3PLR – KENNEALY AND ANOTHER V. DUNNE AND ANOTHER

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KENNEALY AND ANOTHER

V.

DUNNE AND ANOTHER

[COURT OF APPEAL]

[PLAINT NO. 7523883]

1976 NOV. 26 [1977] 2 W.L.R. 421

3PLR/1977/36  (CA-E)

 

BEFORE THEIR LORDSHIPS                           

MEGAW,

STEPHENSON AND

BROWNE L.JJ.

REPRESENTATION

Andrew Hillier – for the plaintiffs

Suzanne Shenton – for the defendants

MAIN ISSUES

Landlord and Tenant – Rent restriction – possession application – Personal occupation, for – Flat previously occupied by owner let to statutory tenants – Application for possession on ground that flat required as residence by owner – “Required” – Meaning of – Rent Act 1968 (c. 23), s. 10, Sch. 3, Pt. II, Case 10 (as amended by Rent Act 1974 (c. 51), s. 1, Sch. 1, para. 5 (1) (2))

The plaintiffs, husband and wife, owned a London flat which they had occupied as their residence between 1957 and 1968 when they went to live in Spain in connection with the husband’s employment. In May 1968 they let the flat furnished to the defendants on a weekly tenancy. On their return from Spain in 1974 the plaintiffs served notice to quit on the defendants and brought proceedings in the county court to obtain possession under Case 10 of Schedule 3 to the Rent Act 1968, as amended by the Rent Act 19741.Meanwhile they resided in a house in Hayling Island, which they owned, the husband travelling from there to his work in London. It was not disputed by the defendants that the plaintiffs had previously occupied the flat as their residence and that they had served notice on the relevant date informing the defendants that they might seek to recover possession under Case 10, so that paragraphs (a) and (b) of that Case were satisfied. The only question before the judge, therefore, was whether the plaintiffs required the flat as their residence within the meaning of paragraph (c). Judge Honig interpreted the word “requires” in Case 10 as meaning more than “wants” and more than “bona fide intention.” He said that there was something objective as well, was not satisfied that the plaintiffs required the flat as their residence and dismissed the claim.

On appeal by the plaintiffs: –

MAIN JUDGEMENT

Held,

allowing the appeal, that the word “required” in Case 10 could not be construed as importing any objective standard of reasonableness; that it imposed a burden on the landlord to prove no more than that he had a genuine desire and a genuine immediate intention to use the dwelling house as his residence or as a residence for members of his family. Accordingly, the judge, in applying a standard of reasonableness, had come to a wrong conclusion and an order for possession should be made (post, pp.429H, 430E, F, 431B-C, E-G).

Aitken v. Shaw, 1933 S.L.T. 21 and Ireland v. Taylor [1949] 1 K.B. 300, C.A. applied.

Armstrong v. Vallance (1951) 52 W.A.L.R. 90 considered.

The following cases are referred to in the judgments:

Aitken v. Shaw, 1933 S.L.T. 21.

Armstrong v. Vallance (1951) 52 W.A.L.R. 90.

Clift v. Taylor [1948] 2 K.B. 394; [1948] 2 All E.R. 450, C.A.

Ireland v. Taylor [1949] 1 K.B. 300; [1948] 2 All E.R. 113, C.A.

Nuthall (G.E.C.) (1917) Ltd. v. Entertainments & General Investment Corporation Ltd. [1947] 2 All E.R. 384.

1 Rent Act 1968, Sch. 3, Case 10: see post, pp. 422H-423A.

No additional cases were cited in argument.

APPEAL from Judge Honig sitting at Willesden County Court.

In December 1974, the plaintiffs. George Edward Kennealy and his wife, Catherine Bridget Kennealy, joint beneficial owners of a flat, 1E, Thorpebank Road, London, W.12, began proceedings for possession against the defendants, John Dunne and his wife, Mary Dunne, under Case 10 of Schedule 3 to the Rent Act 1968 as amended by the Rent Act 1974.

By their particulars of claim the plaintiffs stated that they had let the flat to the defendants under an oral agreement on a weekly tenancy commencing on May 9, 1968, at a weekly rent of £7.50. The flat was furnished and consisted of a bedroom, sitting-room, box-room, kitchen and bathroom. On July 4, 1974, the plaintiffs had served notice to quit to take effect on or before August 7, 1974, but the operation of the notice was deferred until November 29, 1974 by order of the Hammersmith Rent Tribunal. The defendants had remained in occupation of the premises as statutory furnished tenants. The plaintiffs, with their daughter, had themselves occupied the flat as their residence from March 1957 to May 1968 when Mr. Kennealy went to work in Spain. They had served notice on the defendants that they might seek to recover possession of the flat under Case 10 and having returned from Spain they now required the flat as a residence for themselves and their family.

