Paisner and Ors v Goodrich
[1955] 2 Q.B. 353(Judgment by: Romer LJ)
Between: Paisner and Ors
And: Goodrich
Judges:
Denning LJ
Romer LJParker LJ
Subject References:
LANDLORD AND TENANT
Rent restriction
Shared accommodation
'Part of house let as a separate dwelling'
Sole use by tenant of four bedrooms
Agreement for joint use with landlord of additional bedroom
Concurrent or consecutive sharing
JUDICIAL PRECEDENT
STATUTE
Construction
Different situation
Whether different construction permissible
Legislative References:
Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 - (10 & 11 Geo. 5, c. 17), s. 12 (2)
Judgment date: 27 April 1955
Judgment by:
Romer LJ
I have had the advantage of reading and considering the judgment which Parker L.J. has prepared and I find myself so fully in agreement both with the conclusions at which he has arrived and with the reasons upon which those conclusions are based that I can deal with certain aspects of this case quite shortly. Subject only to the question whether the sharing between landlord and tenant of the back bedroom in question was intended to be a concurrent or a consecutive user of the room, and the effect on the position if the user was intended to be consecutive, it appears to me that the state of affairs shown to exist in the present case is precisely within the "gist" of the Neale v. Del Soto ( [1945] K.B. 144 ) line of decisions as explained by Asquith L.J. when delivering the judgment of this court in Llewellyn v. Hinson, ( [1948] 2 K.B. 385 ; 64 T.L.R. 321 ; [1948] 2 All E.R. 95 ) and within the statement as to the effect of those decisions expressed by Lord Porter in Baker v. Turner. ( [1950] A.C. 401 , 414; 66 T.L.R. (Pt. 1) 780; [1950] 1 All E.R. 834 )
It was sought on behalf of the tenant to escape from or distinguish those statements of the law (which are, of course, binding upon us) on the ground that the bedroom was only placed at the partial disposal of the tenant as a spare bedroom and that for that reason, coupled with the alleged fact that the room was not "essential" to her, there was no "sharing" within the Neale v. Del Soto ( [1945] K.B. 144 ) doctrine. As to this, however, the room was not described in the tenancy agreement as a "spare bedroom," and the evidence shows that the tenant wanted the use of it for her son when he should be home on leave and even more so when he should have finished his military service and could go and live with her. So far as this point is concerned, therefore, I cannot distinguish this particular bedroom from any other bedroom which a landlord agrees to share with his tenant. Then, as to "essential" (a qualification which appears to have arisen somewhat fortuitously in relation to living accommodation in some of the more recent cases), I am unable to appreciate anything of significance, so far as the present case is concerned, that emerges from the addition of this word. The word excludes, I suppose, accommodation that is unimportant, but I imagine that all living accommodation in the usually accepted sense is of importance to a tenant, not least a room which the tenant desires for sleeping purposes for himself or a guest. It was suggested that the fact that Mrs. Jaffe, in the years which preceded her death, prevented the tenant from using this particular room shows that the tenant did not really need the room. I cannot accept this, for there are plenty of things which a person needs but which he has to do without; and many people prefer to be deprived of legal rights rather than issue a writ to enforce them.
There remains, however, the question of concurrent user. The tenant's submission as to this is
- (1)
- that it is a matter of necessary inference that Mrs. Jaffe and the tenant could not have intended that the common use of this bedroom should be enjoyed concurrently, and
- (2)
- that, accordingly, the principle of Neale v. Del Soto ( [1945] K.B. 144 .) does not apply, because only concurrent sharing falls within it.
It may be conceded that inasmuch as Mrs. Jaffe and the tenant were comparative strangers, and that in any case the room might, and probably would, be used by their respective guests, they in all probability contemplated that their respective rights of user should not be exercised simultaneously. I am not, however, prepared to hold that this element of itself ousts the Neale v. Del Soto ( [1945] K.B. 144 .) doctrine. The supposition that the question of whether an intended sharing of accommodation is concurrent or consecutive is a relevant element in considering whether or not the doctrine applies appears to have first occurred to Mackinnon L.J. in Cole v. Harris. ( [1945] K.B. 474 ) I am, however, unable to find that this question has in any later case been regarded as relevant or, indeed, that it has been in any way considered in subsequent cases. It is clear that Morton L.J. thought that consecutive user might constitute a "sharing," for he more than once referred in his judgment in Cole v. Harris ( [1945] K.B. 474 ) to the sharing of a bathroom or a w.c. and only excluded such sharing from the Neale v. Del Soto ( [1945] K.B. 144 .) principle on the ground that bathrooms and lavatories do not constitute "living rooms"; and Lawrence L.J., in his judgment in the same case, obviously saw no difficulty in the conception of "sharing" a w.c. or bathroom. Many a gloss has been put by judicial interpretation upon the language of the Rent Restriction Acts, and I am unwilling to add to their number by holding that although a concurrent sharing does displace their operation a consecutive sharing does not. In my opinion, accordingly, the submission of the tenant on this point cannot be accepted.
A further point taken by Mr. Benenson for the tenant was that the right of user granted to the tenant under the tenancy agreement was of so uncertain a character that the court would not grant an injunction to prevent the lessor from attempting to interfere with the enjoyment of it; and that a right which is so indefinite as to be incapable of this protection cannot properly be regarded as amounting to a "sharing." I think it is true that there would be considerable difficulty in framing such an injunction as I have mentioned because the tenant cannot postulate that she is entitled to use the bedroom at any given time or on any particular day. Even assuming, however, that the remedy of injunction would not be open to the tenant if she was unreasonably prevented by her landlord from using the room at a time when she wanted it and the landlord did not, her right under the agreement is not one which, in my opinion, is of so vague a nature that the law would disregard it altogether; and if the court was satisfied that the tenant had been unreasonably and unwarrantably deprived of the use of the room I see no reason why she should not be awarded such damages for breach of contract as she could prove that she had sustained. Moreover, it does not seem to me that there is any essential distinction, in point of uncertainty, between the tenant's right to use the bedroom and the right to the common use of a kitchen.
I have therefore, though with regret, arrived at the conclusion that this appeal must be dismissed. I say "with regret" because I feel that were we able to approach this case unfettered by authority my strong inclination would be to hold that the four rooms which were let to the tenant constituted a separate dwelling for the purpose of the Acts; and it seems to be a curious result that although the tenant's right to share the bathroom and lavatories in the house (and she could scarcely get on without it) does not deprive her of the protection of the Acts the less important right to use the bedroom does. However, such, in my judgment, is the effect as authoritatively expounded of the Neale v. Del Soto ( [1945] K.B. 144 .) series of decisions (unfortunate though it be), and I cannot for myself see a legitimate means of escape.