Category: Landlord and Tenant

Zuckerman v Calthorpe Estates: UTLC 18 Nov 2009

UTLC LEASEHOLD ENFRANCHISEMENT – flats – price – deferment rate – whether Sportelli starting point to be adjusted to reflect different growth rates and different rates of deterioration and obsolescence in West Midlands and Prime Central London, and increased management burdens with flats – appeal allowed – deferment rate increased from 5% to 6%.

Citations:

[2009] UKUT 235 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 02 June 2022; Ref: scu.415045

Howard De Walden Estates Ltd and Another v Aggio and others; Earl Cadogan and others v 26 Cadogan Square Ltd: CA 24 May 2007

Note: ‘In accordance with the well established principles of stare decisis the decisions of a higher court are binding on judges sitting in a lower court. This principle serves the interests of legal certainty: see Broome v. Cassell and Co [1972] AC 1027 at 1054. The needs of litigants and their advisers to know where they stand is not served if a lower court is free to create a conflict of authority by declining to follow the relevant decision of a higher court.
The County Court is a lower court than the High Court in the hierarchy of the legal system of England and Wales and is bound by the decisions of the High Court, as well as those of courts above; see Cross on Precedent in English Law at page 123 which refers to an almost invariable assumption to this effect.
The Chancery Division of the High Court does not cease to be a higher court than the County Court when it exercises the same first instance jurisdiction as has been conferred on the County Court by the Leasehold Reform Acts. The fact that both the High Court and the County Court are courts of first instance exercising the same statutory jurisdiction does not justify the creation of an exception to the general rule of stare decisis stated in paragraph 92 above.’

Judges:

Mummery LJ, Arden LJ, Jacob LJ

Citations:

[2007] EWCA Civ 499, [2007] 3 All ER 910, [2007] 23 EG 165, [2007] NPC 69, [2008] HLR 1, [2008] 1 P and CR 22, [2007] L and TR 29, [2008] Ch 26, [2007] 3 EGLR 141, [2007] 3 WLR 542

Links:

Bailii

Statutes:

Leasehold Reform, Housing and Urban Development Act 1993, Commonhold and Leasehold Reform Act 2002 130

Jurisdiction:

England and Wales

Cited by:

Appeal from – Cadogan and others v 26 Cadogan Square Ltd, Howard de Walden Estates Limited v Aggio and others HL 25-Jun-2008
In each case all or part of a building was let by a head-lease and then as self-contained units under sub-leases. The head lessees had served notices under the 1993 Act requiring new leases. The freeholder denied that they were qualifying tenants, . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 02 June 2022; Ref: scu.252526

Cresswell v Hodgson: CA 1951

The landlord sought possession. The tenant had a controlled tenancy. L offered the tenant another house (one he had built) as alternative accommodation. The rent was higher. The landlord was under pressure from his bank and wanted capital to pay off his overdraft. He wanted to sell the tenanted house with vacant possession at an unrestricted price, whereas the maximum price at which he could sell the house he had built was restricted.
Held: The landlord’s appeal was dismissed, the court holding that the judge had taken into account the factors he should have done. The judge had properly considered both sides – the positions of both the landlord and the tenant, and found the offered alternative accommodation suitable but that it would not be reasonable to make the order: its making would represent nothing but loss to the tenant and nothing but very substantial gain to the landlord. As to the reasonableness of making an order for possession, Parliament had given the judge in the county court a very wide discretion, and that the Court of Appeal should not say anything that restricted the circumstances he should take into consideration. Denning LJ thought that the word ‘reasonable’ meant ‘reasonable having regard to the interests of the parties concerned and also reasonable having regard to the interests of the public’.
Somervell LJ said: ‘I think the words of the section themselves indicate that the county court judge must look at the effect of the order on each party to it. I do not see how it is possible to consider whether it is reasonable to make an order unless you consider its effect on landlord and tenant, firstly, if you make it, and secondly, if you do not. I do not think we should say anything which restricts the circumstances which the county court judge should take into consideration. I think he is entitled to take into consideration that this is a case where the landlord is making a pecuniary gain. That might in other cases be a fact in the landlord’s favour, and it might be thought reasonable that he should be given the chance of making pecuniary gain.’
Singleton LJ said: ‘It seems to me that if a county court judge, in a case of this kind, found that the landlord was in dire financial straits – and landlords sometimes are – whereas the tenant was well-to-do, that would be a matter which the county court judge could consider. Equally, if he found that the tenant would be put into grave difficulty by the making of the order whereas the landlord would not be in any difficulty, because he had more means, again I think that is a matter for consideration.’ Because the tenant’s employment gave him a rent allowance that would cover the increased rent at the alternative accommodation, he was in a much better position than most tenants and that ‘it may well be that many persons might not have come to the conclusion at which the county court judge arrived.’ But as the question of fact was for the judge, and he had not erred in principle or made a mistake in law, his decision must be upheld.

Judges:

Somervell LJ, Denning LJ, and Singleton LJ

Citations:

[1951] 1 All ER 710, [1951] 2 KB 92

Jurisdiction:

England and Wales

Cited by:

Applied – Battlespring Ltd v Gates CA 1983
The tenant had occupied the house for 35 years. She resisted an application by her landlord to rehouse her. She had brought up her family there and did want to leave.
Held: The landlord’s appeal was dismissed. The landlord’s interest which was . .
Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Cited – Whitehouse v Lee CA 14-May-2009
The tenant appealed against an order requiring her to give up possession of her flat, held under the 1977 Act, saying that the court should not have found it reasonable to make an order after finding alternative accommodation suitable.
Held: . .
Lists of cited by and citing cases may be incomplete.

Housing, Landlord and Tenant

Updated: 02 June 2022; Ref: scu.221514

Logothetis v Kadoori and others: CA 5 Jun 2001

Application for permission to appeal against a decision of the President of the Lands Tribunal on an appeal from a determination by the Leasehold Valuation Tribunal

Judges:

Dyson LJ

Citations:

[2001] EWCA Civ 838

Links:

Bailii

Statutes:

Leasehold Reform, Housing and Urban Development Act 1993

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 02 June 2022; Ref: scu.218247

Secretary of State for the Environment v Possfund (North West) Ltd and others: ChD 1997

The lease required T to pay a depreciation allowance toward the cost of maintaining and replacing fixtures and fittings, including the air conditioning. An unspent balance had accumulated when the lease came to an end. The reversion was sold and T signed a new lease. The first L transferred the depreciation fund to the new L but T said it should be returned.
Held: Once the sums were paid into the depreciation fund, they became the landlord’s absolute property. There was no provision in the lease for the return to the tenant of unspent funds at the end of the lease. This pointed to an intention that the landlord should keep them. The sums had been paid into a separate fund earmarked for the replacement of the air conditioning plant. The air conditioning plant had a finite life expectancy which was not necessarily co-terminous with the lease. The contributions to the depreciation fund were intended under the lease to go towards the cost of replacing the unit whenever that was necessary, regardless of whether the lease had already ended.

Judges:

Rimer J

Citations:

[1997] 2 EGLR 56

Jurisdiction:

England and Wales

Cited by:

Distinguished – Brown’s Operating System Services Ltd v Southwark Roman Catholic Diocesan Corporation CA 1-Mar-2007
T appealed against a decision upholding the claim of the respondent landlord S for unpaid service charges.
Held: The real issue was whether the money held by the landlord (whether held in reserve or retained as excess) was held to its own . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 02 June 2022; Ref: scu.259927

Re Arrows Ltd (No 3): ChD 1992

Hoffmann explained the case of Reeves v Pope: ‘The reasoning of the Court of Appeal was that a mortgagee or transferee of a property subject to a lease does not become entitled to the rents . . as an assignee [of] a chose in action by the original owner. What the original owner transfers to his mortgagee or to his transferee is not simply a right to receive the rent, which if it were an ordinary debt might be set-off against a cross-indebtedness by the transferor. It is the land itself. The mortgagee becomes entitled to collect the rent not as assignee of the rent but by virtue of having an interest in the land’.

Judges:

Hoffmann J

Citations:

[1992] BCLC 555

Jurisdiction:

England and Wales

Citing:

Explained – Reeves v Pope CA 1914
The potential landlord agreed with the proposed tenant to build a hotel by a date, and the tenant agreed to take a lease when it was ready. The building was late in completion. The tenant took the lease but without prejudice to his claim for . .

