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Landlord and Tenant - From: 1996 To: 1996

This page lists 60 cases, and was prepared on 02 April 2018.

 
Board of Trustees of the National Provident Fund v Shortland Securities Limited [1996] 1 NZLR 45
1996

Gault J
Landlord and Tenant
(New Zealand Court of Appeal) The court considered whether a review in a lease without a ratchet (upwards only) rent review clause could be exercised only at the instigation of the landlord: "The fact that as a consequence the parties agreed upon assignment of a lease that would not contain a ratchet clause but would provide for rent review at the lessor's discretion is not such an absurdity as justifies departing from the plain meaning of the words used. It is clear that the ability of the lessor to elect not to have the rent reviewed effectively negates the benefit of the exclusion of the ratchet clause. It will be a rare case in which a lessor initiates review without being confident that the rent will increase as a result, but that does not make the provisions inconsistent. The provisions are clear in their terms and are capable of being read and of operating together in that the prospect of rent reduction is preserved in the event of a review. That is what the parties agreed to, albeit because they did not advert to that consequence."
1 Cites

1 Citers


 
Garston v Scottish Widows' Fund and Life Assurance Society [1996] 1 WLR 834; [1996] 4 All ER 282
1996
ChD
Rattee J
Landlord and Tenant
A lease allowed a break clause to be exercised on six month's notice. The notice given was calculated by reference to the wrong date, the date of the lease, and not the term contained in it. Held: The mistake was not sufficiently clear to allow it to be remedied, despite the judge's doubts on Hankey.
1 Cites

1 Citers


 
Cornillie v Saha and Bradford and Bingley Building Society (1996) 72 P & CR 14; [1996] 28 HLR 561
1996
CA

Landlord and Tenant
The landlord may not re-enter if he or she has waived the ground for forfeiture. In determining whether a given act amounts to a waiver it is necessary to answer yes to the the following three questions: (1) Does the alleged act of waiver unequivocally recognise the subsistence of the tenancy? (2) Did the landlord have knowledge of the ground for forfeiture at the time of the alleged act of waiver? (3) Was the act of recognition communicated to the tenant?

 
Max Factor Ltd v Wesleyan Assurance Society [1996] 2 EGLR 210; (1996) 74 P&CR 8
1996
CA
Auld and Aldous LJJ, Staughton LJ dissenting
Landlord and Tenant
A break clause was mutual but contained a proviso making it clear "for the avoidance of doubt" that the lessor's right to determine the term ceased if the lessee assigned its interest in the lease prior to the expiration of the tenth year of the term: "5.09 If either the Lessor or the Lessee (here meaning Max Factor Limited only) shall be desirous of determining this present Lease at the end of the tenth year of the term hereby granted and of such desire deliver to the other not less than twelve months' previous notice in writing and in the case of Max Factor Limited pays all rent and six months' further additional rent at the rate then applicable (such additional rent being payable in full on the expiry of such notice) then and in such case immediately after the expiration of the tenth year of the term this Lease shall cease and be void but without prejudice to any claim by either party against the other in respect of any antecedent breach of any covenant or condition herein contained provided that for the avoidance of doubt in the event of the Lessee (here meaning Max Factor Limited only) assigning the interest in the demised premises prior to the expiration of the tenth year of the term then the Lessor's right to determine the term contained in this Clause shall forthwith cease." The court was asked whether the clause was exercisable by an original lessee following assignment by it of the lease and re-assignment by the assignee back to the original tenant. Held: The break clause was not exercisable following assignment of the lease, even though it had been re-assigned back to the original tenant. It determined on the assignment. The right to exercise the break clause was mutual, and the proviso to the break clause expressly provided for cesser of the landlord's rights on assignment by the landlord and was expressed to be "for the avoidance of doubt", and the landlord had a right to refuse re-assignment back to the original tenant, thus rendering any exercise of the break clause nugatory.
1 Citers


 
Cadogan v McCarthy and Stone Developments Ltd [1996] EGCS 94
1996


Landlord and Tenant

1 Citers


 
Brillouet v Landless [1996] 28 HLR 836
1996
CA
Russell LJ
Housing, Landlord and Tenant
B occupied a room in a hotel. He sought an injunction to prevent his eviction, arguing first that he was a tenant protected by the Housing Act 1988 and second that he was protected under the Protection from Eviction Act 1977. His application was refused. Held: His appeal was also dismissed. To claim under the 1988 Act he had to show that he had a tenancy. The facilities provided by the hotel prevented the appellant from demonstrating that he had exclusive possession. Further, he had taken advantage of hotel services. He was therefore a hotel guest booking accommodation at a daily rate. He was a mere licensee. As to the 1977 Act, he would be able to claim its protection as such, but in these particular circumstances, and even as a licensee his occupation was not occupation of a dwelling for the purposes of section 3 of the 1977 Act.
Housing Act 1998 - Protection from Eviction Act 1977 3