The defendants opposed the application on the ground that they could not find accommodation.

On January 22, 1976, Judge Honig taking the view that the plaintiffs had not satisfied him that they required the flat for themselves or members of their family within the meaning of Case 10, dismissed the claim.

The plaintiffs appealed on the grounds (1) that the judge had wrongly held that for an owner of a dwelling house to establish that he required the dwelling house for use by himself as a residence within the meaning of Case 10 it was insufficient for him to establish merely that he wanted and bona fide intended to occupy the dwelling house as his residence; (2) that the judge’s finding that the premises were not required by the plaintiffs as a residence within the meaning of Case 10 was unsupported by the undisputed evidence of Mr. Kennealy.

The facts are stated in the judgment of Stephenson L.J.

MEGAW L.J. I shall ask Stephenson L.J. to deliver the first judgment.

STEPHENSON L.J. This is an appeal against an order of Judge Honig made at the Willesden County Court on January 21, 1976, dismissing the claim of Mr. and Mrs. Kennealy, the plaintiff landlords, for possession of a furnished flat, 1E, Thorpebank Road, London, W.12, which had been let to Mr. and Mrs. Dunne, the defendants. Possession of the flat was claimed under Case 10 of Part II of Schedule 3 to the Rent Act 1968. Case 10 (as amended) is this:

“Where a person who occupied the dwelling house as his residence (in this case referred to as ‘the owner-occupier’) let it on a regulated tenancy and (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling house has not, since December 8, 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 count 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.”

There is no dispute that the landlords occupied this dwelling house as their residence, or that they let it on a regulated tenancy. The flat is a furnished flat. The tenancy of it is a “regulated” tenancy under section 1 of the Rent Act 1974. There is no dispute that the landlords gave the notice in writing required by paragraph (a) of Case 10. Paragraph (b) was also indisputably fulfilled. The only dispute relates to paragraph (c). As the judge put it, “Nothing is in dispute except whether Mr. and Mrs. Kennealy require lE as a residence for themselves or their family.” The county court judge was not satisfied that the dwelling house, the flat lE, was required as a residence for the owner-occupiers, the landlords, or their family. Ought he to have been?

Mr. Hillier, for the landlords, contends that the judge ought to have been so satisfied, and that the reason why he was not so satisfied was, first of all, that he erred in interpreting the word “required.” The judge’s interpretation was this:

“I have to determine.” he said, “what ‘requires’ means. Case 8 and Case 10 of the Rent Acts are quite different. I am not concerned with reasonableness or hardship. The only requirement is that the plaintiffs must require it as their residence. I would have thought that ‘requires’ has its ordinary dictionary meaning, which would be somewhere between ‘wants’ and ‘needs.’ The person who ‘wants’ does not necessarily ‘require.’ The person who ‘requires’ does not necessarily ‘need.’ The person who ‘needs’ certainly ‘requires.'”

At the end of his judgment he said:

“I am entitled to interpret the word as it should be interpreted in its dictionary meaning. It means more than ‘wants’ and more than bona fide ‘intention’; there is something objective as well. Mr. and Mrs. Kennealy have a residence in Hayling Island. They are entitled to use 1D” – that is an adjoining flat – “the only occupier of which is Jill” – who is their daughter. “In my view they do not require 1E as residence.”

It is unnecessary to go into the facts any further, or to decide whether the judge should have been satisfied that flat 1E was “required” as their residence by the landlords on the judge’s own definition of “requires. ” For Miss Shenton, who has said everything that could be said on behalf of the tenants in support of the judge’s judgment, as conceded that if the judge’s construction of “requires” was wrong and the construction which Mr. Hillier asks us to put upon it, or some other similar construction, is right, this appeal must be allowed. Mr. Hillier would then succeed on the first ground of his appeal; and that is stated in these terms:

“The judge wrongly held that for an owner [-occupier] of a dwelling house to establish that he required the dwelling house for use by himself as a residence” – that would be more accurately “for himself as a residence” – “within the meaning of Case 10 of Schedule 3 of the Rent Act 1968 as amended by the Rent Act 1974, it was insufficient for him to establish merely that he wanted and bona fide intended to occupy the dwelling house as his residence.”