Cited by:

Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 02 June 2022; Ref: scu.242646

Parkus v Greenwood: ChD 1950

In the lease, the landlord agreed to grant a further lease: ‘for a further term of three years from the expiration of the said term at the same rent and containing the like agreements and provisions as are herein contained, including the present covenant for renewal’
Held: Harman J said: ‘Mr Albery . . pointed out that in the old conveyancing precedents these words were used to create a perpetual right to renew and that a careful conveyancer if he wished to avoid trouble and did not wish to have it said that there might be such a perpetual right, would use the opposite words, namely ‘excluding this present covenant’. All that I accept; none the less, in my judgment, this part of the Act only operates to create a term of 2,000 years where the lease is on the face of it perpetually renewable. You have to find expressly in the lease or agreement a covenant or obligation for perpetual renewal. I do not find any such covenant here. All I find is a covenant for renewal once.’

Judges:

Harman J

Citations:

[1950] Ch 33

Statutes:

Law of Property Act 1922

Jurisdiction:

England and Wales

Cited by:

Cited – Marjorie Burnett Ltd v Barclay ChD 12-Dec-1980
A lease was created of a shop, dwellings and out-buildings. By clause 6 the tenant had a right to renew the lease, with the new lease creating the same provision. The defendant claimed that as a perpetually renewable lease it took effect as a lease . .
Appeal from – Parkus v Greenwood CA 2-Jan-1950
The tenant appealed a finding that his lease did not contain a clause making it a perpetually renewable lease.
Held: The appeal succeeded. There was in fact an express covenant or obligation for perpetual renewal. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 02 June 2022; Ref: scu.259708

Starmark Enterprises Ltd v CPL Distribution Ltd: CA 31 Jul 2001

The parties were landlord and tenant. The landlords served a notice to increase the rent, but the tenant failed to serve a counter-notice within the relevant period. The landlord claimed the tenant was bound, and appealed a decision against them.
Held: The appeal succeeded. The Mecca case was wrongly decided. The deeming provision in the lease was decisive, or nearly so, contra indication of the idea that time should not be of the essence in such cases. Per Arden LJ: ‘It is relevant, however, to note that the lease is made between two commercial parties. If the tenant had been a consumer and the provisions for review of rent had not been individually negotiated (and no other enactment applied), it would be open to the tenant to argue that by virtue of the Unfair Terms on Consumer Contracts Regulations 1999 S1 1999/2083, the provisions of proviso (2) are not binding on him’.

Judges:

Lord Justice Peter Gibson, Lord Justice Kay, Lady Justice Arden

Citations:

Gazette 20-Sep-2001, Times 02-Oct-2001, Gazette 04-Oct-2001, [2002] 4 All ER 264, [2001] EWCA Civ 1252, [2002] Ch 306

Links:

Bailii

Statutes:

Unfair Terms on Consumer Contracts Regulations 1999 (S1 1999/2083)

Jurisdiction:

England and Wales

Citing:

per incuriam – Mecca Leisure Ltd v Renown Investments (Holdings) Ltd 1984
. .
Applied – Henry Smith’s Charity Trustees Ltd v AWADA Trading and Promotion Services Ltd 1984
. .

Cited by:

Cited – Khatun, Zeb, Iqbal v London Borough of Newham Admn 10-Oct-2003
Each applicant had been accepted as homeless by the respondent, but was then offered alternative accomodation under terms which they found unacceptable. They argued that the Regulations applied. The council had disapplied one statutory guidance in . .
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 – Tan and Another v Sitkowski CA 1-Feb-2007
The tenant claimed Rent Act protection for his tenancy. He had been rehoused and began his tenancy in 1970 with the ground floor used as a shop, and the first floor as living accomodation. He later abandoned the business use. He appealed a finding . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Housing

Updated: 01 June 2022; Ref: scu.159890

Fortman Holdings Ltd v Modem Holdings Ltd: CA 30 Jul 2001

The issue of ‘material compliance’ in a lease whatever it involves must be determined on an objective basis.

Judges:

Lord Justice Judge, Lord Justice Pill, Lord Justice Rimmer

Citations:

[2001] EWCA Civ 1235

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Fitzroy House Epworth Street (No. 1) Ltd and Another v Financial Times Ltd CA 31-Mar-2006
The defendant tenant sought to exercise a break clause in the lease. The landlord said that the notice was deficient because the tenant had failed ‘materially to comply with’ its repairing obligations. The judge found the cost of repairs were . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 01 June 2022; Ref: scu.159896