Property Holding Co Ltd v Mischeff

 

Property Holding Co Ltd v Mischeff

LANDLORD AND TENANT; Rent

KING’S BENCH DIVISION

HENN COLLINS J

25, 28 FEBRUARY 1946

Landlord and tenant – Rent restriction – Furnished letting – “Attendance” – “Furniture” – Whether substantial part of rent for attendance and use of

furniture – Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (c 17), s 12(2), proviso (i) – Rent and Mortgage Interest Restrictions Act, 1923 (c

32), s 10.

The defendant was sub-tenant of a flat in London until 29 September 1944, when his underlease expired. Thereafter he continued in possession, claiming that,

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as the rateable value of the premises was less than £100, he was entitled to continue in occupation as a statutory tenant. The rent paid by the defendant was

£275 a year until October 1943, when it was increased to £375 a year. In an action brought by the plaintiffs to recover possession of the premises the question

for determination was whether or not the premises fell within the exception introduced by the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920,

s 12(2), proviso (i) as amended by sect 10 of the 1923 Act. The plaintiffs relied on the fact that they provided both attendance and furniture. The attendance

was of four kinds: the presence of hall porters, the removal of refuse, the cleaning and servicing of the halls, stairways and passages common to all tenants,

and the provision of central heating and constant hot water. The furniture was of two categories—that which furnished the parts of the building common to all

tenants (carpets, curtains and a settee) and articles of which the defendant had exclusive use within the flat. The flat was furnished by the plaintiffs with

linoleum or rubber floorcloth, a kitchen cabinet for kitchen utensils, a refrigerator (the electric current for which was supplied by the plaintiffs free of charge)

and a fitted bathroom cabinet and mirrors:—

Held – (i) none of the items relied on by the plaintiffs constituted “attendance” within the meaning of sect 10 of the 1923 Act.

(ii) the articles of furniture in the parts of the building common to all tenants were, for the purposes of the Rent Restrictions Acts, amenities and not

“furniture” of which the tenant had the use.

(iii) the articles in the flat of which the defendant had exclusive use were “furniture” within the meaning of sect 10 of the 1923 Act, and as the amount of

rent which could be fairly attributable to the use of that furniture formed a substantial portion of the whole rent, the premises were therefore not controlled and

the plaintiffs were entitled to possession.

Notes

This is a case of very great importance to the landlords and tenants of service flats. While the articles in question may admittedly be regarded as “furniture”

within the dicta in Gray v Fidler it is difficult to describe them as 􀂭 406􀀉 “something substantial in the way of furniture” within the decision in Crane v Cox

(1923) 92 LJKB 544. Such articles as fitted mirrors, refrigerators and kitchen cabinets are commonly expected in good class service flats and no tenant of

such a flat would regard himself as being, in popular language, the tenant of a “furnished flat.” The question of furniture and furnishings of that part of the

building used in common with the other tenants does not appear to have been previously decided, but it would seem to be reasonable to regard these as

amenities which they are held to be, and not furniture for which rent is paid.

As to Premises Let at Rent including Attendance and Use of Furniture, see Halsbury, Hailsham Edn, Vol 20, p 314, para 370; and for Cases, see Digest,

Vol 31, pp 559–561, Nos 7068–7084.

Case referred to in judgment

Gray v Fidler [1943] 2 All ER 289, [1943] 1 KB 694, 169 LT 193.

Action

Action by the lessor to recover possession of a flat. The facts are fully set out in the judgment.

J Scott Henderson KC and R Stock for the plaintiffs.

F A Amies (for W A L Raeburn) for the defendant.

Cur adv vult

28 February 1946. The following judgment was delivered.

HENN COLLINS J. The defendant was in possession as sub-tenant of flat No 19, Albion Gate, down to 29 September 1944, on which date his underlease

expired. Thereafter he has continued in possession and claims the right to do so on the ground that the rateable value of the premises being, as in fact it is, less

than £100 the premises are controlled by the Rent and Mortgage Interest Restriction Acts, 1920 to 1939, and that he is therefore entitled to continue in

occupation as a statutory tenant. The rent which the defendant was paying under the sub-lease was £275, which was the rent which his lessor paid to the

plaintiffs until Oct 1943, when it was increased, as from March 1944, to £375. The covenants and all other conditions are the same in the head lease and the

underlease.

