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Block of flats is not a 'house'

Supreme Court to rule on similar case later this year

17 May 2012

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A Victorian purpose-built block of flats opposite Sloane Square tube station in London is not a ‘house’ for enfranchisement purposes, appeal judges have ruled.Lord Justice Lewison said there was a “clear consensus of judicial opinion” that the block could not reasonably be called a ‘house’ for the purposes of section 2(1) of the Leasehold Reform Act 1967.

He said the building dated from 1888, and consisted of six “residential suites”, a housekeeper’s flat and three small shops.

Delivering the leading judgment in Magnohard v Earl Cadogan and Cadogan Estates [2012] EWCA Civ 594, Lewison LJ said the trial judge, Her Honour Judge Marshall, was taken through a large number of authorities that discussed the meaning of the word ‘house’.

But Judge Marshall had described the point as a “short one” and said her task was to arrive at a conclusion about the character of the building.

“She said that if the building could ‘equally reasonably be called a ‘house’, but could equally reasonably be called something else’, then it fell within section 2(1).

“But if you could only call it ‘a house’ by straining the concept or straining the use of language, then it would not be reasonable to call it a house. In that event it would be outside the definition.”

Lewison LJ quoted paragraph 116 of Judge Marshall’s ruling: “When I ask myself what this building is, my immediate reaction is ‘it’s a block of flats’,” Judge Marshall said.

“It is not a house divided into flats. It is constructed and used as a block of flats. As I know (and I do) what the features of the building are, if I were to ask someone ‘what would you call that building?’ and they were to respond ‘a house’, my eyebrows would naturally raise and I would find this odd.”

Lewison LJ said the “clear consensus” of judicial opinion was that a purpose-built block of flats cannot reasonably be called ‘a house’.

“It is true that some judges have referred to tower blocks and others to large purpose-built blocks, but in my judgment the underlying principle is clear.

“It is also true that none of these observations is binding ratio, but such is the strength and consistency of the consensus that it would in my judgment be wrong for us to depart from it.”

Lewison LJ said the trial judge was “amply justified” in her conclusion and dismissed Magnohard’s appeal.

The Master of the Rolls, Lord Neuberger, said the question was not “whether the premises could reasonably be called something other than a house” or “whether the premises could conceivably be called a house”, but whether the premises could reasonably be called a house.

Lord Neuberger said that, unless there was “binding authority to the contrary”, such premises could not reasonably be called a house, as at September 2010, when the appellant served a notice to acquire the freehold.

“A building constructed, laid out and used as a block of substantial, self-contained flats throughout its 120 years of existence cannot reasonably be called a house – at least in the absence of very unusual factors.”

The Master of the Rolls agreed that the appeal should be dismissed, as did Lord Justice Longmore.

Lord Neuberger added that the Supreme Court would be considering a similar case, Hosebay [2010] 1 WLR 2317, in around ten weeks’ time.

He said that if Magnohard appealed to the Supreme Court, the Court of Appeal should “respectfully suggest” that the matter was dealt with quickly, in case the Supreme Court wanted to hear the case with Hosebay.

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