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- LORDS
- LORD WILBERFORCELORD DIPLOCK<LORD SALMONLORD FRASER OF TULLYBELTONLORD SCARMAN
- LORD WILBERFORCE
- LORDS,
- LORD WILBERFORCE THIS APPEAL ARISES UNDER CASE 10 OF PART II OF SCHEDULE 3 TO THE RENT ACT 1968, WHICH READS AS FOLLOWS:
- LORD GAVE NOTICE IN WRITING TO THE TENANT THAT POSSESSION MIGHT BE RECOVERED UNDER THIS CASE, AND (B) THE DWELLING HOUSE HAS NOT, SINCE 8TH DECEMBER 1965, BEEN LET BY THE OWNER-OCCUPIER ON A PROTECTED TENANCY WITH RESPECT TO WHICH THE CONDITION MENTIONED IN PARAGRAPH (A) ABOVE WAS NOT SATISFIED, AND (C) THE COURT IS SATISFIED THAT THE DWELLING-HOUSE IS REQUIRED AS A RESIDENCE FOR THE OWNER-OCCUPIER OR ANY MEMBER OF HIS FAMILY WHO RESIDED WITH THE OWNER-OCCUPIER WHEN HE LAST OCCUPIED THE DWELLING- HOUSE AS A RESIDENCE."
- LORD (SIC) MAY RECOVER POSSESSION OF THE PREMISES UNDER THE PROVISIONS OF CASE 10 (SUPRA).
- LORDSHIPS, HAVE OFTEN PROTESTED AGAINST THE PRACTICE OF ALLOWING PRELIMINARY POINTS TO BE TAKEN, SINCE THIS COURSE FREQUENTLY ADDS TO THE DIFFICULTIES OF COURTS OF APPEAL AND TENDS TO INCREASE THE COST AND TIME OF LEGAL PROCEEDINGS. IF THIS PRACTICE CANNOT BE CONFINED TO CASES WHERE THE FACTS ARE COMPLICATED AND THE LEGAL ISSUE SHORT AND EASILY DECIDED, CASES OUTSIDE THIS GUIDING PRINCIPLE SHOULD AT LEAST BE EXCEPTIONAL
- LORDS, THE LEGAL ISSUE IN THE PRESENT CASE IS NOT AN EASY ONE. CASE 10, AND SECTION 10 OF THE 1968 ACT UPON WHICH IT IS BASED, SAY NOTHING ABOUT JOINT OWNERS, OR JOINT OCCUPIERS. TO READ, OR NOT TO READ, THE SINGULAR EXPRESSIONS ("PERSON", "LANDLORD") AS INCLUDING THE PLURAL, GIVES RISE TO DIFFICULTIES, AS THE JUDGMENTS BELOW WELL DEMONSTRATE. IN MY OPINION OUR TASK MUST BE TO ATTRIBUTE THAT REASONABLY ADMISSIBLE MEANING TO THE LANGUAGE WHICH WILL BEST CARRY OUT WHAT APPEARS TO BE THE LEGISLATIVE INTENTION.
- LORDS, I PROPOSE TO DO LITTLE MORE THAN TO SAY THAT, HAVING TO THE BEST OF MY ABILITY COMPARED THE WEIGHT OF THESE RIVAL ARGUMENTS, AND HAVING CAREFULLY CONSIDERED MISS WHITEMAN'S PRINTED CASE, I HAVE COME TO THE CONCLUSION THAT ON BALANCE, THE JUDGMENT OF EVELEIGH L.J. IS TO BE PREFERRED. THE ARGUMENTS IN ITS FAVOUR ARE SO CLEARLY STATED IN THE LORD JUSTICE'S JUDGMENT THAT NOTHING WOULD BE GAINED, AND SOMETHING MIGHT BE LOST, BY MY RESTATING THEM IN MY OWN LANGUAGE. I WILL ONLY ADD TWO OBSERVATIONS.