The question for determination is whether the premises in question are or are not controlled, and that in turn depends upon whether they fall within the

exception introduced by the Rent and Mortgage Interest Restriction Act, 1920, s 12(2), proviso (i), as amended by sect 10 of the Act of 1923. The effect of

those two sections, read together, is that premises which would otherwise fall within the control do not do so if bona fide let at a rent which includes payments

in respect of attendance or the use of furniture, and the amount of rent which is fairly attributable to the attendance or the use of furniture, regard being had to

the value of the same to the tenant, forms a substantial portion of the whole rent.

The plaintiffs rely upon the fact that they provide both attendance and furniture. The attendance is of four kinds—the presence of hall porters, the

removal of refuse, the cleaning and servicing of the halls, stairways and passages common to all tenants, and the provision of central heating and constant hot

water. These latter have been held by a decision binding upon me [see Engvall v Indeal Flats Ltd (1945) 1 All ER 230] not to constitute attendance, and I

therefore dismiss them from consideration without comment, beyond saying that the amount of the rent fairly attributable to them, having regard to the value

of them to the tenant, would form a substantial portion of the whole rent.

Taking next the presence of the hall porters, the plaintiffs undertake to use every precaution to employ no one but a competent and trustworthy person as

resident porter, but beyond that their obligation does not go. Though the porter may, and no doubt does, make himself obliging to the tenants, he has no duty

to perform for them, and I do not think that such attendance as he chooses to give can be said to be any part of that for which the tenant pays his rent.

Much the same considerations apply to the removal of refuse. The receptacles are in practice removed from the back doors of the flats, by someone

employed by the plaintiffs, to the point of collection by the local authority, but this service is not stipulated for in the lease, and the tenant would have no valid

ground of complaint if he was left to make his own arrangements for this to be done. I do not think “attendance” can be extended to anything to which the

tenant is not contractually entitled.

I take the same view with regard to the servicing, including the lighting and heating, of the parts of the building common to all the tenants. These do not,

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in my judgment, constitute attendance within the meaning of the section; 􀂭 407􀀉 nor, if this is material, as I think it is, does the lease make any provision for

them.

That brings me to the use of the furniture. This may be divided into two categories: that which furnishes the parts of the building common to all tenants,

and things of which the tenant has the exclusive use within the flat. Whether these latter are “furniture” I will consider in a moment, but, taking first the

furnishings (carpets, curtains, and a settee) the use of which he shares with others, they are in no sense let to the tenant, nor has he any contractual right to

insist that they shall be there, and I do not think that in any real sense any part of what he pays as rent is attributable to them. They are no doubt amenities by

which the landlords attract tenants, and equally, no doubt, the landlords expect to recoup their expenses out of the total rents received, but this is equally true

of, say, mahogany doors or tasteful and expensive decorations. The fact that the landlords have chosen to have carpets, which can fairly be called furniture on

the stairs and passages, instead of having the stairs and passages made of suitable material which would not require to be covered, does not seem to me to alter

the principle. They remain, for the purposes of the Rent Acts, amenities and not furniture of which the tenant has the use.

The other category comprises certain articles in the flat, of which the tenant has the exclusive use. The flat is furnished by the plaintiffs with linoleum in

the three bedrooms, the kitchen and the maid’s bathroom, and rubber floorcloth in the best bathroom and the lobby, also with a kitchen cabinet in which to

keep all kitchen utensils, and a refrigerator, which is plugged to the wall and which is enclosed in the cabinet. The electric current for the refrigerator is

supplied without charge by the plaintiffs. There is also supplied by the plaintiffs a fitted bathroom, cabinet and mirrors. These are all in some degree fixed to

the freehold, but this does not prevent them from being furniture if they are so in the popular usage of that word: see Gray v Fidler. They are all, in my

judgment, things which tenants of such flats as these would themselves supply, in one form or another, if the landlord did not, and if they could get them, and

they are all, in my judgment, within what is today comprehended in the word “furniture.” The cost of them today is somewhere about £200. I find that 15 per

cent on that sum, namely £30 per annum, is fairly attributable to the use of them and of that value to the tenant. Of the total rent of £275, £73 is attributable to

rates, leaving £202 as rent for the premises and furniture. Is £30 a substantial proportion of £202? I think it is, and I therefore hold that the premises in

question are not controlled. It follows then that the plaintiffs are entitled to possession and to mesne profits as claimed.

Judgment for the plaintiffs with costs.

Solicitors: Markby, Stewart & Wadesons (for the plaintiffs); J M Menasse and Co (for the defendant).

P J Johnson Esq Barrister.

[1946] 1 All ER 408