Pirabakaran v Patel & Anor

Section 2 of the Protection from Eviction Act 1977 applies where premises are let wholly or partly as a dwelling. A lease for mixed residential and business purposes therefore cannot be forfeited by peaceable re-entry while a person lawfully resides in any part of the premises. The landlord must enforce the right of forfeiture through court proceedings.

This construction follows the established meaning of “let as a dwelling”, the close relationship between sections 2 and 3, and Parliament’s express exclusion of mixed business tenancies from section 3. The same expression may bear a different meaning in section 5 because that provision has a different legislative origin and purpose. The construction is also compatible with article 8 procedural safeguards for the home.

The tenant held a lease of a ground-floor shop and residential accommodation above. He operated the shop and lived in the flat. After rent fell into arrears, the landlords changed the shop locks, relying on a contractual right to re-enter any part of the premises in the name of the whole.

H.H. Judge Oppenheimer held in Brentford County Court that the premises were not “let as a dwelling” for section 2 of the Protection from Eviction Act 1977. He therefore held that the lease had been lawfully forfeited and ordered possession of the flat. The tenant appealed.

The central question was whether section 2 requires a landlord to obtain a court order before forfeiting premises let and occupied partly as a home and partly for business.

1. Appeal allowed. Section 2 of the Protection from Eviction Act 1977 prohibits enforcement of the right of forfeiture otherwise than through court proceedings where premises are let wholly or partly as a dwelling and a person lawfully resides in them. It therefore covers leases for mixed residential and business purposes. The landlords’ peaceable re-entry into the shop did not lawfully forfeit the lease.

2. Wilson LJ held that “let as a dwelling” had acquired an established, generous meaning before the predecessor of section 2 was enacted as section 31 of the Rent Act 1965. The identical wording retained that meaning upon consolidation. Decisions giving the phrase a narrower meaning in other statutory contexts did not change its meaning for section 2.

3. Sections 2 and 3 have the same legislative origin and closely related purposes. Section 8 expressly excludes tenancies protected by Part II of the Landlord and Tenant Act 1954, including mixed-purpose business tenancies, from section 3. That exclusion would be surplusage unless “let as a dwelling” would otherwise include those tenancies. This reasoning applied by reference to section 2, which contains no corresponding exclusion.

4. National Trust for Places of Historic Interest or Natural Beauty v Knipe [1998] 1 WLR 230 did not govern section 2. It concerned section 5, which has a different statutory origin, lies in a different Part and regulates notices to quit. It also concerned premises let as an agricultural holding rather than an express mixed letting of shop and residential accommodation.

5. The result accords with the policy that a person should not lose a home through unannounced self-help re-entry. Questions about entitlement to forfeit and relief from forfeiture should ordinarily be decided before eviction.

6. The construction was further supported by section 3 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights 1950. Requiring prior court proceedings supplies procedural safeguards for the home. Sir Peter Gibson agreed with Wilson LJ’s reasoning and the disposition. The possession order was to be set aside, subject to further argument.

1. Court of Appeal (Civil Division): The appeal was allowed. The court held that section 2 of the Protection from Eviction Act 1977 covered the mixed residential and business letting and proposed that the possession order be set aside: [2006] EWCA Civ 685.

2. Brentford County Court: H.H. Judge Oppenheimer held that the premises were not “let as a dwelling”, that peaceable re-entry had forfeited the whole lease and that relief from forfeiture should be refused. He ordered possession of the flat and damages for trespass and dismissed the tenant’s claim.