- LORD. BUT CASE 10, AND THE POLICY BEHIND IT, IS NOT, IF I MAY PERSONALISE, INTERESTED IN THE LANDLORD: HE IS NOT, AS SUCH, THE KEY FIGURE: THAT IS THE "OWNER-OCCUPIER". THIS CONSIDERATION, TO MY MIND, PROVIDES JUSTIFICATION FOR AVOIDING A STRICT INTERPRETATION OF THE WORDS "LET IT ON A REGULATED TENANCY"�THE WORDS WHICH MAINLY, IF NOT WHOLLY, SUPPORT THE ARGUMENT THAT ONE OF TWO OR MORE JOINT OWNERS CANNOT SATISFY THE CASE UNLESS THEY BOTH ALSO REQUIRE TO RESIDE IN THE HOUSE. I FIND IT THEREFORE POSSIBLE TO SAY THAT MRS. TILLING, BEING AT THE TIME THE OCCUPIER, WHEN SHE DECIDED TO GO TO LIVE ELSEWHERE FOR A TIME, LET HER HOUSE ON A REGULATED TENANCY, EVEN THOUGH, FOR THE LETTING TO BE EFFECTIVE, MISS DOSSETT HAD TO JOIN IN. THIS INTERPRETATION MIGHT, TO A CONVEYANCER, APPEAR LOOSE, BUT IS ONE WHICH MIGHT EASILY APPEAR IN COMMON PARLANCE. FOR THE REASONS I HAVE GIVEN I DO NOT THINK THAT THE STRICT CONVEYANCING MEANING IS INTENDED TO BE IMPOSED.
- LORD FOR OCCUPATION AS A RESIDENCE FOR (A) HIMSELF ..." HERE THERE IS AN IDENTITY BETWEEN THE PERSON WHO HAS LET THE HOUSE AND THE PERSON WHO REQUIRES IT. THERE MUST THEN BE GREAT STRENGTH IN THE ARGUMENT THAT IF FOR ONE PURPOSE THE PLURAL IS DEEMED TO BE INCLUDED IN THE SINGULAR, SO IT MUST FOR THE OTHER�PLURAL LANDLORDS MUST REQUIRE THE HOUSE FOR THEMSELVES, NOT FOR ONE OF THEM. THIS WAS THE ARGUMENT ACCEPTED BY THE COURT OF APPEAL IN MCINTYRE'S CASE. BUT ASSUMING THE CORRECTNESS OF THIS (AND I AGREE THAT THE QUESTION REMAINS OPEN IN THIS HOUSE), THE ARGUMENT UNDER CASE 10 IS DIFFERENT. THERE IS NO IMPOSED IDENTITY BETWEEN OCCUPIER AND LANDLORD: THERE MAY BE A PLURALITY OF LANDLORDS, BUT ONLY ONE OCCUPIER, AND IT MAY BE POSSIBLE TO SAY THAT ONE OF THESE LANDLORDS HAS LET. I FIND THEREFORE NO NECESSITY, OR INDEED ATTRACTION, IN FOLLOWING THE EARLIER CASE.
- LORD DIPLOCK
- LORDS,
- LORD WILBERFORCE. FOR THE REASONS THAT HE GIVES I AGREE THAT THE APPEAL SHOULD BE ALLOWED.
- LORD SALMON
- LORDS,
- LORD MAY RECOVER POSSESSION OF THE PREMISES UNDER THE PROVISIONS OF CASE 10 OF PART II OF SCHEDULE 3 TO THE RENT ACT 1968.
- LORDS AND BENEATH IT THERE WAS AN ACKNOWLEDGMENT OF ITS RECEIPT SIGNED BY MISS WHITEMAN. MISS WHITEMAN HOWEVER FAILED TO DELIVER UP POSSESSION OF THE COTTAGE AT THE EXPIRATION OF THE TWO YEAR TERM AND STILL CONTINUES TO RESIDE THERE. ON 4TH MARCH 1977 MRS. TILLING AND MISS DOSSETT BEGAN PROCEEDINGS IN THE CANTERBURY COUNTY COURT AGAINST MISS WHITEMAN FOR POSSESSION OF THE COTTAGE AND MESNE PROFITS. PARAGRAPH 4 OF PARTICULARS OF CLAIM STATED THAT THE COTTAGE WHICH WAS JOINTLY OWNED BY THE PLAINTIFFS HAD FORMERLY BEEN OCCUPIED BY THE PLAINTIFFS AS THEIR RESIDENCE AND IS NOW REQUIRED AS A RESIDENCE FOR THE FIRST PLAINTIFF.