Case 10 is the first of the Cases in Part II of Schedule 3 in which the court must order possession where a dwelling house is subject to a regulated tenancy. That distinguishes it from any of the Cases, including Case 8, in Part I of the Schedule, which covers cases in which the court may order possession. On the face of them, Case 8 and Case 10 are distinguished in four other ways. Case 8 is this Case:

“Where the dwelling house is reasonably required by the landlord for occupation as a residence for (a) himself, or (b) any son or daughter of his over 18 years of age, or (c) his father or mother, or (d) if the dwelling house is let on or subject to a regulated tenancy, the father or mother of his wife or husband, and the landlord did not become landlord by purchasing the dwelling house or any interest therein after March 23, 1965, or, if, the dwelling house is let on or subject to a controlled tenancy, after November 7, 1956.”

These are the other distinctions between these two cases. First of all, for a landlord to bring himself within Case 10 as distinct from Case 8, he has to have occupied the dwelling house as his residence before he let it on a regulated tenancy. Secondly, he has to “require” the dwelling house as his residence; whereas, to bring himself within Case 8, the dwelling house has to be “reasonably required” by him “for occupation as a residence.” The words “for occupation” do not seem to add anything; but the word “reasonably,” on the face of it, does seem to add something substantial. The third difference between the two Cases is this. The Cases come into the Act under section 10. Section 10 of the Rent Act 1968 provides:

“(1). Subject to the following provisions of this Part of this Act, a court shall not make an order for possession of a dwelling house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either (a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 3 to this Act.

(2)     If, apart from the provisions of subsection (1) above, the landlord would be entitled to recover possession of a dwelling house which is or 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 bf Schedule 3 to this Act.”

So that, for a landlord to bring himself within Case 8 the court must consider it reasonable to make an order for possession before it can make it; but that does not apply to a landlord seeking possession if qualified under Case 10. Finally, Part III of the Schedule introduces “Provisions applicable to Case 8 and Part II” – the first of which is not applicable to Case 10. That provision is the “greater hardship” provision:

“A court shall not make an order for possession of a dwelling house by reason only that the circumstances of the case fall within Case 8 in Part I of this Schedule if the court is satisfied that, having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order than by refusing to grant it.”

The irresistible inference on the face of those two Cases, compared one with the other, is that under Case 8 the dwelling house must be “reasonably required” by the landlord; but under Case 10 the dwelling house can be “required” successfully by the landlord, to bring himself within the Case, without being “reasonably required”; and the words “reasonably required” have been interpreted in a way not wholly unfavourable to landlords.

Mr. Hillier has submitted that “required” can, out of context and taken simply by itself, mean anything from “desired” to “indispensable.” For that he referred us to the judgment of Hallett J. in G.E.C. Nuthall (1917) Ltd. v. Entertainments & General Investment Corporation Ltd. [1947] 2 All E.R. 384, 392; and an examination of that judgment shows that the judge also considered, in relation to section 5 (3) (b) (i) of the Landlord and Tenant Act 1927, and other provisions of it, an intermediary meaning of “reasonably needed.” But, submits Mr. Hillier, in the context of the Rent Acts “required” must mean something less than “reasonably required.” Those words, “reasonably required”, in the Rent Acts, in Case 8 and its predecessor in earlier Acts, have been given less than completely objective meaning. The words have been limited to meaning reasonably required from the landlord’s point of view, and not in all the circumstances including the tenant’s. That limited interpretation of the words “reasonably required” has no doubt come about because the tenant is protected by the provisions of what is now section 10 (1) – that the court must consider the making of an order for possession reasonable – and by the further safeguard that the balance of hardship must be in the landlord’s favour for him to get possession under what is now Part III of Schedule 3.

