Maunsell v Olins
[1975] AC 373(Judgment by: Lord Wilberforce) Court:
Judges:
Lord Reid
Viscount Dilhorne
Lord WilberforceLord Diplock
Lord Simon of Glaisdale
Judgment date: 27 November 1974
Judgment by:
Lord Wilberforce
My Lords, the defendants claim the protection of the Rent Act 1968 in respect of their occupation of a cottage situated on a 106 acre farm in Devonshire. They are not employed on the farm. The question raised is of general importance both to owners of farms and to cottage occupiers. As will be seen it is not easy to decide.
The plaintiff is the freehold owner of the farm. The main buildings are approximately in the centre of the holding and include a farmhouse and two cottages. The cottage occupied by the defendants form, together with the farmhouse itself, a semi-detached pair of dwelling-houses. The other cottage is separate, but nothing in this appeal depends on any distinction between the physical situation of the one cottage or the other.
The farm was let for many years to Mr Ernest Beer on a tenancy protected by the Agricultural Holdings Act 1948. Mr Olins was employed on the farm for some time and lived in the other cottage, but in 1955 he took other employment and in 1959 Mr Beer let the cottage in question to both defendants on an unfurnished tenancy for £1 a week.
On 30 April 1963 the tenancy agreement between the plaintiff and Mr Beer, which had previously been oral, was replaced by a written agreement in the standard 'short form'. Under this agreement the farm was let to Mr Beer from 25 March 1963 for one year certain and thereafter from year to year at a rent of £400 annum. Clause 4(12) of the tenancy agreement provided that the tenant--
'Will reside in the farmhouse and will use the farm for agricultural purposes only and will not assign underlet or part with possession of the form or any part thereof except the two cottages which may be sub-let on monthly tenancies.'
The defendants were, of course, already in occupation of their cottage under a sub-tenancy. The defendants continued to live in the cottage and it is not disputed that they were protected tenants vis-à-vis Mr Beer.
Mr Beer died on 15 March 1971 and the plaintiff served a notice to quit on his legal personal representatives terminating the head tenancy on 25 March 1973. On 15 June 1973 she started these proceedings against the defendants for possession of the cottage. There is no doubt that at common law this claim must succeed since the defendants' subtenancy could not survive the termination of the tenancy. But the defendants claimed the protection of the Rent Act 1968, s 18(5).
This claim succeeded in the county court on the ground that the cottage formed physically part of the farm buildings, a circumstances supposed to distinguish the case from Hobhouse v Wall . On appeal to the Court of Appeal, this distinction was rejected and the court followed its earlier decision. The defendants in this house abandoned any attempt to distinguish this case from Hobhouse v Wall on the facts. So they are faced with the task of contending that two decisions of the Court of Appeal are wrong. It is fair to say that more than one of the learned judges, whose judgments are under review, have found difficulties in interpreting the statutory provisions, and the section is certainly one which admits, almost invites, opposing constructions.
As I have stated, the provision actually relied on is s 18(5) of the Rent Act 1968. This Act is a consolidated Act so that it is legitimate to look to the origin of the subsection in question. That is to be found in s 41 of the Housing Repairs and Rents Act 1954. There are some differences in the language of these two provisions, but, in agreement with the Court of Appeal, I do not find them significant. I shall quote, at the present stage, the earlier section--I quote the present section later--because the next step will be to ascertain what was its legal background at the time of its enactment: it was also the section interpreted in Hobhouse v Wall . It read as follows:
'Whether a dwelling-house to which the Act of 1920 applies (hereinafter referred to as "as sub-let part") forms parts of premises, not being such a dwelling-house, which have been let as a whole on a superior letting, then from the coming to an end of the superior letting the operation of the Rent Acts in relation to the sub-let part shall be the same as if in lieu of the superior letting there had been separate lettings of the sub-let part and the remainder of the premises, for the like purposes as under the superior letting, and at rents equal to the just proportion of the rent under the superior letting.'
