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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Collins v Howard De Walden Estates Ltd.  EWCA Civ 545 (16 April 2003)
Cite as:  EWCA Civ 545
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE HALLGARTEN
London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
| Roberta Hilary Collins
|- and -
Howard de Walden Estates Limited
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Anthony Radevsky (instructed by Lawrence Graham) for the Claimant/Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Aldous:
"s 2 Meaning of "house" and "house and premises", and adjustment of boundary.(1) For purposes of this Part of this Act, "house" includes any building designed or adapted for living in and reasonably so called, notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and
(a) where a building is divided horizontally, the flats or other units into which it is so divided are not separate "houses", though the building as a whole may be; and
(b) where a building is divided vertically the building as a whole is not a "house" though any of the units into which it is divided may be.
(2) References in this Part of this Act to a house do not apply to a house which is not structurally detached and of which a material part lies above or below a part of the structure not comprised in the house.
(5) In relation to the exercise by a tenant of any right conferred by this Part of this Act there shall be treated as not included in the house and premises any part of them which lies above or below other premises (not consisting only of underlying mines or minerals), if
(a) the landlord at the relevant time has an interest in the other premises and, not later than two months after the relevant time, gives to the tenant written notice objecting to the further severance from them of that part of the house and premises; and
(b) either the tenant agrees to the exclusion of that part of the house and premises or the court is satisfied that any hardship or inconvenience likely to result to the tenant from the exclusion, when account is taken of anything that can be done to mitigate its effects and of any undertaking of the landlord to take steps to mitigate them, is outweighed by the difficulties involved in the further severance from the other premises and any hardship or inconvenience likely to result from that severance to persons interested in those premises.
"(a) To use and occupy the demised premises as a single private dwelling house provided that this shall not prevent the flat on the first floor of the part of the premises known as number 12 Devonshire Mews South from being used as a separate self-contained private residential flat in the occupation of one household or family.
(b) As to the part of the ground floor of number 12 Devonshire Mews aforesaid comprising garage accommodation to be used as the garaging of private motorcars ancillary to the use only of that part of the demised premises known as number 11 Devonshire Mews South."
"Not at any time during the said term to underlet any part of the demised premises, (here meaning a portion only and not the whole thereof), but this shall not prevent the subletting of the flat on the first floor of the part of the demised premises known as number 12 Devonshire Mews South, subject always to the provision of sub-clause (23) of this clause and paragraphs (e) and (f) of this sub-clause (24)."
[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]
"34. Such being the relevant principles, can numbers 11 and 12 be reasonably be called a house? In my view they can, and I summarise my reasons as follows:
1. I think that the description of the two properties in the head lease as representing one dwellinghouse is and remains an important, albeit not determinative factor (See Malpas at 110 E to F).
2. I do not attach weight to the circumstance that access to the storeroom or as I have more appropriately considered it, the utility room, and garage on the ground floor of number 12 comprised an important part of the overall facilities enjoyed by those living at number 11. I do not attach weight to the circumstances of access from number 11 to number 12 was and is only to be gained via the patio and storeroom. The distance is small and the storeroom has a strong feel of being part and parcel of number 11 rather than some separate property.
3. The existence of a separate, self-contained flat on the upper floor of number 12 does not in my view derogate from the position. The authorities make it clear that the mere fact that part of the building is in separate occupation does not prevent that building from being called a house.
4. Had the two properties had their facades altered or been painted in the same way as to give the impression of continuity, the position described in the previous sub-paragraph would have been clear, really, beyond all doubt. For my part, while I accept that appearance is a factor which it is appropriate to take into account, it is not one which in the end I feel it is necessary to attach substantial, let alone decisive, weight.
5. While I quite accept that because the two properties retain their separate appearance and numbers, it is possible to refer to them as two houses (cf. Dugan Chapman v Grosvenor Estates  1 EGLR 96), directing myself, as I must, in the light of the judgment in Malekshad, and looking at the entirety of the properties demised with the knowledge of their actual use, I have come to the conclusion that such property viz. numbers 11 and 12 can reasonably be called a house. I have to say, however, that I reach this conclusion with a degree of unease. I am conscious that the approach which I have adopted gives a very wide meaning to the word "house" as compared with "house and premises" in section 1.
35. The above matter was the only issue before me, but prior to the conclusion of the case Mr Radevsky for the claimant, sought leave to amend his application so as, if necessary, to claim that insofar as the claimant was wrong, she might in the alternative seek enfranchisement of number 11 alone, together with the garage and storeroom of number 12, on the basis of those being premises within the meaning of Sections 1(1) and 2(3) of the Act.
36. This question does not, of course, now arise but, had it arisen, I would have allowed leave to amend, subject to further consideration of the issue being adjourned until after the defendant had had the opportunity to raise issues bearing on hardship or inconvenience under Section 2(v) of the Act."
