Abernethie v. A. M. & J. Kleiman Ltd

Date

13 March 1969

Legislation

Landlord and Tenant Act 1954, s.23

Keywords

meaning of 'business'; meaning of 'employment'; meaning of 'trade'; meaning of 'profession'

Counsel

Henry Hill for the plaintiff, David Hacking for the defendant

Solicitors

Fairchild & Co.; Saunders & Co.

Judge

Fairchild & Co.; Saunders & Co.

Court

Court of Appeal (Civil Division)

Reported

[1969] 2 All ER 790; [1970] 1 QB 10

Summary

Section 23 of the Landlord and Tenant Act 1954 states as follows:

"(1) ... this Part of this Act applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes."

Section 23 goes on to say that the term ‘business’ includes a ‘trade, profession or employment’.

The tenant in this case used to be a greengrocer, but business had been bad and he ceased trading. He did, however, continue to run a Sunday School for around 30 children each week. He did not charge them for attending but did collect donations which he sent to a scripture mission.

The Court of Appeal was asked to determine whether the tenant's Sunday School activities constituted a ‘business’ within the meaning of the section of the Landlord and Tenant Act quoted above. They reached the following conclusions:

Decision

• the Sunday School activity was clearly not a 'trade' or a 'profession';
• although it was true to say that the tenant 'employed' himself teaching scripture, it was not carried out in a professional manner, and no remuneration was paid. "Employment" must mean something much more regular than the tenant's activities. It means either employing somebody else or being employed by somebody else; and
• what a man does with his spare time in his home is most unlikely to qualify for the description "business" unless it has some direct commercial consequences.