Paisner and Ors v Goodrich

[1955] 2 Q.B. 353

---

(Judgment by: Parker LJ)

Between: Paisner and Ors
And: Goodrich

Court:

Judges: Denning LJ
Romer LJ

Parker 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)

Hearing date: 23-24 March 1955
Judgment date: 27 April 1955

---

Judgment by:
Parker LJ

(Parker LJ's judgment read by Romer L.J.). The question to be determined is whether a part of a house was let to the tenant as a separate dwelling. There is no doubt that the four rooms on the first floor let to the tenant constituted in themselves a separate dwelling, but by the tenancy agreement she also obtained "the use in common with the landlord of the back bedroom on the first floor." Prior to 1945 no one suggested that in such circumstances the right to use a room in common with the landlord affected the position. Beginning, however, in 1945 with Neale v. Del Soto, ( [1945] K.B. 144 .) there have been a number of decisions of this court which show that the effect may be to constitute the sharing of the house rather than the letting of a separate dwelling. In Llewellyn v. Hinson, ( [1948] 2 K.B. 385 ) Asquith L.J., in giving the judgment of the court, said ( [1948] 2 K.B. 385 ):

"This court cannot consider whether Neale v. Del Soto ( [1945] K.B. 144 ) and its satellite cases were properly decided. It can only inquire what they in fact decided. About this there can in our view be little doubt. The gist of those decisions is that where what the landlord under the agreement of tenancy parts with to the tenant consists of two things:

(a)

exclusive possession of a room or rooms, plus

(b)

user, jointly with someone else, of another room or other rooms which come under the description of a living room or living rooms,

then the tenant cannot say that he is the tenant of a 'house let as a separate dwelling or part of a house being a part so let.' The ratio decidendi is that the 'dwelling' of the tenant on the facts assumed consists of the totality constituted by (a) plus (b): and that part of the totality is not 'separately' let to him, because the possession or user of it is to be shared by him with another: a state of affairs which is inconsistent with the word 'separately,' and indeed with the word 'let' for both of these terms connote exclusive possession or enjoyment." This statement of the effect of the cases was quoted with approval by Lord Normand and Lord MacDermott in Baker v. Turner, ( [1950] A.C. 401 ) and Lord Porter said ( [1950] A.C. 401 ):

"The main results of decisions may, I think, be tabulated as follows:

(1)

A portion of a house which is let by a landlord to a tenant, even if in itself separate, ceases to be a separate dwelling or to be protected by the Acts if the terms of the letting contain a provision that the tenant shall have the right of using a living room belonging to the landlord:"

It is true that the appellant in that case accepted the decision in Neale v. Del Soto ( [1945] K.B. 144 . ) and the cases which followed it as correct, but so far at any rate as this court is concerned, the principles to be deduced from the cases as enunciated by Asquith L.J. and Lord Porter are binding upon us.

It is accordingly, in my view, much too late to contend that the true test is whether the premises let, for example, the four rooms in the present case, constitute a separate dwelling. As Asquith L.J. pointed out in Llewellyn v. Hinson, ( [1948] 2 K.B. 385 ) vide supra, the ratio decidendi of the decision in Neale v. Del Soto ( [1945] K.B. 144 .) and its satellite cases necessitated a limitation which would exclude cases where the joint user was of some ancillary accommodation or facility such as a w.c., a bathroom, a boxroom or a coal cellar. Thus the operation of the rule has been limited to cases in which the joint user of a "living room" has been given, for example, a kitchen (Neale v. Del Soto ( [1945] K.B. 144 .) and Kenyon v. Walker ( 62 T.L.R. 702 ; [1946] 2 All E.R. 595 ) and a kitchenette (Winters v. Dance ([1948] W.N. 317; 64 T.L.R. 609 ; [1949] L.J.R. 165. ) as opposed to the joint user of some ancillary accommodation or facility, for example, a w.c. and bathroom (Cole v. Harris ( [1945] K.B. 474 ) a right to draw water in the kitchen (Hayward v. Marshall25. No doubt as a means of drawing this distinction the word "essential" has crept in in connexion with the living room. Thus the headnote in Cole v. Harris ( [1945] K.B. 474 ) stated that "if there was a sharing of essential living room" there would not be a letting of a separate dwelling-house; though Mackinnon L.J. said ( [1945] K.B. 474 )at these words form part of Morton L.J.'s test in the same case, a reference to Morton L.J.'s judgment discloses no use of the word "essential" when he is stating what he says is the true test. Morton L.J., in the same case, said ( [1945] K.B. 474 )