 
Rexhaven v Nurse (1996) 28 HLR 241
1996


Landlord and Tenant, Litigation Practice



 
 Yeandle v Reigate and Banstead Borough Council; CA 1996 - [1996] 1 EGLR 20
 
J W Childers Trustees v Anker [1996] 1 EGLR 1
1996


Landlord and Tenant

1 Citers


 
Christopher Moran Holdings Limited v Bairstow and Ruddock [1996] 1 WLR 649
1996
ChD
Ferris J
Landlord and Tenant, Insolvency
The tenant company went into a members' solvent liquidation, and disclaimed the lease. At the time, the rental value had fallen very much below the contractual rent. The landlord sought to prove the balance of the rent with no allowance for being accelerated. The liquidator said the claim should be discounted for having been accelerated. Held: The claim was correct as submitted.
Insolvency Act 1986 178(2)
1 Cites

1 Citers


 
Northern (1967 Act Decisions) [1996] EWLVT 3
11 Jan 1996
LVT

Landlord and Tenant

[ Bailii ]
 
Huwyler v Ruddy [1996] EWCA Civ 1309; (1996) 28 HLR 550; [1996] EGCS 8
18 Jan 1996
CA
Peter Gibson, Schiemann LJJ
Housing, Landlord and Tenant
The parties disputed whether the arrangement between them amounted to a licence to occupy or a tenancy.
[ Bailii ]

 
 Greenwich London Borough Council v Regan; CA 31-Jan-1996 - Times, 08 February 1996; (1996) 28 HLR 469; (1996) 72 P & CR 507
 
Marath and Another v MacGillivray Times, 05 February 1996; [1996] 28 HLR 484
5 Feb 1996
CA
Sir Iain Glidewell
Housing, Landlord and Tenant
A landlord's notice to the effect that '3 month's rent due' was a sufficiently precise demand to allow the tenant to know the nature of his default, and the notice was valid. the relevant notice said: "Signed: RM If signed by agent, name and address of agent: Acting Agent RM" with the address. This notice had been served as an exhibit to an affidavit by the agent. Held: A notice served for the purposes of section 20 of the 1988 Act (notwithstanding that it was not a valid notice for the purposes of section 20 itself, because it was served after rather than before the "assured tenancy" was entered into) provided sufficient notice for the purposes of section 48(1).
Sir Iain Glidewell said: "I see the strength in the argument that if it be proved that the landlord, or his solicitors acting on his behalf, had quite deliberately ensured that payment which otherwise would have come from a housing authority was delayed until after the date of the hearing, in order to enable the landlord to prove that more than three months' rent was in fact unpaid, a court would be slow to base a judgment upon more than three months' rent being unpaid. Precisely how it would go about reflecting that unwillingness to give judgment when it is required by statute to do so, I have not considered."
Housing Act 1988 8 20 - Landlord and Tenant Act 1987 48(1)
1 Cites

1 Citers


 
Mainwaring v Trustees of Henry Smith's Charity (No 1) Times, 20 February 1996; [1996] 2 All ER 220
20 Feb 1996
CA
Sir Thomas Bingham MR
Landlord and Tenant
The claimant sought an order allowing the sale of the freehold of the building where she occupied an apartment. The trustees, when proposing to sell the building to the trustees of the Wellcome Trust, should have served notice under section 5 of the Act on the appellant and other qualifying tenants. The section provides for the service of notices by a landlord who proposes to make a relevant disposal. Held: The 'Relevant disposal' by a Landlord happens on completion, not on exchange of contracts. Sir Thomas Bingham MR said: "The Act provides that if, in certain closely defined situations, a landlord proposes to dispose of his interest in premises of a certain kind, the tenants living in those premises shall have a priority right to acquire that interest on the same terms as those on which the landlord is willing to dispose of the interest to another. The long title of the 1987 Act describes it as 'An Act to confer on tenants of flats rights with respect to the acquisiton by them of their landlord's reversion'"
and "the choice between the competing contentions . . must be governed by the proper construction of the 1987 Act and not be consideration of how the proper construction may in practice affect either one party or the other."
Landlord and Tenant Act 1987 4
1 Citers



 
 Hindcastle Ltd v Barbara Attenborough Associates Ltd and Others; HL 22-Feb-1996 - Gazette, 27 March 1996; Times, 23 February 1996; [1997] AC 70; [1996] 1 All ER 737; [1996] 2 WLR 262; [1996] BPIR 595; [1996] 1 EGLR 94; [1996] 2 BCLC 234; [1996] NPC 28; [1996] UKHL 19; [1996] BCC 636; [1996] 15 EG 103; [1996] EG 32
 