Before we try to interpret this we must look at its context. The Act in which it appears deals with two separate subjects. Part I is essentially a housing enactment dealing with slum clearance and fitness for habitation, and contains a number of amendments of Housing Acts. Part II, in which s 41 appears, is essentially rent legislation. After ten sections (ss 23-32) dealing with the increase of rents on account of repairs, it proceeds from s 33 onwards to introduce some miscellaneous amendments to previous Rent Acts and also to Housing Acts. Section 41 is one of these amendments; it seems to stand by itself as an independent provision not reflecting or forming part of some wider change in policy. Rather it seems, as we know is common in rent legislation, a section of a piecemeal or patching character.
A first reading of this does not, to my mind, convey an impression of conspicuous clarity, particularly as to its general scope. I think that I would not be alone in finding that the key word 'premises' invites reflection. It is true that it is a general word or, rather, a word of some generality but I know of no rule of construction which requires general words to be interpreted literally regardless or their context. If appeal is made to the principle that the plain meaning of a word should be taken, unless at least some other indication appears, it must be said that a word does not necessarily have a plain meaning just because it appears to be general--certainly not such a word as 'premises'.
We know that this is a word of conveyancing jargon, meaning, strictly (and pace Viscount Hailsham in Whitley v Stumbles ( [1930] 544 AC at 546)) everything in a deed which precedes the habendum. From this it has passed into the vernacular, at least a quasi-legal vernacular, as referring to some sort of property, but not with any precise connotation. A reference to Stroud's Judicial Dictionary shows that a number of different meanings have been acquired of which the most central appears to be buildings or some kinds of buildings, but it would be far too much to say that there is any prima facie, still less any grammatical meaning from which one should start.
The appellants' main argument was that if the word is not itself a general word equivalent to property, it is given the general meaning in this subsection of any property which can be or has been let. This is said to follow from the phrase 'part of premises ... which have been let as a whole ... ' But this is a confusion of thought. A relative clause merely qualifies that to which it is relative, and does not define it or help in its definition. What kind of property (which has been let) is meant must be ascertained aliunde. I am not, myself, able to solve this problem by a simplistic resort to plain meaning. Most language, and particularly all language used in rents legislation, is opaque: all general words are open to inspection, many general words demand inspection, to see whether they really bear their widest possible meaning. As Viscount Simonds said:
'For words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.'
( Attorney General v HRH Prince Ernest Augusts of Hanover ( [1957] 1 All ER 49 at 53, [1957] 436 AC at 461)).
A first stage in this inspection might be to ask whether, to an ordinary man, 'premises' would be regarded as equivalent to 'land' or 'property'. I doubt very much whether a farmer would accept the word as a description of his farm land, or whether the local hunt would use it when asking for permission to hunt over his land. I note with interest that the tenancy agreement of this farm does not use the word 'premises' at all: what is let, and referred to in the covenants is 'the farm'. This tenancy agreement, moreover, was made in the standard short from which applies to many holdings all over the country.
So the reader of this section is bound to ask himself what the word does include: has it some lesser meaning than property or than leasehold property: is it coloured by the references to dwelling-houses: why is it used in preference to something more precise: is there perhaps a drafting reason for it? It certainly seems to facilitate the later words 'the remainder of the premises'. And in the same line of thought what is meant by 'forms part of', 'for the like purposes as under the superior letting'. In sum, what is the section trying to do? We do not have to look far for a clue.
In 1949 the Court of Appeal decided Cow v Casey . That case was concerned with a subtenancy of a dwelling-house which was not subject to the Rents Acts. The decision was that the subtenant was not entitled as against the superior landlord to the protection of the Acts. Quite obviously s 41 was intended to deal with that situation and to bring about the opposite result.