"83. In November 1974 a Dr Gomez acquired the underlease of 27 Weymouth Mews and remained in occupation until shortly before the underlease expired. Her evidence at trial was that during her occupation of 27 Weymouth Mews the doorway that Dr McKenzie had constructed remained locked and was never opened. On the Mews side, she said, the door had no door handle."
"20. The issue which I have described as the issue of structure was capable of being solved more precisely than the issue of user. All that was needed to resolve the issue of structure was a definition which identified the way in which buildings were to be divided up. The definition had to identify the individual units within a building which were to be available for enfranchisement. It was necessary to address two features which are common to almost every building which comprises more than one residence. These are the features by which a building may be divided up into separate units both vertically and horizontally. All that was needed was to set out the rules by which the individual units within buildings with divisions of that kind could be identified. But the issue of user was not capable of the same precise treatment. The best that could be done was identify a test by which a building which was appropriate for enfranchisement as a house occupied by the tenant as his residence could reasonably be distinguished from one which was not.
21. Section 2 of the 1967 Act is not easy to analyse, as it deals with the issues of structure and use in the same subsection. Subsection (1) deals with both use and structure, so it is necessary to pay careful attention to the words used. They must be construed and then applied to the facts precisely in the order in which they are set out. The first part of the subsection addresses the issue of user. It does so by saying that "house" includes any building "designed or adapted for living in and reasonably so called." This instruction is then qualified by the words "notwithstanding that the building is not structurally detached, or was or is not wholly designed or adapted for living in, or is divided horizontally into flats or maisonettes." This is a list of things which are to be disregarded when the issue of user is being addressed. It does not deal with the issue of structure. That issue is dealt with in the second part of the subsection. This part is divided into two separate paragraphs. Paragraph (a) deals with cases where the building is divided horizontally. Paragraph (b) deals with cases where the building is divided vertically. Different rules are set out in each of these two paragraphs. But they have this point in common, that they are both self-contained. There is no instruction that the result of giving effect to these rules must be subjected to a further test which asks whether the building is nevertheless a house "reasonably so called.""
"There is no instruction that the result of giving effect to those rules must be subjected to a further test which asks whether the building is nevertheless a house "reasonably so called"."
"24. I think therefore, with great respect, that Robert Walker LJ was wrong to criticise the judge for asking himself the question "is this one house or two?" He said that the judge set off on the right track, but that he then strayed off it:  EWCA Civ 761;  3 WLR 824, 838C, para 37. In my opinion the Court of Appeal strayed on to the wrong track when they asked themselves whether the building, which on the judge's findings was divided vertically into two units at the point where the extended ground floor and basement of 76 Harley Street adjoin the back wall of 27 Weymouth Mews, could nevertheless be called a "house". This is because section 2(1)(b) states that where a building is divided vertically the building as a whole is not a "house" though any of the units into which it is divided may be."
"108. In my opinion, it would never have been reasonable or natural to call the whole of the 76 Harley Street/27 Weymouth Mews structure a "house". The Mews buildings, 27 Weymouth Mews, was at one time part of the "premises" that would have been subject to enfranchisement with 76 Harley Street, the "house". Once 27 Weymouth Mews had become occupied separately from and otherwise than for the purposes of 76 Harley Street it would, of course, no longer have been part of the "premises" of 76 Harley Street.
109. In my opinion, in agreement with the judge and disagreement with the Court of Appeal, 76 Harley Street and 27 Weymouth Mews were not together a "house ... reasonably so called"."
"110. There is another reason why, in my opinion, the combined property cannot be a "house". If the building comprising both 76 Harley Street and 27 Weymouth Mews is considered as a whole, the division of the building into 76 Harley Street on the one hand and 27 Weymouth Mews on the other hand is a vertical division. As originally built, there was a horizontal division at basement level. But once a part of the basement had been incorporated into 27 Weymouth Mews, there was a vertical division of the building at basement level, as well as a reduced horizontal division. At ground floor level there was originally open space between 76 Harley Street and 27 Weymouth Mews but once the southern ground floor extension of 76 Harley Street had been built, there was a further vertical division of the composite building at the point where the extension met the Mews building. Accordingly, in my opinion, subsection (1)(b) prevents the composite building from being a "house" for 1967 Act purposes."
"46. "House" is defined in section 2 of the Act. The definition has several elements. Taking them in the order in which they appear in the section, a "house" is (strictly speaking includes)
(i) any building which (ii) is designed or adapted for living in and (iii) which may reasonably be called a house (iv) notwithstanding that the building is not structurally detached or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes (subsection (1); but so that (v) (a) where the building is divided horizontally, the flats or other units into which it is divided are not separate houses, though the building as a whole may be; and (vi) (b) where it is divided vertically the building as a whole is not a house though any of the units into which it is divided may be; but so that (vii) it does not include a house which is not structurally detached and of which a material part lies above or below a part of the structure not comprised in the house (subsection (2)).
