Tilling v Whiteman

It is not necessary for all joint owners to require a dwelling as their residence for Case 10 of Part II of Schedule 3 to the Rent Act 1968 to operate. Rather, where a person who occupied the dwelling as his or her residence let it on a regulated tenancy and requires it as a residence, an order for possession is mandatory even if that person was a co‑owner who acted jointly in letting.

The appeal concerns the construction of Case 10 of Part II of Schedule 3 to the Rent Act 1968. The appellant and a co‑owner jointly owned and had at different times occupied a cottage. The co‑owners jointly let the cottage on a regulated tenancy. The tenant refused to surrender possession at the end of the term. The county court decided a preliminary point of law for the defendant. The Court of Appeal, by majority, dismissed the appellant's appeal on that point. The House of Lords considered whether Case 10 requires that the dwelling be required as a residence by all joint owners or whether it may be satisfied by one co‑owner who occupied and let the house and who now requires it as a residence.

(1) The appeal is allowed. The Court prefers the construction that Case 10 may be satisfied by a single owner‑occupier even where the legal title is held jointly, provided the statutory conditions are met by that owner‑occupier. (See paras [Lord Wilberforce] and [Lord Salmon].)

(2) The statutory language must be read so as to effect the parliamentary purpose. Case 10 emphasises occupation and the right to resume residence. Ownership is subsidiary to the statutory purpose of enabling return of an occupier who lets temporarily. A strict conveyancing reading is not required. (See paras [Lord Wilberforce]; [Lord Salmon].)

(3) The Court rejects reliance on McIntyre v Hardcastle as decisive for Case 10. Case 8 (and McIntyre) differs in language and purpose from Case 10. The House of Lords declines to follow McIntyre on that point. (See paras [Lord Wilberforce]; [Lord Salmon].)

(4) The matter is remitted to the Canterbury County Court to determine the factual issues that were not tried below, namely whether the agreed facts satisfy the statutory conditions. (See Lord Wilberforce and Lord Salmon.)

(5) Costs in this House and in the Court of Appeal are ordered against the respondent, subject to the court's usual discretion and noting the respondent's lack of legal aid. (See Lord Wilberforce; Lord Salmon; Lord Scarman.)

• House of Lords — appeal allowed; construction of Case 10 settled in favour of single owner‑occupier satisfying conditions; remitted to county court.
• Court of Appeal — appeal dismissed by majority (prior decision reversed).
• Canterbury County Court — initial decision for the defendant on a preliminary point of law; factual issues not determined and remitted for trial.