needs to to contract into less space and leave the landlord free to use the remainder of the premises. No doubt it is right. It does happen from time to time. But the question always in these cases for the learned judge to decide is whether it is reasonable to make the order assuming that the landlord can bring himself within one or other of the relevant cases under the Rent Act. It is clear that, in deciding what is reasonable, the court has to look at all the surrounding circumstances. It is an impossible situation to say that the judge should consider whether it is reasonable by covering his eyes with blinkers and not looking at one fact or another. To my mind it is plainly a question to consider very carefully why this situation developed in the ground-floor flat. One only has to take a hypothetical example. Suppose Mrs Wint has a freehold house of her own which she was living in up to 1979 and which she has chosen to let to tenants or to friends and has moved into this grossly overcrowded flat with her son and daughter-in-law. Then she comes to court and says that it is reasonable to make an order against the Monks for possession of a room. To my mind it is a very odd conclusion to say that in such a situation it would be reasonable to make such an order. It seems to me wholly unreasonable for the landlords to ask for what is really a very inconvenient adjustment — without some reasonable explanation. The judge was perfectly right in saying that there was no evidence before him to show that the situation had arisen on the ground floor which could not reasonably have been avoided by taking appropriate action on the part of Mrs Wint. In those circumstances it is very difficult indeed to see how the learned judge can be criticised. In fact, on the material before him, in my judgment he was fully entitled to come to his conclusion. I say that bearing fully and clearly in mind the many decisions of this court that the question of reasonableness is essentially a question for the trial judge. The fact however is — and Mr Chope has now asked leave to amend the notice of appeal to raise this matter — that the point was not clearly put by Mr Monk in cross-examination. He is not to be blamed for this — he is not a lawyer. Mr Chope says — and one knows how fast these cases go through in the county court and how easy it is to miss an important point — that he had not realised the importance the learned judge was going to attach to this question as to why Mrs Wint left her previous accommodation. So he did not ask any question and he was not ready with answers or indeed with material to explain that move on her part. Perhaps she could explain it wholly satisfactorily. In those circumstances, bearing in mind the extreme importance of this case to both families, it would be a pity if the decision turned on a technical question of whether or not one side called the necessary evidence. It seems to me that it would be better that this matter be reheard and reheard completely on both issues — reasonable alternative accommodation and reasonableness — by another judge. That implies no criticism whatever of the learned judge who tried the case, simply that in fairness to both these families this case should be dealt with on the true facts and not on some artificial assumed facts arising out of the trial process. I have much sympathy with Mr and Mrs Monk in this respect. I would allow this appeal on that basis only and direct that the matter be reheard in toto before another judge. FOX LJ and BUSH J agreed. The appeal was allowed, the case to be heard as a whole before another county court judge.