London (1967 Act Decisions) [1996] EWLVT 4
27 Feb 1996
LVT

Landlord and Tenant

Leasehold Reform Act 1967
[ Bailii ]
 
London (1967 Act Decisions) [1996] EWLVT 5
6 Mar 1996
LVT

Landlord and Tenant

Leasehold Reform Act 1967
[ Bailii ]
 
Woolwich Building Society v Dickman and Another Times, 20 March 1996
20 Mar 1996
CA

Landlord and Tenant
A Lender's form of consent to mortgage was ineffective to displace a Tenant's statutory rights.
Rent Act 1977 98

 
Long v Tower Hamlets London Borough Council [1996] EWHC Ch 1; [1996] 2 All ER 683; [1996] 3 WLR 317; [1997] 1 EGLR 78; [1998] Ch 197
20 Mar 1996
ChD
Munby QC J
Landlord and Tenant, Limitation
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued that as a lease in writing, time ran from the notice to quit. The tenant denied that it was lease in writing since no estate was disposed. Held: A written document does not have to be a deed in order to be a 'writing'. The document was therefore in writing, though not a deed. However: "a written document, whatever its terms, however clearly referable to the existence of a lease, and however comprehensive it may be in setting out the terms of the lease, is not a 'lease in writing' for the purposes of para 5(1) of Schedule 1 to the Limitation Act 1980 unless at law the document itself operates to 'pass an interest'." The court considered the tenant's argument that as a reversionary lease it had to be created by deed. The earlier statute prohibited a lease where the total length of the term and te period before it commenced exceeded three years being created by parol. It did not prevent shorter lease being so created. In 1925 the position changed since the 1925 Act referred to interests taking effect in possession: "the effect of the Law of Property Act 1925 was to make equally unenforceable both an oral executory agreement to grant a lease (section 40) and an oral attempt to grant a lease taking effect in possession in the future (section 54(2)), and, accordingly, to put an end to the need to distinguish between those oral transactions for a future tenancy which, as a matter of construction, took effect as mere agreements, and were thus unenforceable by virtue of section 4 of the Statute of Frauds, and those oral transactions which, as a matter of construction, took effect as leases, and thus fell within the exception in section 2 of the Statute of Frauds."
Limitation Act 1980 15(1) - Law of Property Act 1925
1 Cites

[ Bailii ]
 
The Mortgage Corporation Ltd v Ubah Gazette, 03 April 1996; Times, 21 March 1996; [1996] 73 P&CR at 500
21 Mar 1996
CA
Millett LJ
Landlord and Tenant, Housing
The respondent mortgagee had obtained an order for possession against the mortgagor freeholder, referred to in the judgment as "the Chief", who had, prior to the mortgage, granted a tenancy to the appellant. Held: The landlord's retention of a right to use the kitchen made the tenancy a restricted tenancy even though no use was possible by the landlord under the contract in that situation.
CS Millett LJ: "The appellant's evidence was that in 1987, that is before the mortgage was granted to the respondents, the appellant arranged for work to be carried out on the flat. The Chief later agreed with him that he would pay £13,873 towards the cost of those repairs and in the words of the appellant 'the Chief told me to set my rent against what he owed me'. That agreement was effective between the parties, but it did not confirm upon the appellant an interest in land capable of binding successors in title to the Chief whether with or without notice of the arrangements unless the right the right of deduction which was given to the appellant fell within one of the two established rights of deduction which are capable of binding successors in title". And
"As against the Chief in my opinion the appellant may well be entitled to deduct the amount which the Chief owes him from payments of rent which are due to the Chief. But the money judgment below is entirely in respect of rent to due the respondents after the date that they had notified the appellant that they had taken possession. The appellant has no right of set-off capable of binding successors in title such as the respondents. It is, of course, settled law that an interest which is not capable of binding successors in title cannot be an over-riding interest within section 70(1)(g) of the Land Registration Act 1925."
Rent Act 1977 21
1 Cites

1 Citers


 
Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar Gazette, 01 May 1996; Times, 05 April 1996; [1997] 2 EGLR 137
27 Mar 1996
CA
Lord Justice Nourse, Lord Justice Ward and Lord Justice Schiemann
Damages, Professional Negligence, Landlord and Tenant
A solicitor failed in 1983 to advise a purchaser of the fact that premium she was paying on purchasing a leasehold flat was unlawful under the Act, and would be unrecoverable on the sale. Before trial however, in 1989 the law changed and the premium would now be recoverable. Held: It was wrong to assess damages mechanistically, and though the usual rule would be to test the damages at the date of loss, it was right to include an assessment at the date of trial if that gave a better view of the actual loss.
Nourse LJ said: "the damages are to be assessed in the real world. Compensation is a reward for real, not hypothetical, loss. It is not to be made an occasion for recovery in respect of a loss which might have been, but has not been, suffered."
Rent Act 1977 127
1 Cites

1 Citers


 
Long v Tower Hamlets London Borough Council Times, 29 March 1996; [1996] 2 All ER 683
29 Mar 1996
ChD
James Munby QC
Landlord and Tenant, Limitation
The landlord's agents wrote to the proposed tenant offering a quarterly tenancy of the premises. The tenancy was to commence at a future date. The defendant endorsed the letter and returned it to say he would abide by the terms, and he was allowed into possession. He ceased to pay rent, and eventually came to claim that he had acquired the freehold by adverse possession. Held: The appropriate limitation period of twelve years ran from the date of the accrual of the right of action. The landlord said that, as a lease in writing, time ran only from the date of a notice to quit. The tenant said no lease in writing existed unless it was dispositive, ie a document creating a leasehold estate. The document was not executed as a deed, and could only create a legal estate if it fell within s54(2) of the 1925 Act. Since it did not take affect in possession, it was reversionary and could not fall within the exception. A tenancy for less than three years but without immediate possession being taken must be by deed: 'there was no 'lease in writing' for the purposes of paragraph 5(1) if the writing, however comprehensively set out and clearly referable to the existence of a new lease, was merely evidential. If there was to be a 'lease in writing' the writing itself had to 'pass an interest' and 'operate a lease' or 'create an estate.' and 'Reversionary lease conferring no immediate right to take possession were altogether excluded form the ambit of section 54(2) of the 1925 Act. Such reversionary leases could take effect only if made by deed. Therefore the tenancy which undoubtedly came into existence was not one created by the tenancy document but rather one which arose by operation of law, by the payment and receipt of rent.' The action was arguable and should be allowed to proceed.
Law of Property Act 1925 54(2) - Limitation Act 1980 Sch1 p5(1)
1 Cites


 
Terence Clarke Rosemarie Clarke v Brian Clarke Lloyd Clarke Hugh Francis Dowley [1996] EWCA Civ 504
17 Apr 1996
CA

Landlord and Tenant

[ Bailii ]
 
Retail Parks Investment Ltd v Royal Bank of Scotland Plc (Scotland) Times, 22 April 1996
22 Apr 1996
IHCS

Landlord and Tenant, Scotland
Bank forced to comply with keep open clause - cash dispensers insufficient
1 Cites


 
Savva and Another v Houssein Times, 06 May 1996; (1997) 73 P&CR 150; [1996] EWCA Civ 1302; [1996] EWCA Civ 1295; [1996] 2 EGLR 65
24 Apr 1996
CA
Aldous LJ, Staughton LJ, Sir John May
Landlord and Tenant
The tenant had broken a negative covenant against making alterations, namely not to change the exterior sign and not to alter the premises without consent. The landlord sought to forfeit the lease. Held: The breach of the covenant was remediable if the harm caused can be rectified. The breach was a continuing one. Possession was denied.
Staughton LJ said: "In my judgment . . the question is: whether the remedy referred to is the process of restoring the situation to what it would have been if the covenant had never been broken, or whether it is sufficient that the mischief resulting from a breach of the covenant can be removed. When something has been done without consent, it is not possible to restore the matter wholly to the situation which it was in before the breach. The moving finger writes and cannot be recalled. That is not to my mind what is meant by a remedy, it is a remedy if the mischief caused by the breach can be removed. In the case of a covenant not to make alterations without consent or not to display signs without consent, if there is a breach of that, the mischief can be removed by removing the signs or restoring the property to the state it was in before the alterations."
Aldous LJ spoke of negative and positive covenants, saying: "There is in my view nothing in the statute, nor in logic, which requires different considerations between a positive and negative covenant, although it may be right to differentiate between particular covenants. The test is one of effect."
Law of Property Act 1925 146
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]
 
Cadogan v McGirk [1996] 2 EGLR 75; [1996] 4 All ER 643; [1996] EWCA Civ 1340; [1996] 39 EG 175; (1996) 72 P & CR D47; [1996] NPC 65; (1997) 29 HLR 294
25 Apr 1996
CA
Millet LJ, Waite LJ, Thorpe LJ
Landlord and Tenant
The court considered whether the Act should be construed as expropriatory legislation and therefore was to be read strictly. Millet LJ said: "It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord's interest, nevertheless it was passed for the benefit of tenants. It is the duty of the court to construe the Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which parliament must have intended them to enjoy." and (obiter)
"[T]he expression 'the terms of the lease' would ordinarily refer to the covenants and conditions of the lease rather than the extent of the demise. But s 57 (1) provides for the terms of the existing lease to be modified (inter alia) to exclude from the new lease property included in the existing lease but not forming part of the flat. This is an indication that the expression 'terms of the existing lease' may need to be given a wider interpretation than would be usual".
Millett LJ said of the 1993 Act: "It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord's interest, nevertheless it was passed for the benefit of tenants. It is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy."
Leasehold Reform Act 1967
1 Cites

1 Citers

[ Bailii ]
 
Akinbolu v Hackney London Borough Council Gazette, 22 May 1996; Times, 13 May 1996; (1996) 29 HLR 259
13 May 1996
CA

Landlord and Tenant
The fact that a secure tenant was an illegal and an overstaying immigrant and therefore should not have been granted a tenancy, gave no right to the council as landlord summarily to evict him.
Housing Act 1985 81
1 Citers


 
Church Commissioners for England v Al-Emarah and Another Gazette, 12 June 1996; Times, 13 May 1996
13 May 1996
CA

Landlord and Tenant, Family
A wife being deemed to be the sole tenant took it subject to an existing possession order.
Rent Act 1977 1998 - Matrimonial Homes Act 1983 1

 
Kay-Green and Others v Twinsectra Ltd [1996] EWCA Civ 1355
15 May 1996
CA
Staughton, Aldous LJJ, Sir John May
Landlord and Tenant
The claimants appealed against rejection of their claim that the respondent had failed to respond to their notices given under the 1987 Act.
Landlord and Tenant Act 1987
[ Bailii ]
 
Kay-Green and Others v Twinsectra Limited Times, 27 May 1996; [1996] EWCA Civ 448; [1996] 1 WLR 1587
15 May 1996
CA
Lord Justice Staughton Lord Justice Aldous and Sir John May
Landlord and Tenant
The former landlord had sold a number of buildings, some of which fell within Part I Act. The section 5 notice had not been served. The vendor had also failed to comply with his duty (under s 5(5)) to "sever" the transaction, and sell the buildings within Part I separately. A majority of the tenants in three of the buildings containing flats subsequently served a purchase notice on the new landlord under section 12. Under 12(3)(a), where the interest subject to the disposal related to property in addition to the premises within Part I, the purchase notice "shall…require that the new landlord dispose of that estate or interest only so far as relating to those premises", subject to "such modifications as are necessary or expedient in the circumstances." Contrary to that requirement, the purchase notice required the transfer of all the buildings, whether or not within Part I. The Judge held that that was a clear breach of the section, which was fatal to the validity of the notice. Held: The appeal succeeded. That particular requirement was directory only. A new freeholder was bound by the need to give a notice of the right of first refusal to his tenants.
Landlord and Tenant Act 1987 5 12
1 Cites

1 Citers

[ Bailii ]
 
Chung Ping Kwan and others v Lam Island Development Company Limited Times, 16 July 1996; [1996] UKPC 23
8 Jul 1996
PC
Lord Keith of Kinkel Lord Jauncey of Tullichettle Lord Nicholls of Birkenhead Lord Steyn Sir Christopher Slade
Commonwealth, Limitation, Landlord and Tenant
(Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later court of appeal decision. The Court of Appeal re-instated the first order. Held: The squatter against a leasehold title could acquire only a title equivalent to that of the leasehold interest. When a squatter on land held under a renewable lease is sued and pleads a limitation defence, the lessee is unable to respond by relying upon the (deemed) new lease as a new title setting time running afresh.
1 Cites

[ Bailii ]
 
Kensington and Chelsea Royal London Borough Council v Simmonds Times, 15 July 1996; [1996] 29 HLR 507
15 Jul 1996
CA

Landlord and Tenant
A possession order was properly made against a tenant for the misbehaviour of a family member.
Housing Act 1985 Sch 2 Part 1
1 Citers


 
Fawaz v Aylward and Another Times, 15 July 1996
15 Jul 1996
CA

Landlord and Tenant
Notice determining tenancy effectively was notice requiring possession.
Housing Act 1988 21(1)(b)

 
Berrycroft Management Company Limited and Girling Harrow Road (Sudbury) Management Company Limited and Similar [1996] EWHC Admin 50
29 Jul 1996
Admn

Landlord and Tenant

Landlord and Tenant Act 1985

 
London (1967 Act Decisions) [1996] EWLVT 6
31 Jul 1996
LVT

Landlord and Tenant

Leasehold Reform Act 1967
[ Bailii ]
 
Boyle v Verrall Times, 09 August 1996; [1997] 1 EGLR 25
9 Aug 1996
CA

Landlord and Tenant
The Court's discretion to grant a landlord possession is not limited to exceptional cases. Under Ground 1 in Schedule 2 Housing Act 1988 the landlord was entitled to recover possession from an assured tenant if he "requires the dwelling house as his...principal home".
Housing Act 1988 Part I Sch 2
1 Citers


 
Dickinson v Enfield London Borough Council Times, 09 August 1996
9 Aug 1996
CA

Landlord and Tenant, Housing
A tenat's right to buy property should not effect the assessed fair rent on review.
Housing Act 1985


 
 Berrycroft Management and Others v Sinclair Gardens; CA 30-Sep-1996 - Times, 30 September 1996

 
 Mainwaring and Yeoman's Row Management Limited v Trustees of Henry Smith's Charity (No 2); CA 3-Oct-1996 - Times, 09 October 1996; [1996] EWCA Civ 657
 
Straudley Investments Limited v Mount Eden Land Limited [1996] EWCA Civ 673; [1996] 74 P & CR 306
7 Oct 1996
CA
Phillips LJ, Mummery LJ
Landlord and Tenant
In considering a refusal of consent to a sub-letting, two considerations in addition to those already esatblished in law applied: "(1) It will normally be reasonable for a landlord to refuse consent or impose a condition if this is necessary to prevent his contractual rights under the [lease] from being prejudiced by the proposed assignment or sublease. (2) It will not normally be reasonable for a landlord to seek to impose a condition which is designed to increase or enhance the rights that he enjoys under the [lease]."
Landlord and Tenant Act 1988
1 Citers

[ Bailii ]
 
Waheed and Anr v Anand and Anr [1996] EWCA Civ 739
15 Oct 1996
CA

Landlord and Tenant

Landlord and Tenant Act 1954
[ Bailii ]
 
Chiu Hung Cheung v Bidfort (Restaurants) Limited [1996] EWCA Civ 751
17 Oct 1996
CA

Landlord and Tenant

Landlord and Tenant Act 1954
[ Bailii ]

 
 Royal Bank of Scotland v Jennings, Pezaro and Circuitpoint (Brewery Road) Limited; CA 24-Oct-1996 - [1996] EWCA Civ 804; [1996] EGCS 168; [1997] 1 EGLR 101
 
Ann Rosemary Lindquist v Mohammad Sabir Raja [1996] EWCA Civ 791
24 Oct 1996
CA

Landlord and Tenant

[ Bailii ]
 
Victor Abebrese ex parte v Chesters Accomodation Agency Limited [1996] EWCA Civ 824
29 Oct 1996
CA

Landlord and Tenant
Possession proceedings had been wrongly bought in the name of the agent not the landlord. Leave to appeal given.
1 Citers

[ Bailii ]
 
