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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 >> Pirabakaran v Patel & Anor  EWCA Civ 685 (26 May 2006)
Cite as:  EWCA Civ 685,  1 WLR 3112,  WLR 3112
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ON APPEAL FROM H.H. JUDGE OPPENHEIMER
BRENTFORD COUNTY COURT
LOWER COURT NOS: 4BF04825, 4BF04646
Strand, London, WC2A 2LL
B e f o r e :
SIR PETER GIBSON
| RASIAH PIRABAKARAN
|- and -
|NAVINCHANDRA MANIBHAI PATEL AND ANOTHER
Mr. Tom Weekes (instructed by Messrs Albin Hunt & Stein, Marylebone) for the Respondents
Hearing date : 3 March 2006
Crown Copyright ©
Lord Justice Wilson:
"Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them."
"Not to use or permit the Demised Premises to be used otherwise than as to the ground floor as a shop for the business of a retail grocers greengrocers and provisions merchant the sale of newspapers periodicals magazines and stationery and the sale of intoxicating liquors of all descriptions for consumption off the Demised Premises AND as to the upper floor for residential accommodation for a single family."
"That if the said rents or any part thereof shall be unpaid for twenty one days after any of the days hereinbefore appointed for payment thereof whether or not the same shall have been lawfully demanded or if or if or if any covenant on the Tenant's part herein contained shall not be performed or observed then and in any of the said cases it shall be lawful for the Landlord or any person or persons duly authorised by the Landlord in its behalf to enter into and upon the Demised Premises or any part thereof in the name of the whole to re-enter the same and to repossess and enjoy without prejudice to any right of action or remedy of the Landlord in respect of any antecedent breach of any of the covenants by the Tenant."
THE ACT OF 1977
"(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but(b) the occupier continues to reside in the premises or part of them,
it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises."
"(1) Subject to the provisions of this Act, [Part II] of this Act applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes."
(a) the premises have been "let as a dwelling";
(b) the tenancy has come to an end; and
(c) the occupier, i.e. anyone lawfully residing in them at the termination of the tenancy, continues to reside in them,
then it is unlawful for the owner to recover possession of them from him otherwise than by proceedings in court. If, however, by another source, the former tenant already enjoys security of tenure or other statutory protection following the termination of his tenancy, he has no need for the protection of s.3 and so is excluded from it on the footing that he has "a statutorily protected tenancy".
"a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises."
The persons protected under ss.2 and 3 are prime examples of persons in the third category of "residential occupier", namely persons occupying premises as a residence by virtue of the restrictions therein upon the right of others to recover possession of them.
THE ORIGINS OF THE PROVISIONS IN THE ACT OF 1977
" this is a proposed new clause, and I think that I had better read out to the House the first sentence of what I have been told about it. This new clause deals with a small and technical lacuna in Clauses 30 and 31. I am perfectly prepared to explain the small but technical lacuna, but it is very dull, and I wonder whether your Lordships will accept that from me. I beg to move."
Insertion of the clause was agreed; nothing more was said.
"LET AS A DWELLING" IN OTHER CONTEXTS
"The house was dwelt in by the defendants and let to them for that purpose. It is in the fullest sense a dwelling-house and none the less so because it is also a public-house. [Counsel for the landlord] contended that the Acts do not apply to houses if let for business purposes. I cannot accept that view. No doubt if the word "dwelling-house" is given its ordinary meaning the Act may seem to include cases not contemplated by the Legislature; but a restricted meaning would exclude many cases which were intended to be included. The object of the Legislature was to include all houses which are occupied as dwelling-houses provided they are of the class ascertained by their value as prescribed by the Act, notwithstanding that they are also used by the tenant for other purposes as well as those of a dwelling-house."
In Maunsell v. Olins  AC 373 Lord Wilberforce observed at 389:
"Everybody knows 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 part (even a substantial part) of which is used for business purposes."
In Wellcome Trust Ltd v. Hamad  QB 368 at 650H this court observed that the line of authority to which Lord Wilberforce there referred began with the Epsom case.
"(ii) 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 office or for business, trade or professional purposes; "
This second proviso to s.12(2) of the Act of 1920, repeated in almost identical terms in s.3(3) of a supplementary enactment, namely the Rent and Mortgage Interest Restrictions Act 1939 ("the Act of 1939"), led to a confident continuation of the line of authority which favoured the generous construction, begun in the Epsom case, of the phrase "let as a dwelling" so as to cover a tenancy for mixed residential and business purposes ("for mixed purposes"). The line continued through, for example, the decisions of this court in Hicks v. Snook (1928) 27 LGR 175, in R v. Brighton and Area Rent Tribunal Ex p. Slaughter  1 QB 446 and in British Land Co. Ltd v. Herbert Silver (Menswear) Ltd  1 QB 530.