- LORDSHIPS' HOUSE AGAINST THE DECISION OF THE COURT OF APPEAL.
- LORD WOULD BE ENTITLED TO RECOVER POSSESSION OF A DWELLING-HOUSE WHICH IS FOR THE TIME BEING LET ON OR SUBJECT TO A REGULATED TENANCY, THE COURT SHALL MAKE AN ORDER FOR POSSESSION IF THE CIRCUMSTANCES OF THE CASE ARE AS SPECIFIED IN ANY OF THE CASES IN PART II OF SCHEDULE 3 TO THIS ACT."
- LORD GAVE NOTICE IN WRITING TO THE TENANT THAT POSSESSION MIGHT BE RECOVERED UNDER THIS CASE, AND
- LORD" IN PARAGRAPH (A) OF CASE 10. I WILL ASSUME THAT THESE WORDS MAY BE READ AS "THE LANDLORDS" WHEN, AS IN THE PRESENT CASE, THERE IS MORE THAN ONE LANDLORD. THIS, HOWEVER, DOES NOT, IN MY VIEW, ASSIST MISS WHITEMAN. PARAGRAPH (A) WAS COMPLIED WITH SINCE THE NOTICE TO THE TENANT WAS, IN FACT, SIGNED BY BOTH THE LANDLORDS. IT FOLLOWS, THEREFORE, THAT
- LORDSHIPS CAN TAKE. I AM EXTREMELY DISTURBED THAT SUCH A HEAVY FINANCIAL BURDEN SHOULD FALL UPON MISS WHITEMAN'S SHOULDERS, PARTICULARLY AS IT WOULD HAVE BEEN AVOIDED HAD SHE OBTAINED LEGAL AID: IT MAY BE THAT THE LAW SOCIETY WILL WISH TO CONSIDER WHETHER THERE ARE ANY CIRCUMSTANCES WHICH MIGHT JUSTIFY THE ORDER AS TO COSTS NOT BEING ENFORCED.
- LORD FRASER OF TULLYBELTON
- LORDS,
- LORD".
- LORD SCARMAN
- LORDS,
- LORD WILBERFORCE. I AGREE WITH IT. I WOULD ALLOW THIS APPEAL FOR THE REASONS GIVEN BY EVELEIGH L.J. IN HIS DISSENTING JUDGMENT. I ALSO AGREE THAT THE APPELLANT SHOULD HAVE HER COSTS BEFORE THIS HOUSE AND IN THE COURT OF APPEAL.
- LORDSHIPS' DECISION ALLOWING THE APPEAL WOULD NOW BE FINAL. AS IT IS, THE CASE HAS TO GO BACK TO THE COUNTY COURT TO BE TRIED. PRELIMINARY POINTS OF LAW ARE TOO OFTEN TREACHEROUS SHORT CUTS. THEIR PRICE CAN BE, AS HERE, DELAY, ANXIETY, AND EXPENSE. SECONDLY, IT IS A TRAGEDY THAT MISS WHITEMAN, WHO HAS APPEARED IN PERSON IN THE COURT OF APPEAL AND BEFORE THIS HOUSE BECAUSE OF THE EXPENSE OF LEGAL REPRESENTATION, WAS NOT LEGALLY AIDED. SHE HAD AN EMINENTLY ARGUABLE CASE AND, IF LEGALLY AIDED, WOULD HAVE BEEN PROTECTED AGAINST THE BURDEN OF COSTS WHICH UNDER OUR LAW FALLS UPON THE UNSUCCESSFUL LITIGANT. PERHAPS SHE WAS ABOVE THE VERY MODEST LIMITS SET TO ELIGIBILITY FOR LEGAL AID. BUT THERE ARE INDICATIONS THAT SHE CHOSE NOT TO APPLY. I WONDER WHETHER SHE FULLY UNDERSTOOD THE PROTECTION OFFERED A LITIGANT BY LEGAL AID. SURELY THOSE WHO HELPED HER WITH ADVICE (AND SHE DID HAVE ADVISERS, LEGAL AND LAY, AT VARIOUS TIMES) MIGHT HAVE PERSUADED HER. PERHAPS THEY TRIED AND FAILED. BUT THE RESULT, WHATEVER ITS CAUSE, IS A FINANCIAL DISASTER FOR HER.