Burrows v Brent London Borough Council Gazette, 20 November 1996; Times, 04 November 1996; [1996] 4 All ER 577; [1997] 1 EGLR 32; [1997] 2 FCR 43; [1996] NPC 149; [1997] Fam Law 246; [1996] UKHL 20; (1997) 29 HLR 167; [1997] 11 EG 150; [1997] 1 FLR 178
31 Oct 1996
HL
Browne-Wilkinson L
Landlord and Tenant, Housing
The authority had obtained a possession order from its secure tenant but then agreed to accept payments toward the arrears. The tenant applied for and was granted a declaration that she had on that agreement acquired a new tenancy. The authority appealed. Held. The agreement had created a new tenancy even after a final possession order had been made, and a A new possession order was required before any warrant could be issued. Had the authority obtained a suspended possession order, no new tenancy might have been created. While a tenant could not sue for breach of a landlord’s covenant while the tenancy was in the state of limbo, if and when the secure tenancy revived, its covenants likewise revived and were to be treated as having been in existence during the limbo period.
An agreement which allowed a tenant to stay on in a house after a possession order had been made, did not itself create a new tenancy, but he might have the status of being a 'tolerated trespasser': "In the absence of special circumstances, an agreement by a landlord not to enforce strictly an order for possession, whether conditional or unconditional does not create a new secure tenancy or licence." However, a tenant who had not been evicted could apply under section 85(2) to postpone the date of possession, and, upon such postponement, the secure tenancy would be revived because "the date on which the tenant is to give up possession" would not have arisen and thus the tenancy would not have ended. Until a possession order was executed, the court could by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which had already been terminated.
Lord Browne-Wilkinson said: "What, then, is the correct legal analysis? I start from the proposition that where a former tenant is by agreement allowed to remain in possession of the demised property after the termination of the tenancy, the question in each case is quo animo the parties have so acted: depending upon the circumstances, their conduct may give rise to a new tenancy, a licence or some other arrangement. In the present case, on 5 February 1992 the parties plainly did not intend to create a new tenancy or licence but only to defer the execution of the order so long as Miss Burrows complied with the agreed conditions. It cannot be right to impute to the parties an intention to create a legal relationship such as a secure tenancy or licence unless the legal structures within which they made their agreement force that conclusion.
A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may yet be revived by a further order of the court varying the date for possession. If the parties reach an agreement as to the continued occupation of the premises by the tenant during that limbo period, what intention is to be imputed to them?
In my judgment little guidance is to be obtained from the cases where a tenant holds over after the termination of an ordinary tenancy where there is no possibility that the expired tenancy can revive. The position in relation to secure tenancies is sui generis. In my judgment, the agreement can and should take effect in the way the parties intend, i.e. it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, i.e. from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute to the parties an intention to create a new tenancy or licence: the retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived. In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict - a "tolerated trespasser" - pending either the revival of the old tenancy or the breach of the agreed conditions.
Once the effect of section 85 is appreciated, the absurdities which led the Court of Appeal not to accept that Miss Burrows could be a tolerated trespasser disappear. Technically the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply. But the tenant can at any time apply to the court for an order varying the date on which possession is to be given and thereby retrospectively revive the old secure tenancy, together with its covenants. If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order. Moreover, the tenant will not be a homeless person within section 58(2) of the Act of 1985 because the tenant will be occupying the residence by virtue of any "rule of law giving him the right to remain in occupation:" see section 58(2)(c). If the tenant were in breach of any of the covenants in the old secure tenancy, Brent could apply to vary the order so as retrospectively to revive the old tenancy together with its covenants.
Finally, there is a method (albeit a clumsy one) whereby the order for possession even if an immediate unconditional order, can be discharged or rescinded if so desired under section 85(4). The power in that subsection to discharge or rescind only arises "if the conditions are complied with," a requirement which cannot be satisfied in the case of an unconditional order. But there is no reason why the order cannot be discharged by consent or, if such consent is not forthcoming, by the court varying the original order so as to impose the agreed conditions and then discharging the varied order.
It was submitted that the fact that the tenancy was granted to Miss Burrows jointly with Mr. Allen whereas the agreement of 5 February 1992 was made with Miss Burrows alone, indicated that the agreement must have given rise to a new tenancy with Miss Burrows alone. Therefore there must be a new tenancy. However, since in my view on its proper analysis the arrangement contained in the agreement of 5 February 1992 gave rise to no new tenancy with anyone, that factor is irrelevant. I therefore reach the conclusion that, in the absence of special circumstances, an agreement by a landlord not to enforce strictly an order for possession, whether conditional or unconditional, does not create a new secure tenancy or licence under Part IV of Act of 1985.
As Brent, by making the agreement of 5 February 1992, did not grant a new tenancy or licence to Miss Burrows as from 12 February 1992. It follows that the possession order of 29 January 1992 was properly enforced. I would therefore reverse the decisions of the Court of Appeal and the trial judge and dismiss Miss Burrows's action."
Lord Jauncey of Tullichettle said: "whereas an order postponing the date of possession necessarily affects the operation of section 82(2), an order staying or suspending the execution of an order for possession on a stated date has no effect on the operation of that subsection but merely postpones execution so long as the conditions of suspension are complied with."
Housing Act 1985 82 85(2)
1 Cites

1 Citers

[ Bailii ]
 
Lower Park (Putney) Limited v Valerie Webber-Stewart [1996] EWCA Civ 873
4 Nov 1996
CA

Landlord and Tenant

[ Bailii ]
 
Church Commissioners for England v Kamal Exports (Uk) Ltd; James 21St Buddha; Rodney Howard and Rakhi Samani [1996] EWCA Civ 896
7 Nov 1996
CA

Landlord and Tenant

[ Bailii ]
 
Esselte Ab and British Sugar Plc v Pearl Assurance Plc Gazette, 27 November 1996; Times, 14 November 1996; [1996] EWCA Civ 911; [1997] 02 EG 124; [1997] 1 WLR 891
8 Nov 1996
CA
Morritt LJ, Sir John May, Stuar-Smith LJ
Landlord and Tenant
The tenant was no longer in occupation of the demised premises when he served a s27 notice. Held: A business tenancy ceases at end of the lease, if the premises are not actually occupied by the tenant despite any notices given. The occupation was required for a tenancy to continue under s24(1). S 27(2) was looking to the point in time when the notice took effect. At that point in time the tenancy had to be one which was “continuing by virtue of section 24 of the Act” S24(1) applies only to tenancies “to which Part II of the 1954 Act applies”.
Landlord and Tenant Act 1954 27
1 Cites

1 Citers

[ Bailii ]
 
Mount Eden Land Ltd v Prudential Assurance Co Ltd [1996] EWCA Civ 933; [1997] 1 EGLR 37; (1997) 74 P&CR 377
12 Nov 1996
CA
Morritt LJ, Sir John Balcombe and Beldam LJ
Contract, Landlord and Tenant
The Court warned against extending the "magic" of the "subject to contract" label into the realm of unilateral licences. The question was whether a landlord had granted licence to the tenant to carry out alterations. The letter relied on as constituting the licence was headed "subject to licence" and the text of the letter gave consent subject to various conditions, including entry into a formal licence. Held: A licence had been granted. The purpose of the suspensory condition "subject to contract" in the context of negotiations is to avoid the other side seeking prematurely to conclude a contract by the acceptance of an offer so as to give rise to unintended legal consequences. In cases requiring a unilateral act the only question is whether that act has occurred. Morritt LJ: “I do not accept that it is legitimate to extend the principle … from the field of bilateral negotiations to that of a unilateral act. … In cases requiring a unilateral act the only question is whether that act occurred. … In truth the heading “subject to licence” added little to the condition expressed in the body of the letter and could not qualify the unambiguous expression of consent it contained. If it be necessary to attribute some meaning to the heading then it might serve to emphasise the degree of formality required so that the express condition for a formal licence should not be satisfied in correspondence or by some less formal method than a licence strictly so-called. But no such document was required by the terms of the leases. …” and “The purpose of the suspensory condition “subject to contract” in the context of negotiations is to avoid the other side seeking prematurely to conclude a contract by the acceptance of an offer so as to give rise to unintended legal consequences. In cases requiring a unilateral act the only question is whether that act has occurred. So in this case the only question is whether the letter of May 18th, 1993 was a consent as required by the lease. That is a question of the construction of the letter in the light of all of the surrounding circumstances. So regarded I have no doubt that the letter does express the consent required by the leases. It will be remembered that such consent may be temporary or revocable or qualified. This letter expresses consent in the clearest terms. The consent was qualified by the stipulation for a formal licence as stated in the body of the letter. For that document it would be necessary to have the drawing numbers referred to in the concluding passage. In truth the heading “Subject to Licence” added little to the condition expressed in the body of the letter and could not qualify the unambiguous expression of consent it contained. If it be necessary to attribute some meaning to the heading then it might serve to emphasise the degree of formality required so that the express condition for a formal licence should not be satisfied in correspondence or by some less formal method than licence strictly so called. But no such document was required by the terms of the leases.”
1 Citers

[ Bailii ]
 
Pourdanay v Barclays Bank Plc Times, 12 November 1996
12 Nov 1996
ChD

Landlord and Tenant, Housing, Land
Statutory tenancy after contractual one binding on mortgagee is also binding.

 
Tehmena Mustafa Khar Gulam Mustafa Khar v Delbounty Limited [1996] EWCA Civ 950
13 Nov 1996
CA

Landlord and Tenant

[ Bailii ]
 
Berryman v Hounslow London Borough Council Times, 18 December 1996; [1996] EWCA Civ 1001
20 Nov 1996
CA

Landlord and Tenant, Land, Housing, Personal Injury
No damages were to be awarded for a tenant's injury suffered whilst climbing the stairs when the lift had not been repaired.
[ Bailii ]

 
 Enfield London Borough Council v Devonish and Another; CA 27-Nov-1996 - Times, 12 December 1996; [1996] EWCA Civ 1048
 
Gary Francis Bruton v London and Quadrant Housing Trust [1996] EWCA Civ 1080
3 Dec 1996
CA

Landlord and Tenant

1 Cites

1 Citers


 
Keepers and Governors of Possessions Revenues and Goods of Free Grammar School of John Lyon v Mayhew Times, 12 February 1997; [1996] EWCA Civ 1192
12 Dec 1996
CA

Landlord and Tenant, Housing
A defect in the Landlord's notice to quit was cured by the Tenant's acceptance of the notice and her and non objection.


 
 Yui Tong Man v Mahmood and Another; CA 13-Dec-1996 - [1996] EWCA Civ 1218
 
London (1967 Act Decisions) [1996] EWLVT 8
18 Dec 1996
LVT

Landlord and Tenant

Leasehold Reform Act 1967
[ Bailii ]

 
 Brown and Root Technology Ltd and Another v Sun Alliance and London Assurance Comp Ltd; CA 19-Dec-1996 - Gazette, 19 February 1997; Times, 27 January 1997; [1996] EWCA Civ 1261; (1996) 75 P & C R 223; [2001] Ch 733
 
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