Regulated tenancy — Tenant’s occupation of maisonette — Tenant working as art historian, private client adviser and exhibition organiser — Landlord asserting occupation for business purposes and seeking to determine under Landlord and Tenant Act 1954 Part II — Whether business purposes incidental to residential occupation — First instance decision in tenant’s favour on preliminary issue — Landlord seeking leave to appeal — Leave refused
The tenant, W, occupied since 1970 a maisonette at 48 Northumberland Place, London W2, comprising a large ground-floor room plus basement area. At first W was a sublessee of the premises, but became the direct tenant of the then landlord. The applicant, M, became W’s landlord after acquiring the freehold. He sought to determine the tenancy in 1991 under Part II of the Landlord and Tenant Act 1954, on the basis that W was occupying the premises for his profession as art historian. At first instance, on a preliminary issue, the judge made a number of unchallenged findings as to the nature and extent that W carried on his profession at the premises. He found that there were four categories of work: (a) the organising of exhibitions, mostly done away from the premises; (b) private client work, being the most remunerative, none of which took place at no 48; (c) the writing of articles and books, etc, which took place at the maisonette although the research was conducted elsewhere; (d) lecturing which was done away from the flat. The judge then considered the layout of the premises and found that there was no office, photocopier or fax machine although the books kept in the flat overflowed into all the rooms.
The judge then dealt with the relevant legal principles as to whether the premises were occupied for purposes of business: see Cheryl Investments v Saldanha [1978] 1 WLR 1329. He found that while W carried on some business activities at home, they were not the reasons for his occupation of 4 it. He found, inter alia, that W had become attached to it as a pleasant place to live and that, in deciding as a matter of fact and degree whether business purposes were merely incidental to his residence there, an informed person would have concluded that W was not carrying on his business at the flat. The judge’s inferences were criticised on grounds which included that: in taking into account W’s attachment to the flat, the judge was paying regard to a mere subjective view; and the judge should not have had regard to the opinion of any other person, informed or otherwise, in holding that W was not carrying on business at the flat. M applied for leave to appeal. A business tenancy regime applied under the 1954 Act if property was occupied “for the purposes of a business … or for those and other purposes”: section 23(l).
Held Leave to appeal was refused.
1. With regard to W’s attachment to the flat, it was very difficult to arrive at his aim in occupying it if no view were taken of why he originally took the premises and continued living there.
2. The reaction of the informed or reasonable person was an appropriate test to apply in reaching a decision on what was a matter of fact and degree.
3. In deciding business purposes under section 23, the court had to establish that those purposes were a significant element in the occupation: see Cheryl (supra); that was particularly a question within the trial judge’s ability to decide: see Gurton v Parrot [1991] 1 EGLR 98.
4. Further, the nature of the business involved no advertising or geographical location, but was a highly personal selling of W’s services as an expert in his chosen field.
Timothy Fancourt (instructed by Wilkinsons) appeared for the applicant landlord; Heather Williams (instructed by Bindman & Partners) appeared for the respondent tenant.
