Tilling v Whiteman

Under Case 10 of Part II of Schedule 3 to the Rent Act 1968, a joint owner who occupied a dwelling-house as a residence and participated with another owner in letting it may qualify as the owner-occupier. Possession may therefore be recovered where that owner alone requires the house as a residence. The provision does not require every joint owner to require residence.

Where the statutory conditions are satisfied, section 10 requires the court to order possession. In choosing between reasonably admissible constructions, the court should adopt the meaning which best gives effect to the legislative intention. Case 10 emphasises occupation and residence; ownership has a subsidiary role.

Two joint owners let their cottage to the respondent for a fixed term on a regulated tenancy. Both signed a notice stating that possession might be recovered under Case 10 of Part II of Schedule 3 to the Rent Act 1968. After the term expired, the respondent remained in occupation. The owners sought possession because one of them wished to resume residence.

The county court decided as a preliminary point that Case 10 was unavailable unless the dwelling-house was required as a residence for both joint owners. A majority of the Court of Appeal dismissed the first owner's appeal; Eveleigh LJ dissented. The central issue before the House was whether one joint owner who had occupied the house and participated in its letting could recover possession when she alone required it as a residence.

1. Appeal allowed by a majority of four to one. Lord Wilberforce delivered the leading speech. Lord Diplock and Lord Scarman agreed with his reasons, while Lord Salmon reached the same conclusion in a separate speech. Lord Fraser of Tullybelton dissented. The case was remitted to Canterbury County Court for determination of the outstanding facts.

2. Per Lord Wilberforce, Case 10 admits the construction which best carries out its legislative intention. Its purpose was to encourage people temporarily leaving their homes to make them available for letting, while assuring them that they could regain possession upon returning. The provision therefore emphasises the person who occupied and later requires the dwelling-house. Ownership is subsidiary. A joint owner who occupied the property could accordingly be said to have let it, although the other joint owner had to join in the effective letting.

3. Per Lord Salmon, the expression “owner-occupier” is shorthand for a person who occupied the dwelling-house as a residence and let it on a regulated tenancy. A person does not cease to have done an act merely because another person did it jointly. The notice condition was satisfied because both landlords signed the Case 10 notice. If the appellant proved that she required the house as her residence, all the statutory conditions could therefore be met.

4. Per Lord Wilberforce and Lord Salmon, McIntyre v Hardcastle [1948] 2 K.B. 82 did not govern the construction of Case 10. It concerned the materially different wording and purpose of the provision later reproduced as Case 8. Case 8 identifies the landlord both as the person who let the house and as the person requiring it, whereas Case 10 focuses upon the former occupier.

5. Lord Fraser dissented. In his view, the person who let the house was the composite body of both joint owners. The requirement for residence therefore had to apply to both. He considered that the protective policy of the legislation could not justify departing from its precise language.

6. Lord Wilberforce and Lord Scarman criticised the determination of the case on a preliminary point of law before the simple factual issues had been tried. The respondent was ordered to pay the appellant's costs in the House and the Court of Appeal.

• House of Lords: By a majority of four to one, allowed the appeal, rejected the Court of Appeal majority's construction of Case 10, and remitted the proceedings to Canterbury County Court for trial of the outstanding factual issues.
• Court of Appeal: Dismissed the first owner's appeal by a majority. Stephenson and Shaw LJJ held that the house had to be required as a residence for both joint owners. Eveleigh LJ dissented.
• Canterbury County Court: Determined a preliminary point in the tenant's favour without resolving the disputed facts. It held that Case 10 did not apply where only one joint owner required the dwelling-house as a residence.