During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the tenant’s covenants to insure and deliver up in good condition.
Held: The tenant remained liable. He had not been evicted by title paramount, and the occupation had been temporary, and did not excuse him from performance of his obligations.
Two questions arose. The first was whether the tenant, who had been evicted in January 1918 by ‘the military authorities’ acting under the Defence of the Realm Regulations, remained liable for rent and under covenants to repair, insure and deliver up the demised premises in good repair.
Held: A landlord’s wrongful refusal to give the tenant possession of the premises constituted an eviction which suspended the tenant’s obligation to pay rent. However, the fact of the eviction does not suspend the tenant’s obligations under covenants other than that for the payment of rent, with the result that the tenant remained liable to pay outgoings.
Lord Buckmaster (Lords Wrenbury and Carson agreeing) said: ‘Eviction by the lessor himself is with equal reason an answer to the claim upon the covenant [to pay rent], and in such a case, as Jervis C.J. said in Upton v. Townend , the question is whether there is an eviction in fact, and whether the plaintiff [that is, the lessor] was a party to it, and again, later on in the judgment, he repeats ‘it is for the jury to say whether the act was done by the landlord, and whether it was done with the intention of depriving the tenant of the enjoyment.’
Lord Atkinson (Lords Sumner and Carson agreeing) added: ‘another instance in which the lessee is deprived of the enjoyment of part of the demised premises, is where the lessor tortiously evicts the lessee from that part. The effect of such an act was dealt with in Morrison v Chadwick and it was decided that such an eviction creates a suspension of the entire rent during its continuance, but that the tenancy is not thereby put to an end, nor is the tenant thereby discharged from the performance of his covenants other than the covenant for the payment of rent.’
Lord Atkinson said: ‘a person who expressly contracts absolutely to do a thing not naturally impossible is not excused for non-performance because of being prevented by the act of God or the King’s enemies . . or vis major’.
And the ‘leasehold estate cannot be divorced from its origins and basis in the law of contract’
Judges:
Buckmaster, Wrenbury, Carson Atkinson, Sumner LL
Citations:
[1922] 2 AC 180, [1922] All ER Rep 1, (1922) 91 LJKB 593, (1922) 127 LT 247, (1922) 38 TLR 475, (1922) 66 Sol Jo 386, [1922] 2 AC 180, 91 LJKB 593
Jurisdiction:
England and Wales
Citing:
Appeal from – Matthey v Curling CA 1920
. .
Cited by:
Approved – Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd HL 1945
Wartime regulations were implemented which prohibited the building on land which was already subject to a building lease which required the lessees to erect several shops.
Held: Even if the doctrine of frustration could apply to a lease, the . .
Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Contract
Updated: 09 December 2022; Ref: scu.652302