Barratt v Richardson & Cresswell
| Jurisdiction | England & Wales |
| Court | King's Bench Division |
| Date | 1930 |
| Year | 1930 |
Landlord and Tenant - Recovery of Possession - Breach of Covenant - Rent payable on Usual Quarter Days - Right of Re-Entry when Rent “in Arrear for 21 Days” - Failure to pay Rent for Thirteen Years - Whether Action for Possession Statute Barred - When “Right to Re-enter first accrued” -
By an indenture of lease dated February 9, 1909, the predecessor in title of the plaintiff demised certain premises to the defendant, R., for the term of ninety-nine years from December 25, 1908, at a yearly rent of 6 l. 6s., payable quarterly on the usual quarter days. R. covenanted for himself and his assigns to pay the rent on the said days, and it was provided that, if and when any part of the rent should be in arrear for twenty-one days, whether the same should have been legally demanded or not, it should be lawful for the lessor to re-enter upon the premises. On April 30, 1924, the term became vested in the defendant, C. Neither on December 25, 1914, nor thereafter to the date of the writ, did either R. or C. pay to the plaintiff the rent due under the lease. In an action by the plaintiff for possession of the premises, begun on January 28, 1928:—
Held, that, although the plaintiff's right to re-enter upon the premises first accrued to him in respect of the non-payment of rent on December 25, 1914, his claim to possession was not barred by s. 1 of the Real Property Limitation Act, 1874, and s. 3 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27), as not having been made within twelve years next after the time at which the right to make such entry had first accrued, but that his right to re-enter accrued afresh in respect of each subsequent quarter day whenever any part of the rent reserved under the lease was in arrear for twenty-one days, and he was, therefore, entitled to rely on the last non-payment of rent before writ issued or any previous non-payment up to twelve years before writ.
Held, further, that the case was governed by s. 3 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 42), which provides that all actions for debt for rent there mentioned shall be commenced and sued within twenty years after the cause of such action, but not after, and not by s. 42 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27), which provides that no arrears of rent shall be recovered by any action but within six years next after the same shall have become due, and that, therefore, the defendant, C., would have to pay or tender to the plaintiff all, and not merely six years of, the arrears of rent owing under the lease in order to defeat the plaintiff's claim by recourse to s. 212 of the Common Law Procedure Act, 1852, and to obtain relief under s. 46 of the Supreme Court of Judicature (Consolidation) Act, 1925.
ACTION tried by Wright J. without a jury.
By an indenture of lease dated February 9, 1909, and made between one James Watts and the defendant, Daniel Henry Richardson, James Watts, being the owner in fee simple in possession of certain premises known as 20 Beechcroft Road, Wandsworth, in the county of London, demised the premises to Richardson for the term of ninety-nine years from December 25, 1908, at a yearly rent of 6 l. 6s., payable quarterly on the usual quarter days. Richardson covenanted for himself and his assigns to pay the rent on the said days and it was provided that, if and when any part of the rent should be in arrear for twenty-one days, whether it should have been legally demanded or not, it should be lawful for the lessor to re-enter on the premises.
By an indenture dated September 27, 1909, James Watts assigned the premises and his interest in them and the reversion dependent on the term to two assignees who, by an indenture dated October 28, 1914, assigned the same to the plaintiff. On April 30, 1924, the term became vested in the defendant, Mrs. Louisa Alice Jesse Cresswell, as assignee thereof and, at the time of the present proceedings, she held possession of the term and of the premises.
Neither the defendant, Richardson, nor the defendant, Cresswell, had paid to the plaintiff the rent due under the lease on December 25, 1914, or thereafter, the arrears at the date of action brought amounting to 63 l. odd.
The plaintiff claimed possession of the premises and the arrears of rent.
The defendant, Richardson, did not appear. By her defence the defendant, Cresswell, denied that the plaintiff was entitled to possession of the premises. She brought into Court the sum of 29 l. odd, being so much of the rent unpaid as fell due within six years before the beginning of the action, and said that, by her solicitors, she had tendered to the plaintiff, before the beginning of the action, six years' arrears of the rent claimed. She denied that she was liable to pay the balance of 34 l. odd and pleaded that any right of the plaintiff to recover the same by means of the proviso for re-entry contained in the lease was barred by the Statutes of Limitation.
H. G. Robertson for the plaintiff. The plaintiff is entitled to possession of the premises since he brings this action “within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit,” first accrued, within the meaning of s. 1 of the Real Property Limitation Act, 1874.F1 Where, as here, rent is payable on certain specified days, a new cause of action within the section accrues in respect of each default on any one of those days. That would appear from such decisions as Archbold v. ScullyF2, which decided that the right to rent continues although some arrears of the rent are statute-barred; Grant v. EllisF3, which decided that a reversioner can distrain in respect of each unpaid instalment of rent although for more than the period of limitation the rent has failed to be collected; and Doe d. Davy v. OxenhamF4, where a reversioner was held to be entitled to re-enter at the end of the term in similar circumstances. Overlooking some non-payments of rent cannot deprive the landlord of his right to sue for subsequent non-payments. To be entitled to relief under s. 212 of the Common Law Procedure Act, 1852F5, the defendant, Cresswell, must pay all the arrears of rent and not only those falling due within the last six years. This is an action within s. 3 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 42)F5, where the period of limitation is fixed at twenty years, and not within s. 42 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27)F5, where the period of limitation is six years. An action for rent founded on a deed may be brought within twenty years: Foà on Landlord and Tenant, 6th ed., p. 198; and Darley v. TennantF6; Donegan v. NeillF7; and Owen v. De Beauvoir.F8
Norman Armitage for the defendant, Cresswell. The claim for possession in this action is barred by the provisions of s. 1 of the Real Property Limitation Act, 1874, read with those of s. 3 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27), since the time at which the right to enter or distrain, and to bring the action, first accrued on December 25, 1914 which is more than twelve years before the issue of the writ on January 28, 1928. This appears clearly from Doe d. Mannion v. Bingham.F9 If a man have a power of re-entry under a lease upon non-payment of...
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Lakshmijit v Sherani
...of the Fiji Court of Appeal affirmed. The following cases are referred to in the judgments: Barratt v. Richardson and Cresswell [1930] 1 K.B. 686. Car and Universal Finance Co. Ltd. v. Caldwell [1965] 1 Q.B. 525; [1964] 2 W.L.R. 600; [1964] 1 All E.R. 290, C.A. Magdalen Hospital (Governors ......
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Romans v Barrett
...he had failed to collect rent. 46 Both these cases were followed as recently as 1930 by Wright, J. (as he was then) in Barratt v. Richardson and Creswell [1930] 1 K.B. 686, [1930] All E.R. 748. At p. 692-3 Wright, J. said:– “It is clear that the right to rent continues as long as the relati......
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Re Howell's Application
...cases are referred to in the judgment: Art Reproduction Co. Ltd., In re [1952] Ch. 89; [1951] 2 All E.R. 984. Barratt v. Richardson and Cresswell [1930] 1 K.B. 686. Edmunds v. Waugh (1866) L.R. 1 Eq. 418. Frost's Application, In re [1970] 1 W.L.R. 1145; [1970] 2 All E.R. 538. Indian Governm......