Latest Court of Appeal Decision on “what is a house?”
On 2 May 2013, the Court of Appeal gave judgment in Henley v Cohen [2013] EWCA Civ 480, the first case on this vexed subject to reach the Court of Appeal since the Supreme Court decided Hosebay v Day [2012] 1 WLR 884, in October 2012.
The case concerned a mixed-use property comprising a shop on the ground floor with a flat above, which the tenants sought to enfranchise under the Leasehold Reform Act 1967. The appellant tenants argued that the County Court was wrong to distinguish the decision of the House of Lords in Tanden v Trustees of Spurgeons Homes [1982] AC 755, in which a shop with a single flat above was held to be a house "reasonably so called".
The Court of Appeal dismissed the appeal and concluded that the building in this case could not reasonably be called a house. The Court of Appeal also accepted the landlord's argument that the works carried out by the tenant to convert the upper floor from a large store room into a flat, immediately prior to giving notice under the 1967 Act, were carried out in breach of the alterations covenant in the tenants’ lease and that even if the building could reasonably be called a house, the tenants should not be entitled to rely on their breach of covenant in order to invoke the benefits conferred by the Act.
Adam Rosenthal acted for the successful landlord in the County Court and in the Court of Appeal.
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