COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Knight QC
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE NEUBERGER
| PHAIK SEANG TAN
KIT YENG TAN
|- and -
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Mr Joshua Swirsky (instructed by Messrs Newman Law) for the Respondents
Crown Copyright ©
Lord Justice Neuberger :
"not to use or permit to be used the premises or any part thereof for any purpose other than that described in the second schedule nor for any illegal or immoral purpose nor in such a manner as to cause a nuisance or annoyance… and nor to allow the premises to be used for sale by auction or for the sale of beer, wine, cider or spirits…".
The purpose described in the second schedule was use as a retailer and repairer of televisions and radios.
The current relevant statutory provisions
"A tenancy under which a dwelling house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act."
"A tenancy shall not be a regulated tenancy if it is a tenancy to which [the 1954 Act] applies (but this provision is without prejudice to the application of any other provision of this Act to a sub-tenancy of any part of the premises comprised in such a tenancy)".
The arguments in outline
The main issue: were the premises "let as a … dwelling"?
The statutory and case law history
"The object of the legislature was to include all houses which were occupied as dwelling houses… irrespective of whether the premises were also used for some other purpose. They came within the statute, although part of the premises might be used for other purposes."
"The application of this Act to any house or part of a house shall not be excluded by reason only that part of the premises is used as a shop or an office or for business, trade, or professional purposes".
"In determining whether a house or part of a house is 'let as a dwelling' within the meaning of the Rent Restriction Acts, it is necessary to look at the purpose of the letting. If the lease contains an express provision as to the purpose of the letting, it is not necessary to look further. But, if there is no express provision, it is open to the court to look at the circumstances of the letting. If the house is constructed for use as a dwelling-house, it is reasonable to infer the purpose was to let it as a dwelling. But if, on the other hand, it is constructed for the purpose of being used as a lock-up shop, the reasonable inference is that it was let for business purposes. If the position were neutral, then it would be proper to look at the actual user. It is not a question of implied terms. It is a question of the purpose for which the premises were let."
"So what should "premises" be taken to mean? One view, the narrowest view, would be that it simply means "dwelling-houses."... A less narrow view would be to say that "premises" includes not only dwelling-houses in the normal popular sense, but premises, which, for the purposes of the Rent Act, are treated as dwelling-houses. Everybody knows, and the draftsman must be taken to have known, that protection under the Rent Acts is given not merely to single, identifiable, pure dwelling-houses or dwelling units, but also to units of a mixed character - houses let with a garden or a yard or a garage or a paddock, houses part (even a substantial part) of which is used for business purposes."
This latter meaning is the one which he, Lord Reid and Lord Cross of Chelsea adopted in that case.
"[I]t certainly strikes me as a most remarkable conclusion if a tenant, by simply ceasing to carry on his business …, could then say: "I am now in a position that I have the shop and all the premises subject to the Rent Restriction Acts; we have moved under that umbrella, and you, the landlord, can whistle for possession." He might indeed, if he was so minded, leave the shop to rot and simply confine himself to his upstairs premises.
The corollary, it seems to me… is that the tenant could stop, start, stop, start, as long as he liked, juggling between the two Acts of Parliament."
"[W]e must test the question whether property demised by a superior tenancy constitutes "premises" by asking whether it is a dwelling house within the extended meaning indicated by this court in the Epsom Grandstand case… and thereafter perpetuated in the cases to which we have referred, albeit reinforced by statute from time to time in the form of the provisos."
"In the Wellcome Trust case, by one valuable judgment, this court explained that, in accordance with [the] line of authority [beginning with the Epsom Grandstand case], the premises had been let to the tenant 'as a dwelling' and that accordingly the defendant enjoyed protection against the claimant under the Rent Act 1977."
A preliminary issue
The subsidiary point: did the character of the letting change?
Lord Justice Thomas:
Lord Justice Ward: