Bromley Park Garden Estates Ltd v David Charles George
| Jurisdiction | England & Wales |
| Judge | LORD JUSTIC FARQUHARSON,LORD JUSTICE BELDAM |
| Judgment Date | 26 April 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0426-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0468 |
| Date | 26 April 1991 |
[1991] EWCA Civ J0426-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BLOOMSBURY COUNTY COURT
(HIS HONOUR JUDGE DOBRY, CBE, QC)
Royal Courts of Justice
Lord Justice Farquharson
Lord Justice Beldam
91/0468
MR G.W.RODDICK QC and MR P.J.W.REED, instructed by Messrs Bolt Burdon Slowe, appeared for the Appellant (Defendant).
MR J.R.REID QC and MISS K.J.LORD, instructed by Messrs Hamlin Slowe, appeared for the Respondent (Plaintiff).
I will ask Lord Justice Beldam to give the first judgment.
The appellant, Mr David Charles George, appeals to the court against the order of His Honour Judge Dobry of 21st May 1990 holding that the respondents, Bromley Park Garden Estates Ltd were entitled to possession of the flat occupied by the appellant and known as 237C Brecknock Road, London N9. The learned judge also gave judgment for £202.50 mesne profits and ordered the appellant to pay the costs of the proceedings but directed that this order was not to be enforced without leave of the court. The appellant has occupied the flat for over ten years. It is situated in a building which is on the apex of the corner of Fortress Road and Brecknock Road in the London Borough of Camden. The building is very close to Tufnell Park Station and has three floors. The ground floor was occupied by Barclays Bank plc and used in its banking business. The upper two floors were divided into four flats of which the appellant's flat was one. The building as a whole was known as 156–158 Fortress Road and 235 Brecknock Road. In 1968 the owners of the freehold were St.John's College, Cambridge. By a lease dated 17th January 1968 they let the whole of the building, including the four flats, to Barclays Bank for a term of 21 years from 25th December 1968. On 25th September 1978 St.John's College sold the freehold reversion to the respondents. On 1st July of the followng year Barclays Bank plc sub-let the flat No.237C Brecknock Road to the appellant for a term of two years. The appellant's sub-lease was renewed from time to time and on 27th November 1985 it was again renewed for a period of two years and thereafter from month to month.
The lease to Barclays Bank was due to expire on 25th December 1989, but on 12th April 1989 they assigned the remainder of the term to Folkard and Hayward Services Ltd, to whom I shall refer as F & H Services Ltd, who, in turn, on 22nd December 1989 surrendered their term to the respondents.
On 24th January 1990 the respondents served notice to quit on the appellant terminating his periodic tenancy on 5th March 1990. The appellant held over claiming to be entitled to the benefit of the Rent Act 1977. On 13th March 1990 the respondents issued proceedings for possession in the Bloomsbury County Court. The facts of the case as I have recited them are not in dispute and, as the learned judge held, the result of the case turned solely on questions of law. Those he said were beyond argument before him and could only be resolved in the appellant's favour in the House of Lords. Accordingly he found that the respondents were entitled to an order for possession.
Before us Mr Roddick, for the appellant, advanced two arguments in support of his contention that the appellant was a statutory tenant under the Rent Act 1977 at the date of the hearing before the learned judge. The basis of the appellant's first argument was that the periodic tenancy under which he held the flat initially from Barclays Bank and subsequently from F & H Services, was a tenancy to which the provisions of the Rent Act 1977 applied; that on the surrender by F & H Services Ltd on 22nd December 1989 of the remainder of the 21 year term his periodic tenancy continued but with the rights and obligations under its terms being transferred to the respondents. There was therefore the relationship of landlord and tenant between the appellant and the respondent and to that relationship the provisions of the Rent Act 1977 applied.
The basis of the appellant's second argument was that the appellant could rely upon Part XI of the Rent Act 1977 and in particular section 137(3). When therefore F & H Services Ltd surrendered the superior tenancy and it came to an end, the terms of the Rent Act 1977 applied in relation to his flat as if there had been a separate tenancy of the part of the premises comprising his flat. Mr Roddick acknowledged that this second argument was untenable in this court which is bound by the decision in Pittalis & Anr v. Grant & Anr [1989] 1 QB 605 and by the decision of the House of Lords in Maunsell v. Olins [1975] AC 373. Mr Roddick further acknowledged that at first sight an earlier decision of this court Cow v. Casey [1949] 1 KB 474 required the court to reject his first argument but he contended that the decision in that case was reached per incuriam and that this court should on that ground disregard it. Alternatively he said that it was a decision by a court of two judges on an appeal in an interlocutory matter and so was not binding on the court.
It is common ground that the tenancy created by the grant of the lease for 21 years to Barclays Bank was not a statutory tenancy under the Rent Act 1977. It was excluded by virtue of section 24(3) as a tenancy to...
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