Category: Landlord and Tenant

Remblance v Octagon Assets Ltd: CA 17 Jun 2009

A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, and should provide similar relief to a guarantor.
Held: (Mummery LJ dissenting) The appeal succeeded. The tenant complained of an interference with its right to quiet enjoyment, and its claim was arguable. A right of set off was expressly excluded by the lease, and therefore the guarantor had to rely in the judge’s discretion. The judge would have granted such relief but for the fact that the guarantor was in a position to pay. He was wrong to do so: ‘In view of the fact that JBR has a counterclaim which may exceed the arrears of rent, it is likely, assuming that the Insolvency Rules applied to it, that it would be able successfully to rely upon rule 6.5(4) (a) to set the statutory demand aside because it would be unjust not to do so. Having regard to the co-extensive nature of the guarantor’s liability, and the underlying need for comparable treatment being afforded under rule 6.5(4) (d), justice demands similar treatment for Mr Remblance.’

Judges:

Lord Justice Ward, Lord Justice Mummery and Lord Justice Dyson

Citations:

[2009] EWCA Civ 581, Times 27-Jul-2009, [2009] WLR (D) 196, [2010] Bus LR 119, [2009] NPC 79, [2009] BPIR 1129

Links:

Bailii, WLRD

Statutes:

Insolvency Rules 1986 6.5, Insolvency Act 1986 267(2)(c)

Jurisdiction:

England and Wales

Citing:

Cited – Altonwood Ltd v Crystal Palace FC (2000) Ltd ChD 7-Mar-2005
The landlord claimed arrears of rent and other payments due under the lease of the football ground occupied by the club. A licence had been granted for the accomodation to be shared with Wimbledon Football Club. The rent varied with the gate . .
Cited – Chan v Appasamy 2008
The test for the exercise of the discretion to set aside a statutory demand is whether there are circumstances which would make it unjust for the statutory demand to give rise to insolvency consequences in the particular case. . .
Cited – Budge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Continental Illinois National Bank and Trust Company of Chicago v John Paul Papanicolaou (The Fedora) CA 1986
The court considered the effect of a guarantee clause.
Held: The provisions of the guarantee went to timing and cash flow rather than liability. A term excluding a right of set-off is not to be treated in the same way as an exclusion clause. . .
Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Cited – Garrow v Society of Lloyd’s ChD 18-Jun-1999
Lloyds sought to claim against the Names on a ‘pay now, sue later’ clause.
Held: The power to order a stay of execution for possession remained and could be exercised in an appropriate case even though a cross-claim under which it was . .

Cited by:

Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 28 July 2022; Ref: scu.347014

Constance Long Term Holdings Ltd v Cavendish (Duke of Westminster): TCC 29 Nov 2012

The Claimant, the freehold owner of a Property in London which is within the Grosvenor Estate, sought declarations concerning the entitlement of the Defendant to withhold consent under an Estate Management Scheme in relation to a particular aspect of work which the Claimant proposes to carry out to the Property.

Judges:

Ramsey J

Citations:

[2012] EWHC 3434 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 26 July 2022; Ref: scu.466448

London District Properties Management Ltd and Others v Goolamy and Another: Admn 16 Jun 2009

The court was asked: ‘Does section 13(1)(a) of the Housing Act 1988 have the effect of enabling a landlord to seek to increase the rent payable under a statutory periodic tenancy beyond the levels contemplated in a rent review clause in the assured tenancy that preceded it, even though that clause purports to govern the position during the currency of both the assured tenancy and any subsequent statutory periodic tenancy?’

Judges:

Burnett J

Citations:

[2009] EWHC 1367 (Admin), [2009] NPC 77, [2009] 2 P and CR DG17, [2010] 1 P and CR 1, [2009] L and TR 25, [2010] 1 WLR 307, [2009] 38 EG 110

Links:

Bailii

Statutes:

Housing Act 1988 13(1)(a)

Jurisdiction:

England and Wales

Housing, Landlord and Tenant

Updated: 26 July 2022; Ref: scu.346924

Dorchester Studios (Glasgow) Ltd v Stone: HL 1975

The House was asked whether an irritancy clause was unreasonable.

Citations:

1975 SC (HL) 56

Jurisdiction:

Scotland

Cited by:

Applied – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 July 2022; Ref: scu.234725

Crane v Morris: 1965

A tenancy at will can be determined by either party on his expressly or impliedly intimating to the other his wish that the tenancy should be at an end. The issuing of a writ claiming possession is a sufficient demand for possession to bring the tenancy to an end. The statutory minimum period of four weeks’ notice to quit in respect of premises let as a dwelling does not apply to a tenancy at will.