My Lords, it frequently happens that legislative changes are made in order to reverse decisions of the courts; sometimes, indeed, the courts themselves invite the change. The decision is then the occasion of the enactment. The question may, consequently, arise whether the new enactment is confined to dealing with the particular situation with which the court was concerned or whether it goes further and covers a wider field, and, if so, how much wider. There is no general rule or presumption as to this. Often Parliament, or its expert advisers, may take the opportunity to review the whole matter in principle and make broad changes. (See for example Central Asbestos Co Ltd v Dodd as to the Limitation Acts.) Legislative time is a precious commodity and it is natural that opportunities, when they arise, will be used. Or, and this happens in the fiscal field, the draftsman, faced with some loophole in a taxing Act which the courts have recognised, will not merely close that particular loophole but will use general language extending much more widely, sometimes so as to sweep the honest and conscientious taxpayer up in the same net as the evader. On the other hand, there may be cases where Parliament takes a narrow and piecemeal view of the matter; time may not admit of an extensive review which may involve wide policy questions, or necessitate consultation with other interests. All these possibilities must be taken into account by courts in assessing the legislative intention. In performing that task here, I think that help is to be gained from setting down the two main elements which the draftsman must have had in mind: the pre-existing law and the decision in Cow v Casey .
The pre-existing law is s 15(3) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920:
'Where the interest of a tenant of a dwelling-house to which this Act applies is determined, either as the result of an order or judgment for possession or ejectment, or for any other reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms as he would have held from the tenant if the tenancy had continued.'
The decision in Cow v Casey as reported in the headnote in the Law Reports reads:
'Held, dismissing the appeal, that the dwelling-house, the subject of the original demise, not being a dwelling-house to which the Rent Restriction Acts applied, s. 3 of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, did not apply to the sub-tenancy of a part of the premises so as to protect a sub-tenant from ejectment. On the determination of his sub-tenancy the defendant became at common law a trespasser. Section 15, sub-s. 3 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, under which (where the interest of a tenant of a dwelling-house to which the Act applied was determined) any sub-tenant to whom any part of the premises had been lawfully sub-let was to be deemed to have become the tenant of the head landlord, only applied to the case where the head tenant, whose tenancy had been determined, was tenant of a dwelling-house to which the Acts applied. The defendant accordingly was not entitled to the protection of the Rent Restriction Acts.'
The coincidence in language between the holding in Cow v Casey and s 41 conveys to my mind a strong impression that s 41 is a section of limited effect, dealing primarily with subleased of dwelling-houses or, at the most, with subleases of property in the same field. And this fits in with the context--a section on the face of it piecemeal, included in what is throughout housing legislation.
The effect of the change on the previous law can well be seen by looking at the consolidation Act which now sets out the old provision and the new as two subsections of the same section, s 18. These are:
'(2) Where a protected or statutory tenancy of a dwelling-house is determined, either as a result of an order for possession or for any other reason, any sub-tenant to whom the dwelling-house or any part of it had been lawfully sublet shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms as he would have held from the tenant if the tenant's protected or statutory tenancy had continued.'
'(5) Where a dwelling-house--( a ) forms part of premises which have been let as a whole on a superior letting but do not constitute a dwelling-house let on a protected tenancy; and ( b ) is itself let on a protected tenancy, or subject to a statutory tenancy, then, from the coming to an end of the superior letting, this Act shall apply in relation to the dwelling-house as if, in lieu of the superior letting, there had been separate lettings of the dwelling-house and of the remainder of the premises, for the like purposes as under superior letting, and at rents equal to the just proportion of the rent under the superior letting.'
There seems to be a relation between these to two subsections. They cover similar ground--broadly that of tenancies of dwelling-houses. There is no indication that they extend any wider.
