Commissioners of Crown Lands v Page

: By a lease dated the 23rd November 1937 and made between the King's Most Excellent Majesty of the first part, the Commissioners of Crown Lands of the second part, and one Rudolph Edgar Francis de Trafford of the third part, there was demised to the party of the third part for a term of twenty-five years from the 5th July 1937 the premises known as No.4 Cornwall Terrace and the mews adjoining in the Borough of St. Marylebone in London. The terms of the lease were in common form, and need not be recited. They did not include any covenant for quiet enjoyment. The unexpired term of the lease was by deed dated the 14th January 1939 duly conveyed to Una Lady Handley Page, the defendant named in the present proceedings. On the 22nd February 1945 the Minister of Works, on behalf of the Crown and in exercise of the powers conferred by the Defence Regulations, requisitioned the premises, the subject of the lease, and took (and thereafter until the 3rd September 1955 retained) possession thereof.

From the date of such requisition, no rent was paid and the claim in the present proceedings was for the sum of £3,260, being arrears of rent alleged to be due under the lease from the 5th April 1945 until the 5th July 1955. The defendant in her defence relied (inter alia) on the Limitation Act 1939, and the validity of that defence has been conceded so as to limit the claim in the action to the amount of rent alleged to be due in respect of the period of six years immediately preceding the date of the writ.

Una Lady Handley Page died after the commencement of the suit; and accordingly, by virtue of an order made in the action on the 4th September 1957, proceedings have since been carried on against Sir Frederick Handley as executor of the original defendant. As Sir Frederick Handley Page in fact acted at all material tines on his wife's behalf in relation to the requisition of the premises, I shall hereafter in this Judgment treat Sir Frederick Handley Page as though he had been at all material times the assignee of the term granted by the lease, and had been the defendant in the action since its commencement.

The short point raised in the action and the appeal is whether the exercise by the Minister of Works of the power of requisitioning the house and premises at No.4 Cornwall Terrace operated as an "eviction" of the lessee as that term is properly understood. It has been conceded that for the purposes of the case the Crown must be regarded as one and indivisible so that the lesser of the property, namely, the Crown, must be treated as having itself requisitioned the property which it (the Crown) had demised, and to have thereby ousted its own lessee from the right of occupation thereof during the period of the requisition? and it has also been conceded that if in truth there was an "eviction", then (at least during the period of its operation) the rent under the lease was suspended. It is then necessary first to ascertain what in law amounts to an eviction, for it is clear that it is not every disturbance of the lessee's enjoyment of his right of occupation that so qualifies.

In Foa on Landlord and Tenant (8th edition) at page 159 it is stated; "To constitute an eviction at law the lease must establish that the lesser without his consent or against his will wrongfully entered upon the demised premises and evicted him and kept him se evicted; but if the lessee has sublet, eviction of his under-tenant will, for this purpose, be "an eviction of himself. But actual physical expulsion is not necessary; any act, if of a permanent character done by the lessor or by his procurement with the intention of depriving the tenant of the enjoyment of the premises demised or any part of then, will be sufficient".

The language used in Foa is closely similar to that found in volume 23 of the 3rd edition of Halsbury's Laws of England where (see paragraph 1211 at page 552) it is stated; "To constitute an eviction for this purpose it is not necessary that there should be an actual physical expulsion from any part of the premises; any act of a permanent character done by the landlord or his agent with the intention of depriving the tenant of the enjoyment of the demised premises or any part thereof will operate as an eviction. Thus there is an eviction if the landlord enters and uses the premises, the tenant remaining in possession; though a more trespass by the landlord is not sufficient. It seems that it will be an eviction if the landlord induces the under-tenant to leave by notice to quit 30 that the promises are left unoccupied". It will be observed that the citation in Halsbury does not state that the landlord's action must be "wrongful", though Mr. Dunn, as I understood his argument before us, accepted that the landlord'a action must have that characteristic to constitute an eviction. It will, however, also be observed from the succeeding paragraph in Halsbury that where a tenant goes out of occupation so as to leave the property vacant; a landlord will protect himself from the effects of an eviction if he relets the property on the tenant's account, giving notice to the tenant accordingly, a proposition supported by the authority of Walls, v. Atchison; volume 3 Bingham, page 462.

Mr. Dunn, in opening the case for the appellant, cited to us the case of Upton v. Townend (volume 17 Com ion Bench Reports, page 30; volume 139 English Reports, page 976) a case which, as appears from the textbooks above mentioned, provides much of the foundation for the passages cited. In Upton v. Townend certain premises subject to demises to two lessees had been destroyed by fire, and their reconstruction by the Goldsmiths Company (who wore treated as equivalent to the landlord or his agent) was such that the identity of the respective demised premises was lost, and possession by the lessees of the true subject-matter of the demises thenceforth made impossible. It was held that there had been eviction of both lessees. Chief Justice Jarvis at pages 64, 65 of the Common Bench report (page 991of the English Reports) after stating that "eviction" had formerly connoted expulsion by title paramount, and that it was extremely difficult to define its then meaning with technical accuracy, continued; "Getting rid then of the old notion of eviction I think it may now be taken to mean this -not a more trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises". Mr. Justice Williams, at page 68 of the Common Bench Reports (page 993 of the English Reports) said this: "There clearly are some acts of interference by the landlord with the tenant's which do not amount to an eviction, enjoyment of the promises but which may be cither more acts of trespass or eviction according to the intention with which they are done. If those acts amount to a clear indication of intention on the landlord's part that the tenant shall no longer continue to hold the premises, they would constitute an eviction".

Finally I cite from Mr. Justice Willes at page 75 of the Common Bench Reports (page 995 of the English Reports) who did not, however, in terms attempt a definition so much as a conclusion of the effect of what the landlord in that case had done. He said "In both cases, as it seems to me, the tenant was by an act of the landlord, which was intended to be and was of a permanent character, deprived of the perfect and convenient use of the thing demised".

From the citations which I have made, it seems to me that the act of the landlord (or his agent) in order to constitute an eviction at law must at least have certain characteristics which, though they have not been (and may not indeed be capable of being) precisely defined, will be regarded as satisfied or not satisfied according to the standards of common sense and ordinary understanding in the light of the facts of each particular case. I leave aside at this stage the question of the "wrongfulness" of the landlord's act. But apart from any requisite of wrongfulness; the landlord's act must (1) be of a "permanent character", and (2) be done with a particular "intention", namely, that of disabling the tenant from continuing to "hold" the subject of his demise, or of depriving him of the "enjoyment" of the thing demised, or same part thereof. I add (and I think It important for reasons later appearing) that a disturbance of the requisite quality of a sub tenant will operate as an "eviction" of the lessee himself, Does the exercise of the statutory power of requisition have the required characteristics to constitute an eviction? I have come to the conclusion that it does not.

The act of requisitioning was done pursuant to Defence Regulation 51, a Regulation originally made pursuant to the Emergency Powers (Defence) Act 1939, but later continued in operation by virtue of the Supplies & Services (Transitional Powers) Act 1945. Its effect was the "taking of possession or control behalf of His Majesty" of the house in Cornwall Terrace; and its purpose and justification...