The position seems to be that for a dwelling house to be reasonably required it must be the subject of a genuine present need on the part of the landlord. That was the view of the Sheriff in a Scottish case of Aitken v. Shaw, 1933 S.L.T. 21, which is cited both in Woodfall on the Law of Landlord and Tenant, 27th ed. (1968), vol. 2, p. 1545, and in Megarry on The Rent Acts, 10th ed. (1967), vol. 1, p. 284:” The words ‘reasonably required'” – said Sheriff Blades K.C., in that case – “connote something more than desire, although at the same time something much less than absolute necessity will do.” The tenant’s position where an order for possession is sought against him under the present Case 8 cannot, I think, be better out than it was in the same work by the same author at p. 185 of the same volume:

“In determining whether the premises are reasonably required by the landlord, the position of the tenant (e.g. any hardship to him) is irrelevant, although it is of course material on the specific issue of hardship and the general issue of reasonableness. A tenant cannot say that his premises are not reasonably required merely because the landlord has other tenants against whom he might have proceeded. for as long as the landlord ‘satisfies the court that he “reasonably” requires a house to live in it must be left to him to say which of his houses he desires to occupy.’ Yet this may be relevant on the general issue of reasonableness.”

Mr. Hillier has referred us to two other authorities. It is quite clear, as Miss Shenton has stressed, that care must be taken in applying to

the word “required” in this context, the context of Case 10, a meaning attributed to the word in other contexts. To that extent I agree with the judge. Nevertheless, for my part I do get help from both the decisions which Mr. Hillier has brought to our attention. The first is a decision of the Supreme Court of Western Australia, to which he did not refer the judge. It is Armstrong v. Vallance (1951) 52 W.A.L.R. 90. The Supreme Court was dealing with an appeal from a magistrate who had held that a lessor, under the terms of section 15A (1) of an Australian statute called the Increase of Rent (War Restrictions) Act 1939-1950, “‘requires the premises for his own occupation’ if he has a wish or desire to so occupy them.” On appeal, the Supreme Court upheld the decision of the magistrate, holding that

“the words ‘requires the premises for his own occupation’ mean that the premises are, subjectively by the lessor, ‘wanted’ or ‘desired.’ In the determination of this question an objective inquiry into the lessor’s ‘needs’ is irrelevant.”

It is plain from the judgment of the court, given by Dwyer C.J., that importance was attached to the fact that the statute in question required a statutory declaration from the landlord and therefore it was thought that some protection was given to the tenant against a landlord invoking the section by the sanction that the landlord could be prosecuted if he made deliberately – consciously – a false statement in the statutory declaration. But the Chief Justice stated, at p. 92:

“‘Requires’ in my opinion there means ‘claims’ or ‘demands’ or definitely expresses his desire to have his premises returned to him. In reality the subsection means no more than that the owner wishes the premises for his own occupation or for the occupation of a married son or daughter and that that wish is a genuine one. The magistrate would have no authority to make inquiry into the actual needs of the owner or of his married child, for that becomes irrelevant when the wording of the section is considered, and the provisions of subsection (4) are also referred to.”

Clearly, the subject matter of that case is fairly near to the subject matter of this. But Miss Shenton calls attention to the absence of any similar declaration required from a landlord who wants possession under Case 10. However, should a tenant contest (as the tenants in this case have contested) the landlords’ claim to possession, the landlords have to give evidence, as they have in this case, and, for what it is worth, the same sanction would appear to be available to protect – to a very limited extent – the tenants resisting such a claim.

The other case to which Mr. Hillier referred us is a decision of this court in Ireland v. Taylor [1949] 1 K.B. 300. This court was there considering the same provisions of the Landlord and Tenant Act 1927, as Hallett J. considered in G.E.C. Nuthall (1917) Ltd. v. Entertainments & General Investment Corporation Ltd. [1947] 2 All E.R. 384. Among the points which were raised in Ireland v. Taylor was a point on the propriety of granting the tenant a new lease of business premises. Section 5 (3) of the Landlord and Tenant Act 1927 (now repealed) provided:

“Where the tenant is the applicant, the grant of a new lease under this section shall not be deemed to be reasonable. . . (b) if the landlord proves (i) that the premises are required for occupation by himself, or,

where the landlord is an individual, for occupation by a son or daughter of his over 18 years of age. . . . Provided that, if the grant of a new lease is refused by the tribunal on any such ground as is mentioned in paragraph (b), the tribunal may make it a condition of refusal that if the landlord fails to carry out his intention within such period as may be allowed by de tribunal, the landlord shall pay to the tenant such compensation as the tribunal may fix not exceeding the amount of the loss which the tenant has suffered by reason of having been deprived of his right to the grant of a new lease under this section.”

The judge regarded himself, rightly, as not bound by the interpretation put upon the words in the Act of 1927, which had different purposes from those in this Act. Nevertheless, I do get help from what was said by all three members of the court in that case. The argument there on behalf of the landlord was that the judge had misconstrued the word “required” (in what way it was misconstrued will appear in a moment). It was submitted that a landlord has only to prove that he desires and intends to occupy the premises himself: if that is proved, his motive is immaterial. It was submitted for the tenant that when the legislature used the word “intention” in the proviso which I have read it was referring to something implied in the word “requirements”: but it did not follow that it meant requirements: “the word to require includes intention as merely one of its elements.”

I go at once to the judgment of Cohen L.J., because it sets out most fully the relevant facts and considerations. Cohen L.J. said, at p. 320:

“A more formidable objection for the grant of a new lease is based on the provision in section 5 (3), which lays down that it shall not be deemed to be reasonable to grant a new lease if the premises are required by the landlord for his own occupation. The landlords in their answer contended that they would require the premises for occupation for themselves and for their son and daughter-in-law. Before turning to the evidence on this point, it is necessary to decide what is meant by the word ‘required.’ The referee came to the conclusion that this word meant ‘needed,’ and that as (1) the landlords’ allegation, so far as the son and daughter in-law were concerned, was unsupported by evidence, and (2) so far as the landlords themselves were concerned they had another house which they could retain under the Rent Restriction Acts, it could not be said that they needed the premises for their own occupation. Before the county court judge Mr Hawser, for the landlords, contended that the referee had wrongly construed the word ‘required,’ and he relied on the judgment of Hallett J. in G.E.C. Nuthall (1917) Ltd. v. Entertainments & General Investment Corporation Ltd. [1947] 2 All E.R. 384, 392 . . .”

Cohen L.J. said that he agreed with Hallett J.’s construction of that section, and went on:

“The county court judge purported to accept it, but qualified his acceptance in the following words: ‘I do not think I am doing any injustice to Bat dictum if I say that there is always a danger in interpreting a word in a statue by the simple substitution of another, and I feel that, although it is wrong to say that “requires” is the same as “reasonably requires” or “needs,” yet it is a somewhat stronger word than “intends” and does not include a mere whim or fancy.”

The Lord Justice continued, at pp. 320-321:

“If by these observations the county court judge merely meant that the intention must be a genuine intention. I should not quarrel with him, but if he meant that, although the intention was genuine, the court must consider whether it was reasonable, then I am unable to agree. From the way in which the county court judge discussed the evidence, I have come to the conclusion that the second interpretation of his language is correct, and that he thought it open to him to consider the reasonableness of the landlord’s intention. After referring to the referee’s summary of the evidence of the landlords, he says that he had had the advantage of reading a shorthand note of Mrs. Taylor’s evidence, and was not at all satisfied that she genuinely required the house for her own occupation. He refers to Taylor’s evidence” – he was the landlord – “in the following language: ‘Taylor, whose’ evidence was more frank, is apparently wishful of having the big lounge in the house for resuming at the age of 70 his profession as a portrait painter; but, having regard to all the circumstances, I cannot regard the as more than a mere whim, when it involves the requirement of an unsuitably large house for the sake of the size and lighting of one room in it.'”

Cohen L.J. concluded:

“As I read that observation, he is saying that Taylor’s evidence is genuine, but that he, the judge, does not regard it as reasonable, having regard to the rest of his evidence, that at the age of 70 Taylor should want the big lounge in the premises for his professional work.”

Tucker L.J. stated the matter in a way which is reproduced in the headnote of the case. He said, at p. 311:

“The referee had interpreted the word ‘required’ as if it meant ‘needed.’ somewhat on the lines of the words ‘reasonably required’ in the Rent Restriction Acts. The county court judge rightly rejected this construction, but appears to have interposed his own judgment as to the landlord’s ‘requirements,’ whereas, in my opinion, in this part of section 5 the landlord must be the sole arbiter of his own requirements, provided that he proves that he in fact desires possession and genuinely intends to occupy. I think that this construction is strongly supported by the use of the word ‘intention’ in the proviso, which, it may be observed, provides a means whereby a landlord who goes back on his expressed intention can be penalised. It is also the construction accepted by Hallet J. in Nuthall (G.E.C.) (1917) Ltd. v. Entertainments & General Investments Corporation Ltd. ”

So the Lord Justice held “that the judge’s order should be varied by substituting for the order for a new lease an award of the compensation fixed by the referee” – that is, under the proviso.