"This section deals with the special case of enforcement of the right of re-entry under a lease. The lease has not come to an end before the right is enforced, so that s.32 has no application, but once the eviction has started it cannot be said that the tenant, or anyone claiming under him, occupies under the contract of tenancy so as to bring him within the definition of "residential occupier" in s.30 (5). Special provision is therefore required It is to be observed that the section applies to ["statutorily protected"] tenancies cf. s. 32)"
By the last sentence, Sir Ashley thus put forward the s.8 argument.
"It does not follow that by omitting the [provisions] Parliament produced the opposite result. The effect of the omission is to bring premises, part of which are used for business purposes, within the scope of the Act of 1954. But such premises may still essentially remain a dwelling house."
(a) Parliament thought it necessary by s.8 specifically to exclude a tenancy of an agricultural holding from the ambit of s.3;
(b) if the phrase "let as a dwelling" in s.3 had not included a tenancy of an agricultural holding upon which there was a dwelling-house intended for residential use, the exclusion would have been unnecessary;
(c) thus the phrase in s.3 included such a tenancy;
(d) the phrase bore an identical meaning in all sections of the Act in which it appeared, namely ss.2, 3 and 5;
(e) thus in s.5 the phrase included such a tenancy; and
(f) in that it was common ground that s.8 did not apply to s.5, such a tenancy was not thereby excluded from the ambit of s.5.
" the "premises" are the subject matter of the letting, that is the entire acreage, but they are let as an agricultural holding and not as a dwelling. The subject matter of the letting includes a dwelling but I cannot read the section as if it used the expression "premises which include a dwelling" or "any dwelling house let as a part of premises". The difficulty, which I share, in understanding why Parliament saw the need to make specific reference to agricultural holdings in section 3 of the Act dealing with prohibition of eviction without due process of law, does not lead me to the conclusion that agricultural holdings are included in section 5."
For his part, Judge L.J.:
a) pointed out at 239G that, prior to the Act of 1977, the precursor to s.5 was contained in an Act (the Act of 1957) different from the Act (the Act of 1965) which contained the precursors to ss.3 and 8, with the result that the s.8 argument would not then have been available;
(b) referred at 239H 240C to purportedly comprehensive provisions relating to notices to quit agricultural holdings contained in a statute enacted only four months prior to enactment of the Act of 1977;
(c) concluded at 241 B C that, in construing the phrase "let as a dwelling", it was crucially important to focus on the specific statutory provision in which it was contained;
(d) found at 243D that the tenancy was, as the agreement stated, an agricultural tenancy, as defined by the Act of 1986;
(e) held at 243B that s.5 did not, as it might have done, clearly include agricultural tenancies and should not be treated as if it did so; and
(f) held at 243G that the farmhouses were part of the agricultural holding and that their presence did not mean that the premises were "let as a dwelling".
(a) A tenant should not be at risk of returning home to discover that, unbeknown to him, he and his family have been locked out and are homeless. If they are to be evicted, the eviction should be conducted in an orderly fashion, upon at least some prior notice, by officers subject to court direction.
(b) If there is to be an issue as to whether the landlord is entitled to forfeiture under the terms of the tenancy, it is preferable, particularly in relation to a home, for the court to determine it in advance of eviction rather than in proceedings brought by the tenant for an injunction and damages in the wake of it or in criminal proceedings against the landlord under s.1 of the Act of 1977.
(c) If there is to be an issue as to whether the tenant is entitled to relief against forfeiture pursuant to s.146(2) of the Act of 1925, it is, again, preferable, particularly in relation to a home, for the court to determine it in advance of eviction rather than in its wake.
I see no reason why these considerations should not apply to a tenant for whom the premises represent not only his home but also his place of business.
"There shall be no interference by a public authority with the exercise of this right [under article 8(1)] except such as is in accordance with the law and is necessary in a democratic society for the protection of the rights and freedoms of others."
"The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal "
It was thus held to have been insufficient that there had been court proceedings of a formal character in which the local authority's right to possession had been endorsed; for the adequacy of the reasons behind its election to terminate the applicant's licence had never been established.
Sir Peter Gibson:
"There must be tens of thousands of similar leases where the person running the business lives above the shop".
That must have been as true in 1977 when the Act of 1977 was passed as it was in 1965 when the Act of 1965, containing the predecessor provisions to ss.2 and 3 of the Act of 1977, was passed and I do not doubt that it continues to be true today. Every lease contains a forfeiture clause such as that in clause 6(1) of the lease in the instant case. I share Wilson L.J.'s surprise that the question which has arisen in this case has not previously been answered directly by an authoritative decision on s.2 of the Act of 1977.