The plaintiffs stayed at weekends at a cottage let for a fixed term of one year. The contractual term ended on 25 March 1921 and was not renewed. On 7 April, in the absence of the plaintiffs, the defendant sent the local blacksmith to the cottage, who broke into the premises and put a new lock upon the door and locked it. The plaintiffs sued in trespass. The defendant pleaded by way of defence that the tenancy had determined by effluxion of time; in the alternative he counterclaimed for possession of the cottage on one of the statutory grounds. The trial Judge awarded damages for trespass, but made an order for possession on the counterclaim. The defendant appealed.
Held: the Court rejected the contention that the Act of 1920 had no application to a tenancy for a term certain. The Court then asked whether the effect of the Act was that the defendant’s forcible re-entry constituted a trespass.
Lord Sterndale, Master of the Rolls: ‘The next point is that assuming the Act does apply and that the plaintiffs are statutory tenants, the Act does not prevent a landlord from exercising a right of re-entry where he is entitled to an immediate order for possession under section 5 of the Act, which order it is contended when obtained relates back to the date of his entry. That point was, however, decided against the appellant in Remon v City of London Real Property Co. It is said that in the judgments in that case the point is dealt with by dicta only. In my opinion they are not dicta , but, even if they are, they are dicta from which we ought not to differ, and by which we are bound.’
Lord Justice Scrutton: ‘As to the second point it was said that the Act did not destroy the common law right of the landlord to enter. It will not help him to enter, but if he gets in peaceably he is in his right. It is that argument that as a member of the Court in Remon v City of London Real Property Co I listened to from Mr Romer and in my view we decided against it. It is true that in that case the landlord had not obtained an order for possession under s. 5 of the Act, as he did here, but in my view the object of the Act was to fetter landlords and to take away their common law rights, and until an order was obtained against him, a tenant stayed on, not as a trespasser, but as a statutory tenant – even against the will of the landlord. If the words of Bankes LJ and myself in Remon’s case which cover this point were obiter , they are now affirmed.’
Lord Justice Warrington: ‘The second point, that on the date when the defendant entered the plaintiffs were mere trespassers, has been disposed of by the decision in Remon v City of London Real Property Co. There the landlords went into possession without an order in the same way as the landlord did in this case and the action was brought for an injunction to restrain them, and it is clear that there would have been no right of action unless the tenant were a statutory tenant under section 15.’ After referring to Remon: ‘That decision is binding upon this Court, but even without it I would have taken the same view. It is quite clear that a person holding over is not to be treated as a trespasser.’
Lord Sterndale MR
[1922] 1 KB 664
Increase of Rent and Mortgage Interest (Restrictions) Act 1920 5
England and Wales
Citing:
Cited – Remon v City of London Real Property Co Ltd CA 1921
The court was asked whether the plaintiff, a tenant of rooms to which (once enacted) the Act of 1920 applied and who had been excluded from possession by the landlord’s re-entry on the day that the Act came into force following service of a notice . .
Cited by:
Cited – Lavender v Betts 1942
The landlord, served a notice to quit, and obtained entry to the property without force and removed the doors and windows so that it could no longer be used as a dwelling. The plaintiff brought an action for trespass.
Held: After referring to . .
Criticised – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.230371
