England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(Mr Recorder Hurst)

		Royal Courts of Justice Strand London WC2 Thursday 24 October 2002

1. LORD JUSTICE CHADWICK: I will ask Lord Justice Longmore to give the first judgment.
2. LORD JUSTICE LONGMORE: This appeal turns on the question whether a tenancy granted by the defendant landlord, Mr Peter McMahon, to the claimant tenant, Miss Gabriella Sumeghova, was, for the purposes of section 3A of the Protection from Eviction Act 1997, an excluded tenancy.
3. Section 3A(2) provides:

"A tenancy or licence is excluded if -

(a)under its terms the occupier shares any accommodation with the landlord or licensor; and

(b)immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part."

4. So the question that arose in the County Court, and arises before us, is whether the tenancy granted by Mr McMahon to Miss Sumeghova in April 1998 was an excluded tenancy because the accommodation at the relevant premises, No 70 Warren Road, Cricklewood, London NW2, was shared with Mr McMahon at the time both of the granting of the tenancy and the termination of the tenancy and occupied by him as "his only or principal home".
5. The facts found (either expressly or by necessary implication) from the evidence of witnesses which the Recorder found credible were that:

(1) Mr McMahon granted a tenancy of a room and common facilities to Miss Sumeghova at No 70 Warren Road in April 1998;

(2) on 28 August 1998 Mr McMahon informed Miss Sumeghova that he needed the room as from 9 September 1998 and that that constituted notice to quit;

(3) Miss Sumeghova continued to reside in the premises after 9 September 1998;

(4) on 18 September 1998 Mr McMahon evicted Miss Sumeghova by putting all her belongings on the pavement and refusing to let her come back in;

(5) No 72 Warren Road (next door to No 70), where Mr McMahon lived with his wife until their divorce in 1987, had been divided into two flats, probably in the course of 1998, the upper flat for his ex-wife and the other ground floor flat for his then unmarried son and daughter.

(6) both in April and September 1998 Mr McMahon used two rooms at No 70, one as a bedroom and the other as a sitting room;

(7) he spent much of his time at No 72, where his son and daughter lived until their respective marriages, the son getting married in June 1998 and departing and his daughter getting married in October 1998 and then departing;

(8) Mr McMahon's use of the rooms in No 70 was a "temporary arrangement" until his children at No 72 got married and left.

6. The Recorder concluded on those facts that Mr McMahon's principal residence was in fact No 72, so that the tenancy was not an excluded tenancy under the 1977 Act.
7. The Recorder made no specific finding as to when Mr McMahon first started sleeping in No 70, but what he called the "temporary arrangement" must on any view have begun somewhere in 1988 and continued until some time in 1998, a period of about ten years. The Recorder must be taken to have found that, however long that temporary arrangement may have lasted, Mr McMahon intended to move back into No 72 and that made it a "temporary arrangement". In September 1998 Mr McMahon knew that his daughter was going to get married and leave in October 1998, so that his intention to return to No 72 was then imminent.
8. The statute requires the question of occupation by the landlord of the premises let "as his only or principal home" to be answered at the time of the beginning and the end of the tenancy. Mr McMahon was, on the findings which I have set out above, in my view using No 70 as his only or, at least, his principal home on those dates because he slept there and had a sitting room there. The fact that he was shortly going to revert to No 72 as his only or principal home a month later, and knew that he was going to do so, does not to my mind mean that as at 9 September 1998, let alone in April 1998, he was not using No 70 as his only or principal home. The arrangement may have been temporary in the sense that Mr McMahon always knew a time would come when he would be moving back to No 72, but, before he actually did so, his home - for my part, I would say his only home, but certainly his principal home - was at No 70 for the purposes of the Protection from Eviction Act.
9. Miss Deschampsneufs has sought to support the decision of the Recorder, even if the court were of the view that his reliance on the fact of the arrangement being temporary could not be upheld. She points to the fact that her client's evidence was not only accepted on the question whether Mr McMahon slept at No 70, but that there is no reason to suppose her other evidence was not accepted. She points to evidence that Mr McMahon conducted his business at No 72 and that his address on the electoral register was never changed. She accepts that there is no evidence before the court that Mr McMahon ever slept at No 72 between the time of his divorce in 1987 and his daughter leaving No 72 in 1998, but she submits that the place where a person sleeps is irrelevant on the question whether that place is his only or principal home.
10. I find that a remarkable submission. It seems to me that a place where a person sleeps is of the most enormous importance in determining whether that is his only or principal home. Circumstances might arise where that might not be decisive, but on any view it is a matter which is going to influence a court very considerably.
11. Having rejected the reasoning of the Recorder in relation to the temporary arrangement on which he relies, it is nevertheless necessary for the court to consider whether, on the evidence overall, No 70 was Mr McMahon's only or principal home at the relevant times in April and September 1998. For my part, on the facts that I have recited, it seems to me that, with all due deference to the Recorder, No 70 was his only or, at any rate, principal home on those relevant dates and that the tenancy was therefore an excluded tenancy.
12. I would accordingly allow this appeal.
13. LORD JUSTICE CHADWICK: The question for the Recorder was whether the appellant, Mr Peter McMahon, occupied part of No 70 Warren Road as his only or principal home on the relevant dates in April and September 1998.
14. The Recorder appears to have accepted as credible the evidence of Mr McMahon, Mr Patrick Rafferty and Mr John Morrison. The effect of that evidence was that the next door property, 72 Warren Road, had been the matrimonial home of Mr McMahon and his former wife until June 1987; but that, on his divorce in that year, No 72 was converted into two flats. The top flat was occupied thereafter by his former wife and a daughter. The lower flat was occupied by his son and another daughter. The effect of what had happened was that, after the conversion, there were two distinct premises at No 72 Warren Road. Neither of those premises could be said to have been occupied as a home by Mr McMahon prior to June 1987.
15. It is plain that he never occupied the top floor flat at No 72 Warren Road after the conversion. Indeed, it was sold by his former wife in 1990 and was not thereafter occupied by any member of the family. The question is whether he occupied the ground floor flat as a home at any stage after the conversion.
16. The evidence showed that he had purchased No 70 Warren Road following his divorce; and that initially he shared the occupation of that property with two friends. He had a bedroom there, and another room. He slept in the bedroom at No 70 Warren Road and used the other room as a sitting room. But he took his meals with his son and daughter in the ground floor flat at No 72. There is no evidence that he ever slept in the ground floor flat at No 72. It was occupied by his son and daughter; and there was no room for him there.
17. The Recorder ought to have asked himself whether the nature of Mr McMahon's visits to No 72 after 1987 were such as to constitute the ground floor flat at No 72 his home at all. The Recorder appears to have taken the view that the ground floor of No 72 was to be regarded as a home because Mr McMahon intended to move into those premises after his son and daughter had married; as eventually they did in the course of 1998. But until he did move into the ground floor flat at No 72 - following the marriage of his daughter in October 1998 - there is nothing in the evidence to suggest that he was an occupier of that property at all; let alone that he occupied it as a home.
18. In those circumstances, as it seems to me, the only finding which the Recorder could properly make on the evidence before him was that No 70 Warren Road was Mr McMahon's only home during the period from June 1987 to October 1998. The Recorder did not address the evidence and his finding cannot be sustained. I agree that the appeal must be allowed.

Order:appeal allowed and para 2(ii) and (iii) of order below set aside; appellant to continue to pay off outstanding damages (agreed at £530 inclusive of interest) at £20 a week; order for costs below set aside; no order for costs here, save detailed public funded assessment.