Housing law

'Separate dwelling'Sometimes, a House of Lords decision entirely overturns the established perception of a line of case law.

Uratemp Ltd v Collins [2001] UKHL 43 is such a case.

The issue was the meaning of letting 'as a separate dwelling', a key requirement for security of tenure under the Rent Acts and the Housing Acts of 1985 and 1988 (see [2001] Gazette, 25 October, 35).The defendant was a long-term resident of a room in a hotel.

Crucially, no cooking facilities were provided but he had a power point and was able to prepared simple meals using his own equipment.

The Court of Appeal [2001] 33 HLR 4 held that the judge below had failed properly to address the issue of whether the defendant was a tenant or a licensee.

The court would have remitted the case for a rehearing but it held (Lord Justice Mance dissenting) that this was unnecessary because even if the defendant was a tenant he could not be an assured tenant.

The lack of cooking facilities meant that he did not have a tenancy of 'a separate dwelling'.

The Court of Appeal's decision was based on the proposition that to comprise a dwelling, the tenant's premises must contain the necessary facilities for living, sleeping and cooking.

As Lord Templeman observed in Westminster CC v Clarke [1992] 2 AC 288, at 298H-299A: 'Under the Rent Acts, in order to create a letting of part of a house as a separate dwelling there must be an agreement by which the occupier has exclusive possession of essential living rooms of a separate dwelling house.

Essential living rooms provide the necessary facilities for living, sleeping and cooking.' The committee rejected the proposition that cooking facilities of any kind are required.

The earlier cases were all decisions on their facts, which had concerned not the issue of whether premises were a dwelling but rather whether the premises had been let 'separately', in the sense that there was no sharing of living accommodation.

In the context of shared accommodation, the committee held that a kitchen would comprise living accommodation 'at least if it is possible to occupy it and not merely cook and wash up in it'.

For the House of Lords, the issue was straightforward.

First, identify the subject-matter of the tenancy agreement.

If this is a house or part of a house, of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date when the proceedings were brought, it was the tenant's home.

If so, it was his dwelling.

If the tenancy agreement grants, in addition, the right to the shared use of other rooms, the question is whether the room or rooms of which he has exclusive possession are his dwelling place or only part of it.

This depends on the nature and extent of the right and the character of the other rooms.

The sharing of accommodation is of limited significance given that both the Rent Act and the Housing Act 1988 confer security on tenants who share living accommodation with other tenants, although sharing with the landlord takes the tenancy out of security.However, the Housing Act 1985 includes no such saving provision.

A tenant who shares a kitchen with his landlord has no security, nor can a tenant have security under the 1985 Act if he shares a kitchen with another tenant.

By Andrew Dymond, Arden Chambers, London