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Judgments - Uratemp Ventures Limited v. Collins (Ap)

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    36. The difficult case of Stribling v Halse (1885) 16 QBD 246 was a foretaste of what was to come. A shop assistant had exclusive occupation of a furnished bedroom in a dwelling-house belonging to his employers. The house contained other bedrooms and a dining room in which the residents took their meals in common which were provided by their employers. It was doubted whether a person could be said to occupy a bedroom as his dwelling when he dwelt partly in the bedroom and partly in another room. In the mistaken belief that such doubts had been removed by a decision of the Court of Appeal, the Divisional Court held that the bedrooms were separately occupied as dwelling houses for the purpose of the franchise. The decision was later doubted (see Barnett v Hickmott [1895] 1 QB 691) but only because of the existence of the communal dining room. No doubt was cast on the decision in so far as it involved a finding that a bedroom which lacked cooking facilities was a dwelling. In Barnett v Hickmott a policeman failed to obtain the franchise by virtue of his occupation of a lock-up cubicle in a dormitory, but only because the cubicle was insufficiently partitioned from the rest of the dormitory and the ventilation, atmosphere and lighting were common to all the cubicles. He was not denied the vote because he could neither cook nor eat in his cubicle.

    The Rent Acts.

    37. The Rent Acts adopted a similar formula but varied it slightly from "occupied as a separate dwelling" to "let as a separate dwelling", but nothing seems to have turned on this. The premises to which the Acts applied were necessarily let unfurnished or only sparsely furnished, since they did not apply where a substantial charge was made for the use of furniture. It was established very early that it was the state of things at the date when the proceedings were brought that mattered: Prout v Hunter [1924] 2 KB 736 (a point which the majority judgments in the Court of Appeal in the present case appear to have overlooked) and the use to which the tenant put the premises once he had furnished them was taken to be indicative of their character and the purpose for which they were let. The Housing Acts have extended security of tenure (and the application of the statutory formula) to furnished lettings, but the question still has to be determined as at the date when proceedings are brought, by which time the premises will almost invariably have been furnished whether or not they were originally so let. Where the tenant has not installed cooking facilities of his own, no sensible distinction can be drawn between premises which were originally let unfurnished and premises which were let furnished but without such facilities.

    38. The object of the Rent Acts was to protect people from being evicted from their homes. Their legislative purpose was, therefore, very different from that of the Representation of the People Acts, and it could be dangerous to rely on the Nineteenth century cases particularly in relation to the word "separate"; but there is no reason to be chary of doing so in relation to the word "dwelling". Security of tenure, like the property qualification for the franchise, was given in respect of premises which constituted a person's home.

    39. Over the course of the 20th century much judicial labour was expended on the statutory requirements that the premises must be "let" (so that they must be occupied under a tenancy and not a mere licence) and that they must be let as a "separate" dwelling (that is to say not shared with others). Shared accommodation or facilities presented a special problem, and it is convenient to deal first with the cases where this element was absent.

    "Dwelling".

    40. There is only a handful of reported cases in which a single room has failed to qualify as a "dwelling" for the purposes of the Rent Acts, and in none of them was this because it lacked cooking facilities. In Wright v Howell (1947) 92 SLJ 26 CA the room had neither cooking facilities nor water supply at the date of the letting, though the tenant afterwards installed an electric cooker. After the tenant's wife had a baby, the family slept upstairs in a flat belonging to her parents. Scott LJ said that

    "the word 'dwelling', on its true construction, included all the major activities of life, particularly sleeping, cooking and feeding"

and that as one of those activities, sleeping, was not being carried on there, the room was not a dwelling and the tenancy was not protected. Given that the tenant did not sleep on the premises, the decision is unremarkable; it is not an authority for the proposition that the tenant must also be able to cook there, for at the date when the proceedings were brought he did. The case is simply one where at the relevant time the tenant did not dwell in his own flat, but partly there and partly in his parents-in-law's flat, so that his flat was not a dwelling but only part of a dwelling: (see McCarthy v Preston [1951] NZLR 1091 at pp. 1092-1093). This is how the case was explained by Lord Greene MR in Curl v Angelo [1948] 2 All ER 189, 192, and it is in conformity with Lord Reid's explanation of the cases on shared accommodation in Baker v Turner [1950] AC 401, 437:

    "If a tenant has to share with another person a living room which is not let to him, it is in my view impossible to find anything which is let to him as a separate dwelling. It cannot be the let rooms plus the right to use the other room, because that other room is not let to him at all - he is only a licensee there. And it cannot be the let rooms alone, because his having to share another room shows that the let rooms are only a part of his dwelling place." (Emphasis added).