With the exception of (ii) and (iii), all these elements are concerned with the structure of the building. I will take them in turn.
47. "Any building" is merely a built structure. For the purposes of section 2 of the Act, it need not be structurally detached and may be subdivided into self-contained units. So it may form part of a larger whole, and at the same time may itself be a composite whole formed by separate units. The word is, therefore, not used with any degree of precision. The necessary precision is obtained by other elements of the definition of "house". For the purposes of section 2, the same structure may be regarded as a single building or as several buildings. Thus a terrace of houses may constitute a single building even though each house in the terrace also constitutes a building in itself.
48. Given the degree of imprecision in the concept of a "building", I think that the primary purpose of the requirement that the house should form the whole or part of a building is to exclude other forms of residential accommodation such as caravans or houseboats. No doubt it goes further than this, for I do not see how two separate detached buildings can constitute a single building. But subject to this, I do not think that the question calls for the kind of historical, sociological and architectural investigation which was conducted by the Courts below in the present case. In my opinion No. 76 Harley Street is a building; and so are No. 76 Harley Street and No. 27 Weymouth Mews taken together.
50. "Which may reasonably be called a house." An authoritative explanation of these words was given by Lord Roskill in Tandon v Trustees of Spurgeons Homes  AC 755 at p. 767. He made two particular points of general application which greatly influenced the Court of Appeal in the present case: (1) as long as a building of mixed use can reasonably be called a house, it is within the statutory definition of "house", even though it may also reasonably be called something else; and (2) it is a question of law whether it is reasonable to call a building a house.
51. Earlier in his speech, however, at p.764, Lord Roskill made an equally important point of which the Court of Appeal seem to me to have taken rather less notice. This is that the words "which may reasonably be called a house" are words of limitation. They serve to exclude from the statutory definition of a "house" premises which would otherwise fall within it but which could not reasonably be called a house. They do not operate so as to bring within the statutory definition premises which are outside it merely because they are capable of reasonably being called a house.
52. The point is important because the statutory definition of "house" does not end with this requirement. It continues, not only to bring in premises which might otherwise have been excluded ("notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes") but also to exclude other premises which might otherwise have been included (the individual flats or other units into which a building is divided horizontally and an entire building which is divided vertically). Where these further provisions extend the definition of a "house", the premises must also satisfy the requirement that they should be capable of being reasonably called a house. Where they limit it, however, the premises are not a "house" within the meaning of the Act, and they do not become one even if they could reasonably be so called."
Nothing in that part of Lord Millett's speech suggests that the judge was not entitled to conclude that numbers 11 and 12 were a house reasonably so called.
"54. Where the building is divided vertically. In such a case the building as a whole is not a "house", though any of the units into which it is divided may be. Even if, as I think, the whole Harley Street terrace of which No. 76 forms part is a building, it is not a "house" because it is divided vertically into separate units. On the other hand, any of the units may be a "house". "May be" not "is", because a particular unit may fall outside the definition of "house" for any number of reasons. It may, for example, be a doctor's surgery with no living accommodation, and so not designed or adapted for living in. Or a material part of it may lie above or below another part of the structure. But a building which is divided vertically is not a "house", even though it may reasonably be called a house."
"61. I am bound to say that I find this conclusion a startling one. Whether a building can reasonably be called a house or can only reasonably be called something else is a question of appellation. The present question is not one of appellation but of number. I do not see how the same building can at one and the same time reasonably be called one house and two houses.
62. But there is no need to decide this. In my opinion the Judge asked himself the right question. The "secondary question" whether the two properties were reasonably capable of being called a house did not arise for decision if they were not a "house" at all; and because they comprised a building divided vertically they were not. The Judge was, of course, right to ask himself the "secondary question" in case he was wrong on the first. In my respectful opinion, however, the Court of Appeal fell into error by treating their answer to the secondary question as determinative of the issue in favour of Mr. Malekshad in circumstances when it was conclusively determined against him by the nature of the structural division of the building."
"56. I have already expressed the view that No. 76 Harley Street and No. 27 Weymouth Mews taken together can be regarded as a single building. But Mr. Malekshad's claim to enfranchise both properties depends critically on its not being a building which is "divided vertically", in contradistinction to one which is "divided horizontally". The thinking behind the different treatment of the two cases is tolerably clear. The enfranchisement of part of a building has the effect of separating the freehold titles to different parts of a single structure. This is productive of considerable legal and other difficulties where the properties in different ownership lie one above the other; but not where they lie side by side. So-called "flying freeholds" are a relatively modern innovation and bring with them many problems which need to be resolved. These include but are not confined to problems of support. Who is to bear responsibility for the repair of the roof is another example. Terraces of freehold houses, by contrast, date back at least to the 18th century."
Lord Justice Dyson: