Hildebrand v Lewis: CA 1941

B had granted to L a sublease of premises where the rent was payable quarterly in advance. He fell into arrears with his rent and the landlord served on L a notice under the Law of Distress Amendment Act 1908 section 6 with the result that L became became liable to pay to B’s landlords the rent payable under the sublease period. In September 1940 the premises were damaged by enemy action and L gave to B a notice of disclaimer under the Landlord and Tenant (War Damage) Act 1939 section 4. B did not give L a notice to avoid disclaimer under section 11 of the Act but B’s landlords purported to do so. They also began an action against L claiming the rent due in respect of the premises for the quarter beginning September 1940. L paid 22 pounds into court alleging that no rent was payable after October
Held: 1) B and not his landlords was the landlord of L within the Landlord and Tenant (War Damage) Act 1939 section 24 and therefore the pretended notice to avoid disclaimer served on L by his landlords was not a good notice and L’s notice of disclaimer was wholly unaffected thereby; 2) There being no provision in section 8 of the 1939 Act dealing with apportionment of rent in the event of a notice of of disclaimer being given L was liable to B’s landlords for the whole of the quarters rent payable in advance in September and not merely for the rent payable down to the date on which he said his notice of disclaimer on B.
The Court citing Ellis in support, described it as ‘well settled that where rent is payable in advance the Apportionment Act does not apply’.


[1941] 2 KB 135, [1941] 2 All ER 584, 110 LJKB 570, 165 LT 178, 57 TLR 607


Apportionment Act 1870


England and Wales


CitedEllis v Rowbotham CA 1900
The plaintiff had let and the defendant had taken a tenancy of premises at a rent payable quarterly in advance. The tenancy agreement had provided that if rent should be in arrears for 14 days the plaintiff could regain possession by re-entry. A . .

Cited by:

CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 16 May 2022; Ref: scu.616753