    41. In Curl v Angelo two rooms were let to the proprietor of an adjoining hotel as additional accommodation for the hotel. They were used mainly for guests but occasionally for the tenant's family or staff. The tenant's claim for protection was rejected on the ground that the premises were not a dwelling. They were not "the home of anybody; they were a mere annexe or overflow of the hotel". But Lord Greene MR made it clear that a dwelling could consist of a single room. He said:, at p 190:

    "It must not be thought for a moment that I am throwing any doubt on the proposition that where there is a letting to a man of one room which is the only place where he moves and has his being, that circumstance will prevent the room being a "dwelling" within the meaning of the Act, but here one has the activities connected with the dwelling of all these people divided between two tenements. Their main activities of living are conducted in the hotel. They go out to sleep in these rooms - sometimes the guests, sometimes the servants, and so on. Where is the 'dwelling'? It seems to me clear that this annexe or accretion to the accommodation of the hotel cannot be regarded as a 'dwelling,' much less as a 'separate dwelling.'"

Lord Greene explained Wright v Howell as another case where the tenant carried on only one of his home activities on the premises which were the subject of the letting while he carried on others in a different tenement altogether.

    42. In Metropolitan Properties Co (FGC) Ltd v Barder [1968] 1 All ER 536 a protected tenant of a flat under a 12 year lease took a quarterly tenancy of a small single room on the opposite side of the corridor for use by an au pair. It was furnished as a bedroom with washbasin. It was held that "this tiny room" was not let as "a dwelling-house". The basis of the decision is not entirely clear, but I have no doubt that it was correct. Even if the room could properly be regarded as the au pair's dwelling, she was not the tenant; and although the tenant was in occupation of the room by his servant it was not his dwelling but only part of his dwelling. Had it been possible to regard the arrangement as a mere extension of the original letting the result might have been different (see Wimbush v Cibulia [1949] 2 KB 564); but its terms showed it to be an entirely distinct letting. Edmund Davies LJ stressed, at p 542, that the decision had no application to a case "where a single room is let as the occupier's place of habitation for all purposes."

    43. None of these cases turned on the absence of cooking facilities. All were cases where, on the facts, the subject-matter of the letting constituted only a part of the tenant's dwelling.

    44. The question whether the landlord qualified as a "residential landlord" for the purpose of section 12 of the Rent Act 1977 by occupying a bed-sitting room without cooking facilities arose in Palmer v McNamara [1991] 1 EGLR 121. The landlord had never learned to cook, and either bought food which he did not need to cook or ready-made take-away meals. It was argued that a room without a cooker could not be described as a dwelling. This was rejected by the Court of Appeal, which observed that the room occupied by the landlord contained everything required to be his dwelling house except a cooker which he did not want. It was his home and therefore his residence. I have no doubt that the case was rightly decided. It did not, of course, turn on the statutory formula or the word "dwelling"; but the decision of the majority of the Court of Appeal in the present case cannot stand with it. If the room was the landlord's residence, it was his dwelling. The decision was explained by Moore-Bick J on the basis that the landlord was in the same position as a tenant of an unfurnished room who has the right to install a cooker if he wishes to do so: the fact that he chooses not to do so cannot affect the nature of the premises themselves. But this will not do. As I have already explained, the question has to be determined at the date of the proceedings, not at the date of the original letting. At the relevant time the premises were furnished but lacked a cooker. Either its absence was fatal to the classification of the premises as a dwelling or it was not.

    The sharing cases.

    45. The supposed requirement that cooking facilities must be available for premises to qualify as a dwelling derives from cases directed to the question whether the tenancy constituted a "separate" dwelling when it included shared accommodation or facilities. The conclusion which was reached was that a right to share living accommodation put the tenancy outside the protection of the Acts, whereas a right to make use of communal facilities such as a w.c. or bathroom did not. For this purpose a kitchen was classified as a living room.

    46. The leading case was Neale v Del Soto [1945] 1 KB 144. The tenant took a tenancy of two rooms together with the use, in common with the landlord, of the garage, kitchen, bathroom, w.c., coal house and conservatory. This was held not to be a letting of the two rooms as a separate dwelling, but a sharing of the house.

