Bookman (Thomas) Ltd v Nathan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 20 June 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0620-2 |
| Court | Court of Appeal |
| Date | 20 June 1955 |
[1955] EWCA Civ J0620-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning,
Lord Justice Birkett, and
Lord Justice Romer.
M R. PHILIP PANTO (instructed by Mr Harry Rose) appeared as Counsel on behalf of the Appellant (Defendant).
MR J.E.S. RICARDO (instructed by Messrs. E.B.V. Christian & Co.) appeared as Counsel on behalf of the Respondents (Plaintiff).
JUDGMENT LORD JUSTICE DENNING: In 1950 the Plaintiffs, Thomas Bookman limited, let a flat No. 21 Melbourne Court to a tenant, Mr Nathan, for five years commencing from the 1st August, 1950, at a rent of £6. 14s. 9d a montho That term would in the ordinary course of events expire on the 1st August, 1955. In September, 1954, the tenant, Mr Nathan, found a house and bought it because he wanted other accommodation for hisFamily. He decided to assign the remainder of his lease which at that time had ten months to run. He looked in the newspaper and saw a Mr Peter Diamond advertising for rooms. He answered the advertisement and they had an interview, Mr Diamond agreed to take an assignment of the remainder of the lease and he agreed to buy some of Mr Nathan's furniture for £100. Mr Nathan took up the references of Mr Diamond which were all satisfactory. Then he applied in December, 1954, for the consent of the landlord to the assignment. The lease said the tenant was "not to assign, transfer, underlet or part with possession of the flat without the consent of the landlord, such consent not to be unreasonably withheld".
On the 13th December, 1954, Mr Nathan by his solicitors asked for consent and the reply on the 16th December by the landlord was "In view of the fact that your client's tenancy. expires in a matter of a few months, our clients are not prepared to grant their consent to an assignment, as this would appear to be merely an attempt to assign the 'fag-end" of a tenancy". A few days later on the 20th December, 1954, they repeated their contention. They said: "The sole purpose of the assignment is to give to the assignee the statutory protection which the assignor does not want and does not intend to get for himself". So they refused their consent to the assignment. Notwithstanding the refusal, Mr Nathan did assign to Mr Diamond because he took the view that the landlord was unreasonably withholding his consent to the assignment. The question now is whether the landlord was justified in withholding his consent.
The matter came before the County Court Judge on a claim by the landlord for possession against Mr Nathan and Mr Diamond on the ground that there had been a breach of covenant by the tenant. The important thing to notice is that at the time when the request was made for consent there were 7 ½ months to run of the lease. The Judge has found that,when the tenant assigned to the assignee, there was no intention or object of getting a Rent Act tenancy. The simple purpose was that Mr Diamond, the assignee, wanted accommodation. He was a young man recently married. He has been living in a furnished room with his wife. He parted with all his savings to get this flat and he paid full value for the furniture. He knew the lease had only 7½ months to run but his hope was that at the end of the term he could arrange with the landlord to give him a new tenancy. The Judge has found that that was his purpose. There was no purpose of creating a new statutory tenancy.
The Judge however said that he was not concerned with the object of the two gentlemen but with what the consequences wereo He said that having regard to the consequences, which would be that the landlord would be saddled at the end of the term with a tenant who would be protected by the Rent Act, the landlords did not unreasonably withhold their consent. Accordingly, he made an order for possession.
There are two reported cases which have come before the Court in which a landlord has been held to be entitled to withhold his consent. In Swanson v Forton 1949 1 Chancery, page 143 there were only twelve days to run. In Dollar v Winston, 1950, 1 Chancery, page 236, there were seven weeks to run. It was held in each of those cases that the landlord was entitled to withhold his consent because the object of the assignee was to get the benefit of a statutory tenancy: and the period was so short that it was not a normal assignment but an entirely abnormal one.
In the present case it seems to me on the Judge's finding there was a normal assignment with 7½ months to run. The assignee had the simple purpose of entering into occupation for the 7½ months in the hope thereafter of negotiating a new tenancy, but not with the object of getting a statutory tenancy, though that would indeed by the natural result.
I think the Judge misdirected himself by saying he had not to consider the object of the parties. I think that the object of the assignment was a most important element to consider. It may not always be decisive. I can well imagine that, if there were an assignment of the last fortnight or three weeks of a term, a landlord could reasonably withhold his consent even though the parties had no intention in fact of creating a statutory tenancy.
Here there is a respectable tenant against whom nothing has been said at all. There is no reason whatsoever, as far as I can see, for withholding consent except that the landlords want to select a new tenant themselves. They did not go into the witness box to say why they wanted the premises. They did not say they had a waiting list or that they intended to sell the premises or anything of that kind. For aught that appears, they simply wanted to let the flat to another tenant of their own choosing. They could not be able to get any more rent from such a tenant because they would be limited to the standard rent. There seems to be no reason why they should refuse to have this tenant, Mr Diamond, when he will pay the same rent as any else. In my judgment the Country Court Judge was wrong in holding that this was as abnormal assignments. I think it was a normal one and landlord was not justified in refusing to assign. I would allow the appeal accordingly.
I am of the same opinion. The real...
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