Finally, Somervell L.J., in a passage which the judge in this case quoted in his judgment, said, at p. 316:

“The next question is whether the judge was right in ordering a new lease. On this point, I think, the appeal succeeds on the ground that the landlords required the premises for occupation by themselves. The referee in his report construed ‘requires’ as meaning ‘needs,’ and came to the conclusion that the landlords did not need this large house. It is unnecessary to refer to the evidence in detail, but neither in the referee’s findings nor, as far as I can see, in cross-examination was any doubt thrown on the intention of the landlords to go and live in the house if they got the chance. The judge did nod regard ‘requires’ as meaning ‘reasonably requires’ or ‘needs,’ but as a somewhat stronger word than ‘intends.’ He, again, as I read the judgment, threw no doubt on the landlords’ intention. He regarded their desire ” – that is, Mr.Taylor’s and his wife’s desire – “to live in this large house, and in particular Taylor’s desire for the large lounge for use as a studio, as a whim or fancy.”

Somervell L.J. said, at p. 317:

“I doubt if there is any real ambiguity. ‘Requires’ may, of course, have different senses in different contexts. In its present context it is, I think, satisfied if a landlord establishes, as the landlords here did, that he wants and intends to occupy the premises. Apart from the Act, that is his common law right. If the legislature had intended to place some burden on him of establishing that he was reasonable or not unreasonable in requiring what was his own, plain words could have been used. Of course, if a court came ta the conclusion that the evidence of intention was false, and that the landlord did not genuinely intend to occupy the premises, the claim would fail. There is, however, no trace of any finding to this effect. On this view it is unnecessary to consider the question of ‘reasonableness ‘.”

Miss Shenton, very properly, stresses the importance attached to the proviso in that case, not so much as assisting in the construction of the word “required” and importing intention into it, as in giving the tenant the protection of compensation (which was in fact ordered) if he does not succeed in getting a new lease because the landlord does require the (business) premises for his own occupation. She also calls attention to the different subject matter, to the fact that that case was dealing with business premises, and she argues that there must be a heavier burden on a landlord who seeks to recover possession of a dwelling house than on a landlord who seeks to recover possession of business premises.

She submits, finally, that if there is ambiguity it is wrong to resolve it in a landlord’s favour on the basis that, as indicated by Somervell L.J., the As is interfering with a landlord’s common law rights. The Rent Acts are Acts passed primarily to give the tenant security, to protect him from being ejected or having his rent or mortgage interest increased. So, speaking for myself, if there, were ambiguity in the language of Case 10 I would not have thought that the landlords were in any way assisted by a consideration of the landlords’ common law rights or by any presumption against those rights being cut down by the wording of this Part of the Rent Act.

But in my judgment the language is not ambiguous and Miss Shenton’s submissions do not meet the points: first of all, that the relevant provisions of the Act of 1927 did not qualify the word “required” by “reasonably,” and secondly, that this Act does not, in Part II of Schedule 3, qualify the word “required” by “reasonably” but does qualify the word “required” by “reasonably” in Case 8 in Part I.

That leads me to the inescapable conclusion that “required” in Case 10 does not mean “reasonably” required: it means no more than: bona fide wanted and genuinely intended to be occupied as a residence at once, or at any rate within a reasonable time, but so wanted and intended whether reasonably or unreasonably, even from the landlord’s point of view.

There is force in Mr. Hillier’s submission that the purpose of Case 10 is that a landlord who is living in his own house should be free to take up a post in another part of the country or abroad and let his home to a tenant, secure in the knowledge that when the job is finished and he wants to return home he can, on giving the proper notice, come back and resume life in his own home, without being confronted with all de difficulties which a landlord who, seeks possession under Case 8 has to overcome. If that is the purpose of Case 10, it explains the apparently deliberate omission of the qualifying adverb “reasonably.”

I agree with the way the matter is put in Megarry on the Rent Acts.10th ed. (1967). vol. 1, pp. 309-310. Dealing with “Unrestricted Grounds for Possession” and “Required,” the author says: “In each case the word ‘required’ is used, without being prefixed by ‘reasonably.'” This was in the Cases under the Act of 1965, which the Cases in the Act of 1968 replaced. “The dwelling house must be ‘required’ as a residence for the owner-occupier or for occupation by a minister of religion, or for occupation by an agricultural employee.” That is a reference to what are now Cases 11, 12 and 13 in the present Act.

