Clays Lane Housing Co-Operative Ltd (Plaintiffs v Beverley Patrick and Another (Defendants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX |
| Judgment Date | 21 November 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1121-2 |
| Date | 21 November 1984 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0512 |
[1984] EWCA Civ J1121-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
(HIS HONOUR JUDGE DOBRY)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Fox
and
Lord Justice Purchas
84/0512
Case No. 8313834
and
MR. T. BARNES QC and MR. GUY MANSFIELD (instructed by Messrs. ColIyer-Bristow, Solicitors, London WC1R 4DF) apepared on behalf of the Plaintiffs (Appellants)
MR. J. MACDONALD QC and MR. M. ROWLAND (instructed by Messrs. Bowling & Co, Solicitors, Stratford E15 1NG) appeared on behalf of the Defendants (Respondents)
The issue in this appeal is whether a provision in a tenancy agreement constitutes a provision for forfeiture so that the court must grant relief.
By clause 2 of a tenancy agreement of 19th February 1983 and made between the plaintiff, Clays Lane Housing Co-operative Ltd. ("the Co-operative") and the defendants, Beverley Patrick and Eric Garraway (who in the agreement are referred to as "the Member", the Co-operative let to the defendants a room at 8 Taylor Court, Clays Lane, London, SE15. (to which we will refer as "the Property" but which in the agreement is called the "the Accommodation"), for one week from 1st January 1983
"and thereafter from week to week until brought to an end either by the Co-operative or the Member giving to the other not less than four weeks' notice in writing".
The rent was £24.70 per week. Clause 7 is headed "Ending the Tenancy" and clause 7 (b) is in the following terms:
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"(a) This Agreement may be ended at any time by either the Co-operative or the Member giving to the other not less than four weeks' written notice.
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(b) The Co-operative may give the Member four weeks' written notice that the tenancy is terminated for any of the following reasons:
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(i) any rent due from the Member has not been paid and the Member, after being given notice of the amount of the arrears, has made no offer to pay those arrears within a reasonable period, or has unreasonably failed to fulfil an undertaking previously given to clear arrears;
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(ii) the Member makes structural additions or alterations to the Property without written consent of the Co-operative;
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(iii) the Member is in breach of the conditions laid down in the Agreement concerning sub-tenants, lodgers or guests, sharing or parting with possession or occupation of the Accommodation or any part of it and has taken no steps to remedy this situation after having received written notice of the breach of the Agreement signed by the Chairman and Secretary of the Co-operative;
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(iv) by his conduct, the Member or other person residing in the Property is the cause of persistent nuisance or annoyance to neighbours or wilful damage or neglect to the Property, including the Accommodation, or adjoining property or common parts or the Co-operative's furniture and fittings and no steps have been taken by the Member to remedy this after receiving written notice of the breach of the Agreement signed by the Chairman and Secretary of the Co-operative;
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(v) the Member or other person residing in the Property has been convicted of using the dwelling or allowing it to be used for illegal purposes;
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(vi) possession is required for redevelopment or major rehabilitation and after consultation the Co-operative has offered the Member suitable alternative accommodation which has been refused.
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(vii) the Co-operative was induced to grant the tenancy by a false statement made knowingly by the Member;
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(viii) the dwelling is overcrowded, within the meaning of the Housing Act 1957, in such circumstances as to render the occupier guilty of an offence;
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(ix) the dwelling was made available for occupation by the Member while their own home was being improved on the understanding that they would return to their own home when those works were completed, and those works have been completed.
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(x) the tenant has ceased to be a member of the Co-operative;
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(xi) the Member is using the Property for business or commercial purposes, or is not using the Accommodation as a principal place of residence;
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(xii) the Member has benefitted financially or materially by virtue of his membership of the Co-operative and this has not been declared to the Co-operative;
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(xiii) the Member is in breach of clauses 6 (q) or 6 (r) of the Agreement and has taken no steps to remedy this situation after having received written notice of the breach of this Agreement, signed by the Chairman and Secretary of the Co-operative".
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Clause 6 (q) imposes an obligation on the tenant, where the accommodation is a one person room, to use the accommodation for the exclusive single occupation of the Member. Clause 6 (r) imposes obligations regarding the use of two person flats.
By June 1983 the defendants were in arrear with the rent. On 3rd June 1983 the Co-operative gave the defendants notice to quit expiring on 4th July 1983. It is not in dispute that under the provisions of clause 7 (b) (i) the Co-operative was entitled to give such notice to quit. The defendants having failed to give up possession, the Co-operative in August 1983 instituted the present proceedings in the Bow County Court for possession of the property, mesne profits and arrears of rent. On 17th October 1983 the Registrar made an order for possession and an order for payment of £260.90 in respect of arrears of rent and mesne profits. From that order there was an appeal to the judge. We should mention that, at some point, the defendant Eric Garraway left the property so that the defendant Beverley Patrick is now in sole possession. For present purposes nothing turns on that.
The appeal was heard by Judge Dobry QC. Two questions arose for decision, namely:
(1) Is the tenancy created by the agreement of 19th February 1983 a "secure tenancy" for the purposes of the Housing Act 1980, s.28? The judge held that it is not. There is no appeal from that decision.
(2) Are the defendants entitled to relief from forfeiture? The judge held that clause 7 (b) (i) constituted a right of re-entry or forfeiture and that accordingly s.191 of the County Courts Act 1959 (now s.138 of the County Courts Act 1954) was applicable. S.191, so far as material, is as follows:
"191. Provisions as to forfeiture for non-payment of rent
(1) Where a lessor is proceeding by action in a county court (being an action in which a county court has jurisdiction) to enforce against a lease a right of reentry or forfeiture in respect of any land for non-payment of rent, the following provisions shall have effect—
(a) if the lessee pays into court not less than five clear days before the return day all the rent in arrear and the costs of the action, the action shall cease, and the lessee shall hold the land according to the lease without any new lease;
(b) if the action does not cease as aforesaid and the court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture, the court shall order possession of the land to be given to the lessor at the expiration of such period, not being less than four weeks from the date of the order, as the court thinks fit, unless within that period the lessee pays into court all the rent in arrear and the costs of the action;
(c) if, within the period specified in the order, the lessee pays into court all the rent in arrear and the costs of the action, he shall hold the land according to the lease without any new lease, but if the lessee does not, within the said period, pay into court all the rent in arrear and the costs of the action, the order shall be enforced in the prescribed manner, and so long as the order remains unreversed the lessee shall be barred from all relief.
Provided that, where the lessor is proceeding in the same action to enforce a right of re-entry or forfeiture on any other ground as well as for the non-payment of rent, or to enforce any other claim...
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Croydon London Borough Council v Chipo Kalonga
...the tenant, so as to attract an entitlement of the tenant to seek relief from forfeiture, as traditionally described in Clays Lane Housing Co-operative Ltd v Patrick (1984) 17 HLR 188, p 193 per Fox LJ (see further below). Section 146 of the LPA is all about, and only about, early terminati......