    47.     Neale v Del Soto was explained and distinguished in Cole v Harris [1945] 1 KB 474 where the premises consisted of a bedroom, living room and kitchen on the first floor of a dwelling-house together with the use of a bathroom and w.c. in common with the landlord and the tenant of the second floor. The county court judge had understood Neale v Del Soto to lay down a rule of law that "the sharing of any part of the accommodation included in the tenancy contract which is essential to the conception of a dwelling-house, according to ideas held at the present day, prevents the letting from being a letting of part of a house as a separate dwelling." See p 478. This test was accepted by Lawrence LJ in the Court of Appeal but was firmly rejected by the majority, who said that Neale v Del Soto laid down no such principle. They drew the line in a different place, between the sharing of living accommodation, which took the case outside the Acts, and the use of shared facilities such as a bathroom and w.c., which did not. They agreed that a w.c. was an essential part of the accommodation according to current modes of living, but it was not a living room. Mackinnon LJ set out the test, at p. 479:

    "It is, I think, difficult to formulate any principle of law which separates what I have called the contrasted conceptions of (1) a demise of part of a house as a separate dwelling, and (2) an agreement to share the use and occupation of a house. But I think Morton LJ provides the best formula by saying that to create (1.) there must be an agreement by which the occupier has the exclusive use of the essential living rooms of a separate dwelling-house. After all, a dwelling-house is that in which a person dwells or lives, and it seems reasonable that a separate dwelling should be one containing essential living rooms. A w.c. may be essential in modern days, but I do not think it is a living room, whereas a kitchen, I think, is". (original emphasis).

This provides no support for the contention that the availability of cooking facilities is an essential part of the concept of a dwelling-house. Both the kitchen and the w.c. were essential to ordinary living, but the one formed part of the living accommodation and the other did not. Mackinnon LJ emphasised the word "living," not the word "essential". Morton LJ did not even use the word "essential". He said, at p 485:

    "I think that the true test, where the tenant has the exclusive use of some rooms and shares certain accommodation with others, is as follows: there is a letting of part of a house as a separate dwelling, within the meaning of the relevant Acts if, and only if, the accommodation which is shared with others does not comprise any of the rooms which may fairly be described as 'living rooms' or 'dwelling rooms.' To my mind a kitchen is fairly described as a 'living room,' and thus nobody who shares a kitchen can be said to be tenant of a part of a house let as a separate dwelling. In many households the kitchen is the principal living room, where the occupants spend the greater part of the day. Very often it is the warmest part of the house and the family tend to congregate there for that reason. On the other hand, both the bathroom and the w.c. are rooms which are only visited on occasions for a specific purpose, and I think they may fairly be classed with such a room as a box-room, though no doubt it is not visited so often".

This explains why the kitchen was classified as a living room. It was not because it afforded the tenant the ability to cook his meals there, but because it was one of the rooms in which he could fairly be said to live. A kitchenette measuring seven feet by six feet and containing inter alia a kitchen table was held to be a living room in Winters v Dance [1949] LJR 165: but this is because it was treated as being merely a small kitchen. In Marsh Ltd v Cooper [1969] 1 WLR 803 an even smaller room, probably no more than an alcove, which contained no furniture and in which it was impossible to do anything except cook and wash up (the tenant did not eat there), was held not to be a living room.

    48. These decisions lost much of their importance after the passing of section 8 of the Landlord and Tenant (Rent Control) Act 1949. Henceforth the sharing of accommodation did not preclude the application of the Rent Acts unless it was shared with the landlord. The distinction was the key to the legislative policy which lay behind the requirement that the dwelling be "separate". As later cases explained, the right of a tenant to share his living accommodation was such an invasion of the landlord's privacy that Parliament cannot be taken to have intended that the tenant should have security of tenure. This was not so in the case of a right to share the use of a bathroom or w.c.

    49. Not every right to make use of the facilities of the kitchen was sufficient to take the case out of the Rent Acts. In Hayward v Marshall [1952] 2 QB 89 the tenant took a letting of three unfurnished rooms together with a right to draw water in the kitchen and once a week to use the gas stove in the kitchen to boil washing. These limited rights did not amount to a right to use the kitchen as part of the living accommodation provided by the tenancy, and the tenancy was held to be protected. Unfortunately in the course of their judgments both Jenkins LJ and Sir Raymond Evershed MR repeated the expression "essential living accommodation" (without emphasising the word "living"), and this became something of a mantra in later cases. Sir Raymond Evershed MR said, at p 99:

    "The distinction rests rather upon the view that the ordinary uses and purposes of a kitchen are essential manifestations of living or residence, so that if a tenant of rooms has to rely upon some licence for the exercise of those essential manifestations, he is not, as I have said, the tenant of a separate dwelling".

