Tan v Sitkowski (CA)
- Date: 01/02/2007
Related Barrister:
Mr S took a lease of a shop with residential premises above from the GLC in 1970. He lived there with his family for some time but was eventually left there alone. The lease was last renewed in 1976 and took the form of a business lease. On the demise of the GLC the lease passed to the London Residuary Body. In 1990 it was purchased by Mr & Mrs T. In 1989 Mr S had ceased all business activity at the shop. By 2003 the property was virtually derelict and the local authority served a dangerous structure notice requiring extensive works to be carried out. Mr & Mrs T sought possession on the basis that Mr S was formerly a business tenant within the meaning of Part II of the Landlord and Tenant Act 1954 and damages for disrepair. Mr S counterclaimed for substantial damages for disrepair and nuisance. His defence to the possession proceedings was that he became a protected tenant within the meaning of the Rent Act 1977 on the cessation of his business use. At trial HHJ Knight QC made an order for possession.
Mr S appealed arguing that the acceptance of housing benefit for nearly 14 years amounted to the implied grant of a new residential tenancy. At the instigation of the Court of Appeal it was also argued that on a proper construction of the Rent Act 1977 and its predecessors going back to 1915 the term “let as a separate dwelling” included a mixed use tenancy and that decisions of the Court of Appeal to the contrary were either per incuriam or obiter dicta.
The Court of Appeal held:
1. That it would follow its previous decisions in Pulleng v Curran (1980) 44 P&CR 58, Wagle v Henry Smith’s Charity [1990] 1 QB 42 and Webb v Barnet LBC (1988) 21 HLR 228 with the effect that the words “let as a separate dwelling” in the Rent Acts 1968 and 1977 had a different meaning to that of its statutory predecessors before 1957. Consequently no protected tenancy under the Rent Act 1977 could arise on the cessation of the business use by Mr S.
2. The authorities relied upon did not sit easily with the earlier decisions of Epsom Grandstand Association v Clarke (1919) 35 TLR 525 and Hicks v Snook (1928) 27 LGR 175 it would amount to “judicial hooliganism” to overrule the trio of cases which had been relied upon for many years.
3. The mere acceptance of housing benefit by a landlord without more would not give rise to the grant of an implied tenancy when the landlord could not prevent the tenant claiming housing benefit. Consequently Mr S’s appeal was dismissed.