Henley v Cohen [2013] 2 P&CR 10 (CA)

1.1              The debate in case law about what constitutes a house for the purposes of the Leasehold Reform Act 1967 (‘the 1967 Act’) rages on. Readers may be familiar with the combined appeals in Hosebay v Day; Lexgorge v Howard de Walden [2012] 1 WLR 2884 (SC), in which the Supreme Court was asked to address this question.

1.2              The test in Section 2(1) of the Leasehold Reform Act 1967 is that a to qualify for a the right to enfranchise a building should be a house, and the definition of this is as follows:

“…any building designed or adapted for living in and reasonably so called, notwithstanding that the building…was or is not solely designed or adapted for living in…”

1.3              In both of these cases the properties had an element of mixed use or comprised a number of units of hostel type accommodation within the envelope of a larger building held under the terms of a single long lease and claimed to be a ‘house’ by the tenants for the purposes of the 1967 Act. In both of these cases the claims failed with the Supreme Court (Lord Carnwarth) deciding that the use of the property as at the date of the notice of claim was determinative.

1.4              In Henley v Cohen there was an element of mixed use, as the property comprised a shop with a flat above it. The case of Tandon v Trustees of Spurgeons Homes [1982] AC 755 held that a shop with a flat above (held under a single long lease) could be enfranchised. However, the decision was a 3:2 majority in the House of Lords[1].

1.5              In Henley the distinguishing feature was that the flat above was recently created and could not be accessed from the shop below. The property had also been purposely converted to bring it within the ambit of the 1967 Act. The Court of Appeal declined to find that the property qualified for the right to enfranchise.