Bromley Park Garden Estates Ltd v Moss
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE DUNN,LORD JUSTICE SLADE |
| Judgment Date | 25 March 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0325-2 |
| Docket Number | 82/0191 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 1982 |
[1982] EWCA Civ J0325-2
Lord Justice Cumming-Bruce
Lord Justice Dunn
Lord Justice Slade
82/0191
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM BLOOMSBURY& MARYLEBONE COUNTY COURT
(His Honour Judge Warde)
Royal Courts of Justice
MR S.J. SEDLEY, instructed by Messrs Seifert Sedley and Co., appeared for the Appellant (Defendant).
MR R.W. BELBEN, instructed by Messrs Slowes, appeared for the Respondents (Plaintiffs).
This appeal raises an issue of some general importance, because the submission of Mr Sedley, on behalf of the appellant, raises the point that the learned judge was misled when he followed a passage in paragraph 1181 in Woodfall on Landlord and Tenant. Mr Sedley submits that that passage is expressed too widely and requires qualification, and that the judge fell into error because he did not appreciate that the authorities did not support the proposition as stated in Woodfall.
For the reasons that I shall explain, I accept that criticism of Mr Sedley of the way in which it is concisely expressed by the editors of Woodfall and was expressed by the judge.
On 11th May 1978 St. John's College Cambridge granted to one Brown a lease for a term of three years from 25th March 1978 of a flat and maisonette at 169, Fortess Road, Tufnell Park, NW5, at a rent of £400. In the lease there was a tenant's covenant not to assign without consent in writing of the landlord. There was no full repairing covenant, but a tenant's covenant to keep the interior of the demised premises in complete repair.
By section 19, sub-section 1 of the Landlord and Tenant Act 1927, the covenant in the lease is "deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld."
By an endorsement dated 25th March 1978, Brown assigned the tenancy agreement to Madeline Wynn Higgins. She was the daughter of the servant of Cluttons, who managed this estate business of St. John's College. 169 Fortess Road was a building which, at the date of the grant, consisted of a restaurant on the ground floor let by St. John's College to three persons called Mutti for a term of fifteen years from 29th September 1975.
On 6th October 1978, St. John's College conveyed to Bromley Park Garden Estates Limited, the plaintiffs in these proceedings, No. 169, subject to the tenancy of Miss Higgins, then described as 169A, and subject to the tenancy of the ground floor restaurant held by those tenants. No. 169 was one of fifty properties conveyed, five of which had lettings of the upper parts separate from the ground floor.
At a date not in evidence, the lease of the shop was assigned by Mutti to two gentlemen called Vincenzo and Di-Palma, who traded there thereafter, in the restaurant, under the name of "Spaghetti House".
When her term had some eight months before expiry, Miss Wynn-Higgins wanted to leave the premises—her flat and maisonette—and assign it. The correspondence shows that, before she approached the defendant in these proceedings, she had offered an assignment to Di-Palma, one of the tenants of the restaurant, but he then refused the offer because they could not agree terms. So one comes to correspondence beginning on 30th August 1980.
I read and incorporate in this judgment the letter on page 29 of the bundle: "Dear John, RE: 169A Fortess Road, As discussed between us some while ago, I have on behalf of Madelene agreed to assign the Tenancy to Mr. Peter Moss who is a barrister. A Bankers' reference is enclosed but please feel free to obtain one through proper channels of your own. I am obtaining two more references which I will send on to you. I shall be glad to have your consent and am definitely certain Mr. Moss will make a good tenant. I have previously explained the reason to you as to why Madelene wants to make a move. Yours very truly Brian Wynn Higgins."
I also read and incorporate the answer at page 31, dated 4th September 1980: "Dear Brian, Tufnell Park (NW5): 169a Fortess Road Thank you for your letter of 30th August and for enclosing a Bank Reference in respect of a Mr. Peter Moss. Despite your first paragraph, I must tell you that this is the first intimation I have of a wish on your part to have your daughter assign her Lease to Mr. Moss. My clients are not in the habit of permitting assignments in respect of residential tenancies, and you and I have discussed this aspect on previous occasions. If your daughter wishes to vacate then she must surrender her Lease to the freeholder. Mr. Moss can by all means communicate directly with me and I will see whether it might be possible for a new Lease to be granted to him. In this event your daughter might perhaps be able to obtain a consideration from him for her chattels. Please let me know the intentions of your daughter, by return. Yours sincerely, John B. Broomfield."