So what should 'premises' be taken to mean? One view, the narrowest view, would be that it simply means 'dwelling-houses'. I find this, linguistically, a perfectly possible construction: the phrase 'premises, not being such a dwelling-house' meaning premises being a dwelling-house but not a protected dwelling-house: the exclusion qualifies and colour the preceding generality. A less narrow view would be to say that 'premises' includes not only dwelling-houses in the normal popular sense, but premises, which, for the purposes of the Rent Act 1968, are treated as dwelling-houses. Everybody knows, and the draftsman must be taken to have known, 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 let with a garden or a yard or a garage or a paddock, houses part (even a substantial part) of which is used for business purposes. This is, of course, an untidy situation and it means that no clear definition of a dwelling-house entitled to protection can be given. (We note that a distinction is made between a house let together with land and land let with a house.) But it reflects the reality of life, and the county courts are used, and skilful, at solving what are inevitably questions of degree. We should recognise this and, as between the narrow and the less narrow meaning, I would apply to premises the latter which would include any premises which, as a matter of fact, applying accepted principles, would be held to be a dwelling-house for the purposes of the Act.
But the alternatives must be considered. One suggested alternative is to give to 'premises' a general meaning but to exclude from it any property forming part of an agricultural holding. The basis for this would be that agricultural holdings have a code of their own (see Megarry, The Rent Acts [F2] ) and should not be brought under the general provisions of the Rent Acts. I see the force of this, but I think that a particular exception limited in this way would have received specific legislative mention and this is not to be found. The only real alternative seems to me to be to give to 'premises' a universal meaning--and that is in effect the defendants' contention. The effect of this would be to give protection not only to subtenants of individual dwelling-houses in the middle of agricultural holdings but to subtenants of individual dwelling-houses in other complexes, industrial or business, or in any large estate of any kind. To do this would represent a very great enlargement of the rights of subtenants as compared with the situation pre-1954. No doubt Parliament might think fit to take this course, but it is obvious that a number of problems and policy considerations would arise--quite distinct from those which relate to subtenants of 'housing properties' (I use this expression for convenience to refer to that I think is within the section). An indication that such problems exist and were recognised is to be found in the Agricultural Holdings Act 1948, s 26(1)( c ) of which confers on the Minister power by regulation to safeguard the interests of subtenants of agricultural holdings--a power which had been partially, but not relevantly, exercised prior to 1954 (see Sherwood v Moody . Nobody can be unaware that the law relating to tenancies of agricultural land is one of considerable political import and delicacy and I am very reluctant to believe that the particular aspect of this law which relates to subtenancies, treated with evident circumspection in 1948, would have been dealt with in a general provision such as appears in s 41 of the 1954 Act. I cannot finally help noticing that although the Court of Appeal decided in 1963 (in Hobhouse v Wall ) against protection of subtenants of premises in an agricultural holding, Parliament, normally quick enough to react in this field, has not disturbed the decision. The changes made by the Rent Act 1965 (not directly affecting the point at issue, but relating to agricultural tenancies) cannot affect the construction of a provision enacted in 1954.
It remains to say a few words on the judgments in the Court of Appeal. The leading judgment is that of Upjohn LJ in Hobhouse v Wall . The learned lord justice clearly felt difficulty about the case, as who does not? Certainly the word 'premises' was not clear in its meaning to him; but after a thoughtful consideration of the issues he reached the conclusion with which, broadly, I agree. I do not read him as saying that 'premises' means 'buildings' though, as I have pointed out, the word has been given this meaning in other contexts, but as saying that his interpretation would in effect cover only buildings. His reference ([1963] 1 All ER at 703, 704, [1963] 2 QB at 131), on the other hand, to 'what are essentially dwelling-houses' seems to reflect the conception which I would favour. He did not attempt any definition of 'premises', but contented himself with the negative conclusion that the section did not apply to agricultural holdings. I sympathise with his caution, but I think that now in this House, we must, unless we are to accept a universal meaning of 'premises', risk the attempt to draw a dividing line. I have attempted to do so in this opinion. In the present case, Lawton LJ ( [1974] 2 All ER 250 at 255) might be taken perhaps as equating 'premises' with (conventional) dwelling-houses, but I do not think that in his reference to large Victorian houses he was using more than an illustration.
My Lords, I regret that a matter which is really one of impression should have needed so many words to dispose of but we have heard some well-balanced arguments and the case is not one for quick solution. On the whole I would dismiss the appeal.