Cases - Day v Hosebay Ltd; Howard de Walden Estates Ltd v Lexgorge Ltd
Record details
- Name
- 1967 Act
- Date
- [2010]
- Citation
- EWCA Civ 748
- Legislation
- Keywords
- What is ‘a house’ – original purpose of building
- Summary
-
In this conjoined appeal, the properties had been built as large single dwellings and were let on long leases. However, they were currently being used for business purposes as ‘short term accommodation for tourists and other visitors to London’.
The Court of Appeal held that each property was a ‘house’ within the meaning of section 2(1) of the 1967 Act so that the tenants could enfranchise, even though they were exclusively used for business purposes. The issues were as follows.
In the Hosebay case the 3 properties (in South Kensington) were each originally constructed, and first occupied, as large houses. The lease stipulated that each property be used only as a number of residential ‘flatlets’. It was assumed that therefore that each house had been converted from a house in single occupation into a house suitable for occupation by several households. At the time that the notice claiming the right to enfranchise was served each house was divided into rooms with self-catering facilities used as short term holiday accommodation.
Lord Neuberger stressed that it was necessary to reach an objective assessment of the physical changes to the building. Furnishings and furniture are irrelevant. The subjective intention of the person responsible for the works will rarely be relevant in judging whether the property has been adapted for living in: ‘one is concerned with how the building was adapted, not why it was adapted’. The actual or intended use immediately after the works could only be relevant to the limited extent that if the building was used for living in immediately after the works were carried out it might help to undermine an argument that the works did not result in the property being adapted for living in.
The actual use of the property at the date of the notice was likely to be irrelevant. This point was neatly illustrated by the facts of the case. The landlord argued that the use of the units within the property as short term holiday accommodation meant that it was not being used for ‘living in’. Lord Neuberger assumed that was true, without deciding the point, but pointed out that this was irrelevant to the question of whether the works adapted the property for living in. As Moore-Bick LJ pointed out, in argument, the rooms were laid out in a way ‘entirely appropriate for letting to students on 3-year degree courses’.
In view of the decision over what is a ‘house ... reasonably so called’ the landlord’s best argument in every case where a house is being used for non-residential purposes is likely to be that the works of adaptation have resulted in the premises no longer being adapted for living in. The actual use at the time may not be a good guide to whether the premises have been so adapted. This case illustrates that point.