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Tilling v. Whiteman
Smart Summary
Factual and Procedural Background
The Appellant and Individual A jointly owned a small house in The City. On 19 February 1975 they let the property to the Respondent for two years under a regulated tenancy. The written tenancy agreement contained a clause in which the Respondent agreed to yield up the premises at the end of the term and, in conformity with Case 10 of Part II of Schedule 3 to the Rent Act 1968, it included a signed notice warning that possession might be recovered on expiry.
When the tenancy expired on 21 February 1977 the Respondent refused to vacate. The joint owners issued possession proceedings in the Canterbury County Court. At trial, instead of determining the facts, the judge allowed a preliminary point of law: whether Case 10 can be invoked where only one of several joint owners requires the house as a residence. The County Court decided against the Appellant, and a majority of the Court of Appeal dismissed her appeal. Eveleigh L.J. dissented. The Appellant then appealed to the House of Lords.
Legal Issues Presented
- Does Case 10 of Part II, Schedule 3 to the Rent Act 1968 permit an order for possession where a dwelling-house is jointly owned but is required as a residence by only one of the joint owner-occupiers?
- How, if at all, does the earlier Court of Appeal authority in McIntyre v Hardcastle apply to the construction of Case 10?
Arguments of the Parties
Appellant's Arguments
- The words “person” and “landlord” in Case 10 should be read in the singular or plural as context requires; therefore one joint owner can satisfy the condition of having “let” the dwelling.
- The legislative purpose of Case 10 is to encourage owner-occupiers temporarily absent from their homes to let them without fear of losing possession; construing the provision narrowly would frustrate that aim.
- McIntyre v Hardcastle is distinguishable because Case 8 (considered in that decision) imposes an identity between “landlord” and “person requiring the dwelling,” whereas Case 10 focuses on the “owner-occupier.”
Respondent's Arguments
- Only the composite entity of both joint owners “let” the house; therefore both must require it as a residence to satisfy paragraph (c) of Case 10.
- The language “the landlord” in paragraph (a) is incapable of being read as referring to one of several landlords for paragraph (c).
- The reasoning in McIntyre v Hardcastle supports the view that where there are plural landlords, the statutory requirement must be satisfied by all of them.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McIntyre v Hardcastle [1948] 2 K.B. 82 (C.A.) |
In Case 8-type situations, where there are joint landlords, the dwelling must be required by all of them. |
The majority distinguished it; they held that Case 10 contains different wording and policy, so the reasoning in McIntyre should not govern. |
Court's Reasoning and Analysis
Majority (Judge Wilberforce, Judge Diplock, Judge Salmon, Judge Scarman):
- Case 10 places primary emphasis on past occupation and present residential need of an “owner-occupier,” not on strict concepts of title.
- Reading “let” as encompassing the act of one of several joint owners accords with common parlance and the legislative policy of making temporary accommodation available while safeguarding the owner-occupier’s right of return.
- The mandatory nature of Section 10 reinforces a construction that avoids unnecessary obstacles to recovering possession.
- Differences in wording between Case 8 and Case 10 justify declining to follow McIntyre v Hardcastle.
Dissent (Judge Fraser of Tullybelton):
- The same “person” must both have let and now require the dwelling; here only the composite of both joint owners meets that description.
- The statute’s precise language should not be stretched; if Parliament intended a single co-owner to benefit, it could have said so expressly.
- Policy considerations cannot override the clear statutory wording that both landlords must require the residence.
Holding and Implications
HELD: Appeal ALLOWED. The House of Lords concluded that a single joint owner can satisfy Case 10; the matter is remitted to Canterbury County Court for factual determination, and the Respondent must pay the Appellant’s costs in the House of Lords and the Court of Appeal.
Implications: The decision clarifies that, under Case 10 of the Rent Act 1968, possession may be ordered even where only one of several joint owner-occupiers requires the dwelling as a residence, thereby facilitating the intended policy of encouraging temporary lets by owner-occupiers. No entirely new doctrinal rule was created, but the judgment narrows the reach of McIntyre v Hardcastle and may influence future landlord-tenant disputes involving joint ownership.
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