“Though ‘required’ is ambiguous, the absence of any qualifying adverb removes most of the difficulty. It appears that all that the: landlord need establish is that he genuinely (and not merely colourably) seeks possession in order to use the dwelling house for the stated purpose; and if he does this it seems to be immaterial that other and more reasonable courses of action are open to him. In short, the issue is merely whether the requirement is genuine, not whether it is reasonable: and sometimes the genuine may be far from reasonable.”

For these reasons, the judge was in my opinion wrong in saying that “‘requires’ means more than ‘wants’ and more than bona fide ‘intention.'” and in saying that there was “something objective as well.” There is nothing more objective about this provision than that it must be a genuine requirement and there must be a present intention; and, if the landlord proves that, he is entitled to possession under Case 10.

I would therefore allow the appeal and give the landlords possession of this flat.

BROWNE L.J. I agree that this appeal must be allowed, for the reasons given by Stephenson L.J. I only add a short summary of my own reasons in deference to Miss Shenton’s argument and because of the importance of this case to the parties, especially. I suppose, the defendants, though my own reasons are in substance exactly the same as those Stephenson L.J. has already given.

It is quite plain that the word “require” may have different meanings according to its context. In my judgment, the crucial feature of the context in this case is the contrast between Case 8 and Case 10 in Schedule 3 to the Rent Act 1968. Case 8, as Stephenson L.J. has said, requires the landlord to establish that he reasonably requires possession, and imports some objective standard of reasonableness, however difficult it may be to define that standard. Case 10 omits the reference to “reasonableness,” and I think we must take it that this omission was deliberate on the part of Parliament. I find it impossible to construe “required” in Case 10 as importing any objective standard of reasonableness. Further, I find it impossible to define what this standard could be. The judge said, in a passage which Stephenson L.J. has already read, that it means something

between “wants” and “needs.” Miss Shenton, in her argument, said that it was “half-way between a whim and a dire necessity.” The most convenient statement of the standard under Case 8 was given by Sheriff Blade K.C. in Aitken v. Shaw. 1933 S.L.T. 21, which is quoted in Woodfall on the Law of Landlord and Tenant, 27th ed. vol. 2. p. 1545. It is there said that “perhaps the best definition of reasonable requirement is one that has been given in the Sheriff Court: a genuine present need. something more than desire, although something much less than absolute necessity.” Speaking for myself, I find it impossible to define any standard between this and a genuine desire. I am driven to the conclusion that “required” in Case 10 puts on the landlord the burden of proving no more than that he genuinely desires to have the house as a residence for himself or for the specified members of his family, and genuinely has the immediate intention of using it for that purpose if he does get possession.

The judge, as it seems to me, plainly went further than this. Stephenson L.J. has already read the passages, but I think I should refer again to just a few words. He said : “It ” – that is, the word “requires” – “means more than ‘wants’ and more than bona fide ‘intention’: there is something objective as well.” He then stated the facts in a passage which Stephenson L.J. has already read. It seems to me quite plain that the judge there was applying some sort of standard of reasonableness, and in my view, on the true construction of Case 10, he was wrong in doing so.

I do not wish to add anything to what Stephenson L.J. has already said about the authorities. I entirely agree with the way in which he has dealt with them.

For the reasons he has given, which I have, I am afraid, merely repeated in my judgment, I agree that this appeal must be allowed and an order for possession made.

MEGAW L.J. I also agree. It is to my mind clear that the legislature has deliberately omitted the word “reasonably” in Case 10, and has deliberately inserted it in Case 8. It may well be that there are good reasons of policy within the general policy of the Rent Act 1968 why that distinction should have been drawn. Whether that be so or not, the result of it. I have no doubt, is that in order to comply with paragraph (c) of Case 10 what has to be proved by the person who had previously occupied the dwelling house as his residence and now desires to occupy it again is that he desires to occupy it and that he intends so to do. I need scarcely say that the desire must be a genuine desire: the intention must be a genuine intention: but no more than that.

I also agree that the appeal must be allowed.

Appeal allowed with costs, limited to the amount of legal aid contribution when assessed.

Legal aid taxation of defendants’ costs of appeal.

Order for possession within 8 weeks.

Solicitors: Barnett Co.; P. Ellis & Co.

E. M. W.

[1977] 2 W.L.R. 421

 

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