This comes perilously close to reviving the test which was rejected in Cole v Harris. Taken out of context and divorced from the reasoning in Cole v Harris, the use of the word "essential" is potentially misleading. The cases did not decide that a kitchen is an essential part of a dwelling, so that premises which lack cooking facilities are not a dwelling. What they decided was that the essential feature of a dwelling is that it contains living accommodation, and that every room which forms part of the tenant's living accommodation, including the kitchen if there is one, forms part of his dwelling. It is fallacious to reason that, because a kitchen is a living room and therefore part of any dwelling which possesses one, premises which do not possess a kitchen are not a dwelling. Substitute the word "sitting-room" for "kitchen" and the fallacy is exposed.

    50. I think that the word "essential" is best omitted in this context. In summarising the result of the cases in Baker v Turner, none of the members of your Lordships' House found it necessary to use it to qualify the words "living rooms" or "living accommodation." Lord Porter summarised the result of the decisions, at p 414:

    "(1.) A portion of a house which is let by a landlord to a tenant, even if in itself separate, ceases to be a separate dwelling or to be protected by the Acts if the terms of the letting contain a provision that the tenant shall have the right of using a living room belonging to the landlord: Neale v Del Soto [1945] KB 144 (2) To take away the protection of the Acts, the room over which rights are given must be a living room: a bathroom, lavatory or cupboard will not avail, but for this purpose a kitchen is a living room: see Cole v Harris [1945] KB 474."

Your Lordships were more forthright in Goodrich v Paisner [1957] AC 65. Lord Morton of Henryton considered the use of the word "essential" in the present context to be "not particularly appropriate"; while Lord Radcliffe regarded it as a gloss on the statute which either begged the question or confused the issue (see pp 84, 91). Lord Radcliffe could see nothing more satisfying in the definition which had been offered in the course of argument: "a living room is a room wherein you cook, eat, sleep and put your feet on the fender." As he observed: "Why ever should courts of law tie themselves down in this way?" He would have been astonished at the idea that a room or set of rooms could not constitute a dwelling unless they possessed facilities for cooking.

    51. The House confirmed the test laid down by the majority of the Court of Appeal in Cole v Harris in the face of an attempt to revive the test which had been adopted by the county court judge and Lawrence LJ in that case. It was argued that the question should be: "Do the rooms so let in fact contain the essentials of a separate dwelling, or is what is let a separate dwelling only if you include with it the other rights or conveniences which the tenancy agreement confers?" This was once again firmly rejected: see Lord Morton at p 85 (dissenting but not on this point).

    52. In Haywood v Marshall [1952] 2 QB 89 counsel had suggested that there might be a distinction between a concurrent sharing and a consecutive sharing, only the former being sufficient to take the tenancy out of the protection of the Rent Acts. This idea was eventually taken up in Goodrich v Paisner, where the tenant's right to have the occasional use of a bedroom in common with the landlord was held not to exclude the application of the Rent Acts. It was assumed that the tenancy agreement did not contemplate simultaneous user; there would have had to be some further arrangement by which there would be separate user at successive times. On this footing, there was not such a sharing as would involve the invasion by the one party of the privacy of the other sufficient to exclude the application of the Rent Acts.

    53. So I can come to Westminster City Council v Clarke [1992] 2 AC 288. The case concerned a hostel with 31 rooms, each with a bed and limited cooking facilities. Accommodation was made available to vulnerable persons by the local authority in the discharge of its social responsibilities. Mr Clarke occupied one of the rooms as his only home. The question for decision was whether he had exclusive possession of the room. If he did, he was a secure tenant. On the facts the House held that none of the occupants had exclusive possession of his room. The restrictions placed on their use of the rooms, the facts that they were not entitled to any particular room and might be required to share a room, and above all the fact that the grant of exclusive possession would be inconsistent with the social purpose for which the accommodation was provided, all pointed to this conclusion.