Citations:

[1965] 1 WLR 1104, [1965] 3 All ER 77

Statutes:

Protection from Eviction Act 1977 5

Jurisdiction:

England and Wales

Cited by:

Cited – Banjo v London Borough of Brent CA 17-Mar-2005
The tenant had occupied the premises under a long lease which expired by effluxion of time. The landlord failed to take any steps to retake possession, and the tenant continued as a tenant at will, paying no rent. The landlord eventually issued . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 July 2022; Ref: scu.223957

Shelley v United Artists Corporation Limited: CA 1989

There was a subletting arrangement. United Artists, who were the sub-tenant’s competent landlord under Part II of the 1954 Act, served a notice on the tenant, and then a further notice on the head landlord. The result of second notice was that United Artists ceased to be the competent landlord of the tenant. The tenant did not know, and served a Counter-Notice on, and mistakenly issued proceedings against United Artists. They should have targeted the head landlord, who was now the competent landlord. United Artists then took a fresh over-riding lease, as a result of which they became, once again, the competent landlord of the tenant.
Held: United Artists were estopped from denying that they were the competent landlord at the time the tenant served the notice and issued the proceedings, partly because they were under an obligation to tell the tenant that they had ceased to be the competent landlord, and partly because they must have appreciated that the tenant was labouring under a misapprehension.

Judges:

Dillon Russell and Butler-Sloss LJJ

Citations:

(1989) 60 P and CR 241, [1990] EGLR 103

Statutes:

Landlord and Tenant Act 1954

Jurisdiction:

England and Wales

Cited by:

Cited – Lay and others v Ackerman and Another CA 4-Mar-2004
Notices had been served by tenants under the Acts. The properties were on a large estate where the freeholds had been divided and assigned to different bodies, and there were inconsistencies in identifying the landlords. The landlords served a . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Estoppel

Updated: 26 July 2022; Ref: scu.214627

Pittalis v Grant: CA 1989

A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where the other party had had an opportunity of meeting it, had not acted to his detriment by reason of the earlier omission to take the point, and could be adequately compensated in costs.
Nourse LJ said: ‘Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first, that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court. Otherwise, in the name of doing justice to the other party, we might, through visiting the sins of the adviser on the client, do an injustice to the party who seeks to raise it.’

Judges:

Nourse LJ

Citations:

[1989] QB 605

Statutes:

Rent Act 1977

Jurisdiction:

England and Wales

Citing:

Cited – Ex parte Firth , In re Cowburn 1882
The court considered the practice where a point of law was raised first only on appeal: ‘the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would . .
Cited – Macdougall v Knight 1889
Practice where an issue of law is raised for the first time on appeal. . .
Cited – The Tasmania 1890
The court described how to deal with issues of law raised only on appeal. Lord Herschell said: ‘My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously . .
Cited – Maunsell v Olins HL 1975
The House considered whether a sub-tenant could claim protection under the 1968 Act. This depended on the interpretation of the word ‘premises’ in the context of a sub-tenancy of a cottage on a farm let under an agricultural tenancy.
Held: . .

Cited by:

Cited – King v Jackson (T/a Jackson Flower Company) CA 16-Jul-1997
The defendant appealed an award of pounds 11,000 damages for unlawful eviction of his tenant. The tenant had found herself unable to pay the rent and had given notice to quit. She was then told to leave immediately. The judge awarded statutory . .
Cited – Earl Cadogan, Cadogan Estates Limited v Search Guarantees Plc CA 27-Jul-2004
The tenant of a house had subdivided it and let off the flats. He sought to acquire the freehold.
Held: Where none of the subtenants themselves had qualifying leases, the head tenant could be in sufficient occupation to be able to buy the . .
Not Followed – Wellcome Trust Ltd v Hamad; Ebied and Another v Hopkins and Another; Church Commissioners for England v Baines CA 30-Jul-1997
There was a tenancy for mixed residential and business purposes and, with the landlord’s permission, the tenant sublet one of the residential flats within the premises to the defendant, who enjoyed protection under the Act of 1977.
Held: . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Crane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another CA 3-Jul-2008
Arden LJ considered the principles to be applied when considering whether a party to civil litigation should be allowed to appeal a trial judge’s decision on the basis that a claim, which could have been brought before him but was not, would have . .
Cited – Brown-Quinn and Another v Equity Syndicate Management Ltd and Another CA 12-Dec-2012
The court was asked as to the requirement for a client to be given free choice of a lawyer in the context of legal expenses insurance. The various claimants insured by the defendants had sought to instruct solicitors not on the respondent’s approved . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 July 2022; Ref: scu.196697

Ramjotton v Patel: UTLC 8 Feb 2021

Landlord and Tenant – Service Charges – Administration Charge – Contractual Liability – costs – paragraph 5A of Schedule 11 to the Commonhold and Leasehold Reform Act 2002 – reasonableness of administration charges

Citations:

[2021] UKUT 19 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 25 July 2022; Ref: scu.658044