"It cannot be that any sharing of any room, however unimportant, takes the property outside the operation of the Act."

Thereafter the word "essential" has several times been used. Thus in Winters v. Dance ([1949] L.J.R. 165, 169) Tucker L.J. says:

"I think that the basis of the decisions is that a room which is used for the primary purpose of cooking is a living-room: it is essential to the life of the occupants of the premises and is a room in which, of necessity, at least one occupant of the premises spends an appreciable portion of his or her life."

Again, in Hayward v. Marshall, ( [1952] 2 Q.B. 89 , 97) Jenkins L.J. sets out the question in this form:

"Is that room"

(the use of which is shared)

"part of the essential living accommodation?"

It is to be observed, however, that the word does not appear in Asquith L.J.'s review of the cases in Llewellyn v. Hinson ( [1948] 2 K.B. 385 ) or in any of their Lordships' speeches in Baker v. Turner. ( [1950] A.C. 401 )

In my opinion the use of the word "essential" is in contradistinction to "unimportant." Moreover, the test is purely objective. Is it part of the essential make-up of the house? (cf. Evershed M.R. in Hayward v. Marshall, ( [1952] 2 Q.B. 89 , 99) where he said: "The distinction rests rather upon the view that the ordinary uses and purposes of a kitchen are essential manifestations of living or residence"). The question is not whether the room is essential for the particular tenant. Viewed in this light it is, I think, impossible to say that the joint user of a bedroom does not make the Acts inapplicable.

It is, however, suggested that in order that the Acts should not apply, the user to be shared must be a contemporaneous user and not a successive user. This conception was put forward and put forward alone by Mackinnon L.J. in Cole v. Harris ( [1945] K.B. 474 , 478.) in contrasting the sharing of the user of a kitchen as opposed to the sharing of the use of a w.c. or a bathroom where, by their nature, the user would be successive. That was not, however, the reason for his decision because ( [1945] K.B. 474 , 479) he adopts Morton L.J.'s test of whether or not the room is a living room. In other words, he bases his decision, not on the nature of the sharing, but on the nature of the accommodation, and no one in any other case has sought to distinguish the nature of the sharing. Speaking for myself, I can see no difference for the purposes of the application of the rule between the ordinary sharing of the use of a kitchen with a contemporaneous user contemplated and a sharing of the use of a kitchen with an express provision for consecutive user, for example, at fixed times.

The position, I conceive, might be different if the stipulation were for the exclusive use by the tenant for, say, the first three months in every year. In any event I should be loth at this late date to introduce what appears to me to be "an unwarrantable extra refinement" (cf. Morton L.J. in Kenyon v. Walker ( [1946] 2 All E.R. 595 , 598). The provision, however, in the present case is for "the use in common with the landlord of the back bedroom." There is no express stipulation for exclusive user by the tenant for any period, and, indeed, on the face of the agreement there is nothing to prevent a contemporaneous user. Accordingly, I have reluctantly come to the conclusion that the Acts do not apply and that the county court judge came to a correct decision. I say "reluctantly" because all one's sympathy is with the tenant who by Mrs Jaffe's conduct was for a long time prevented from enjoying any use of the bedroom, and because, apart from authority, I should have had little doubt that what was let to her was a separate dwelling.

Appeal dismissed.