    54. Lord Templeman gave the only reasoned speech. It is clear that the passage which I have cited and on which the majority of the Court of Appeal relied in the present case is not part of his reasoning. It is certainly not authority for the proposition that a room is not a dwelling in the absence of cooking facilities. In the first place, even a clear statement to that effect would have been obiter, since the room in question possessed them. In the second place, this was not the issue: the question was whether Mr Clarke had exclusive possession of his room, not whether it was a dwelling. In the third place, the authorities cited (Neale v Del Soto, Cole v Harris, and Goodrich v Paisner) lay down no such principle. All are cases of shared accommodation which do not depend on the meaning of the word "dwelling"; and the two last-named are entirely inconsistent with the proposition, which would seek to revive the test expressly rejected in each of them.

    55. In Parkins v Westminster City Council [1998] 1 EGLR 22 CA the tenant occupied a bedroom and shared the use of a common room, kitchen, bathroom and separate w.c. Chadwick LJ described the tenant as being faced with an unanswerable dilemma. The premises as a whole were not let as a separate dwelling, since while they provided cooking facilities the tenant did not have exclusive possession of them; nor was the bedroom alone let as a separate dwelling, since while he did have exclusive possession of the room, it did not provide cooking facilities. Whether the correct view was that the tenant was entitled to occupy the whole of the premises or only the bedroom, there was no letting of a separate dwelling.

    56. I have no doubt that the decision was correct, but the distinction which Chadwick LJ drew is an analytical not a factual one. The facts were capable of only one interpretation; the tenant was entitled to exclusive possession of the bedroom and the shared use of two living rooms and other facilities. The so-called dilemma is real enough, but is not that depicted by Chadwick LJ. It was described by Lord Reid in Baker v Turner [1950] AC 401 and does not depend on the presence or absence of cooking facilities. The premises as a whole were not a separate dwelling because the tenant did not have exclusive possession of them, and the bedroom alone was not the tenant's dwelling but only part of it. The absence of cooking facilities in part of the house of which the tenant had exclusive possession was not material.

    57. My Lords, in Westminster City Council v Clarke [1992] 2 AC 288 Lord Templeman was merely summarising the result of the earlier cases. It was natural, but unfortunate, that in doing so he repeated, at 299, the expression "essential living rooms", an expression which, as I have already explained, is misleading when taken out of its original context. In agreeing with him, the other members of the House cannot have intended to replace the statutory language by a rigid test which makes the availability of cooking facilities an essential precondition for security of tenure. This would place a gloss on the statute which is not justified by the language or purpose of the statute or the decided cases; and once again revive the heresy, twice previously rejected, that a room or set of rooms must possess "all the features essential to the conception of a dwelling house" in order to attract security of tenure. Moreover such a conclusion would be productive of great difficulties in future cases. It would be necessary to consider just what is sufficient to constitute "cooking facilities". The Victorian bedroom possessed an open grate; the modern one has a power point. What more is required? And why should even this much be necessary to attract security of tenure? The legislative purpose of the Rent and Housing Acts is to protect people in the occupation of their homes, not to encourage them to cook their own meals.

    58. In my opinion the position is relatively straightforward. The first step is to identify the subject-matter of the tenancy agreement. If this is a house or part of a house of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date when the proceedings were brought, it was the tenant's home. If so, it was his dwelling. (He must also occupy it as his only or principal home, but that is a separate requirement). If the tenancy agreement grants, in addition, the right to the shared use of other rooms, the question is whether the room or rooms of which he has exclusive possession are his dwelling place or only part of it. This depends on the nature and extent of the right and the character of the other rooms. The right to occupy a living room in common with and at the same time as the landlord is such an invasion of his privacy that Parliament cannot be taken to have intended that the tenant should enjoy security of tenure. For this purpose a kitchen is a living room, at least if it is possible to occupy it and not merely cook and wash up in it; so that a right to occupy a kitchen (as distinct from a right to make some limited use of its facilities) in common with the landlord will take the tenancy out of the Acts. The presence or absence of cooking facilities in the part of the premises of which the tenant has exclusive occupation is not relevant.

Conclusion.

    59. In my opinion the appeal succeeds.

    60. After leave was granted to bring the present appeal, and with the agreement of the respondents, Mr Collins vacated Room 403 and moved to another room in their hotel. Accordingly there is no longer any lis between the parties and no remaining issue to be remitted to the county Court for decision. On 25 September 2000 the respondents notified the judicial office that they did not intend to take any part in Mr Collins' appeal to the House, and their Lordships are grateful to the amicus curiae for his careful and helpful argument.

 
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