At page 32 I read the letter from the defendant to Mr John Broomfield: "Dear Sir, As I believe you have already been informed by Brian Wynn Higgins, I am interested in taking the assignment of the remainder of the lease of this flat. It has not been made clear to me exactly what the situation is, and has been suggested that I should accordingly get in touch with you. Therefore, pursuant to clause 2(5) of the lease I ask the landlord's consent to the proposed assignment. If it is felt that such consent cannot be given I would greatly appreciate it if you could give me the reasons for this. If it will help at all I would be happy to furnish you with any character references you may need. I look forward to hearing your reply and remain Yours Sincerely, Peter Moss."
I read and incorporate Mr Broomfield's answer to the defendant on page 33 dated 12th September 1980: "Dear Sir, Tufnell Park (NW5): 169A Fortess Road Thank you for your undated letter posted on 10th September last. We act on behalf of the freeholder of the above property. Whenever our clients create an unfurnished regulated tenancy letting, they do so to the specific individual named within the tenancy. Should that tenant decide at any time that the accommodation is no longer required, then our clients expect the premises to be returned to them in reasonable condition. Thereafter, they will consider any application for a new letting which might be received. The position as explained above applies to the accommodation leased by our client here to Miss Wynne Higgins. Yours faithfully, John Broomfield & Company."
I also read Mr Brian Wynne Higgins' letter to Mr Broomfield dated 12th September 1980 at page 35: "Dear John, Thank you for your letter. I am asking Peter Moss to ring you direct. It has been intended to assign the lease for sometime since I spoke to you when Mr. Di Palma wanted it. I do not see that your clients can have any objection to it, nor have you given me any reason for objecting to it. However, no doubt you will let me know what transpires between you and Peter Moss. Sincerely Bryan Wynn Higgins."
Finally, I read at page 36 the letter of Mr Broomfield to Mr Wynn Higgins, wherein he refused to assign to any other party, but required surrender of Miss Wynn Higgins' tenancy, dated 16th September 1980: "Dear Brian, Tufnell Park (NW5): 169a Fortess Road Thank you for your letter dated 12th September last. I have received a communication recently from Mr. Moss, and have replied to him. I do not wish you to be under any misapprehension as to my clients intentions, or to find that the correspondence becomes prolonged. It must be clearly understood, therefore, that under Clause 2 (5) of the Lease which your daughter now holds by way of an Assignment, my clients will not agree to the Assignment of the tenancy of the flat to any other party. Should your daughter now wish to vacate the accommodation, therefore, I call upon you to hereby surrender the tenancy of same, which in any event is due to expire on the 25th March next year. Yours sincerely, John B. Broomfield."
The reason given throughout the correspondence by Mr Broomfield on behalf of the plaintiffs was that it was the plaintiffs' policy not to permit assignments of residential tenancies. They required surrender instead. Taking the view that this was an unreasonable refusal, Miss Wynn Higgins on 17th September 1980 assigned her interest to the defendant, as she was entitled to do having regard to the view that she took of the unreasonable quality of the refusal. On the same day the defendant gave notice of the assignment to the landlords. This was followed on 3rd October, page 38 of the bundle, with the landlords' formal notice to the assignee of breach of covenant, requiring him to remedy the breach. Notice is at page 39 of the bundle.
On 17th November 1980 the plaintiffs issued a plaint, being a plaint for possession of the demised premises, with the particulars of claim founding the claim for possession upon the assignor's breach of covenant which was also a breach by the assignee who, by the assignment, had assumed the obligations of the assignor owed to the landlord.
On 1st October 1980 the defendant moved in. On 21st March 1981, on his behalf, his solicitors filed a defence and counterclaim. In those pleadings the defendant pleaded that, "By a letter dated 30th August 1980 the Plaintiffs' consent to the said assignment was sought by the previous assignees and on 4th September 1980 the plaintiffs, through their agents refused to give consent stating, inter alia, 'My clients are not in the habit of permitting assignments in respect of residential tenancies.'" The defendant pleaded that the withholding of the consent by the landlords was unreasonable.
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