Crago v Julian
| Jurisdiction | England & Wales |
| Judge | THE VICE-CHANCELLOR,LORD JUSTICE RUSSELL,LORD JUSTICE LEGGATT |
| Judgment Date | 21 November 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1121-7 |
| Docket Number | 91/1078 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 1991 |
[1991] EWCA Civ J1121-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(HIS HONOUR JUDGE MACNAIR)
Royal Courts of Justice
The Vice-Chancellor
(Sir Donald Nicholls)
Lord Justice Russell
Lord Justice Leggatt
(Not Present)
91/1078
MR DAVID PHILLIPS, instructed by Messrs Philcox Gray & Co., appeared for the Appellant (Defendant).
MR GUY FETHERSTONEHAUGH, instructed by Messrs Stafford Young Jones, appeared for the Respondent (Plaintiff).
Mrs Julian has lived in a rented flat on the first floor, 55 Hollingbourne Road, London S.E.24 since early 1966. She lived there with her husband, and subsequently with their children, from the time of their marriage in March 1966.The flat was rented on a weekly tenancy from the plaintiff, Mrs Crago. The flat was the Julians' matrimonial home and, although it was in the sole name of Mr Julian, they assumed that the tenancy belonged to them jointly.
In 1982 Mr and Mrs Julian were divorced. Mr Julian left the flat and had nothing further to do with it. In the matrimonial proceedings he gave an undertaking:
"…within 14 days of the granting of the Decree Absolute herein to do all acts and things as may be necessary to transfer to the Petitioner the tenancy of the flat situate at 55 Hollingbourne Road, London, S.E.24 and which Tenancy is presently vested in his sole name."
Nothing was done to transfer the tenancy. Mr and Mrs Julian assumed that nothing further needed to be done. They assumed that the effect of the document was to transfer Mr Julian's interest in the flat to his wife.
Mrs Julian stayed in the flat. The two children grew up and eventually left. Mrs Julian paid the rent. She alone dealt with the managing agents. She spent substantial sums of money on the flat in the belief that she was a protected tenant. New rent books were issued by the agents, one in February 1983 and another in November 1986, both naming Mr Julian as the sole tenant. In 1987 Mrs Julian experienced some difficulty with housing benefit. She wrote to the managing agents and asked them to change the name of the tenant shown in the rent book from her former husband to herself. She thought there would be no difficulty about this. She wrote:
"Could I now have the tenancy (of 55 Hollingbourne Rd) changed over to my name please. If you still need a letter from my ex-husband, it could be arranged….P.S. Here is a copy of the divorce paper stating transferring the tenancy to me. Thanking you."
That was on 8th October 1987.
Unfortunately for Mrs Julian, the agents were not willing to do this. They refused to accept further payments of rent from her. Until they received this letter the agents did not know Mr Julian had moved away and given up all interest in the tenancy. A few months later they served on Mr Julian a notice to quit dated 18th February 1988, terminating his tenancy from 14th March 1988. Because he was no longer in possession, he did not become entitled to any statutory protection. Proceedings against Mrs Julian, seeking possession of the flat, were begun by Mrs Crago in the Lambeth County Court on 28th March 1988. The trial took place before Judge MacNair, and he gave judgment in favour of the lessor, Mrs Crago, on 17th May 1990.
There were several issues before the judge. He held, first, that the contractual tenant was Mr Julian alone; secondly, that the tenancy was never assigned to Mrs Julian; thirdly, that the tenancy was not determined until the expiry of the notice to quit in March 1988; and, fourthly, that the plaintiff was not estopped, by the conduct of herself or her agents, from claiming possession from Mrs Julian. On this appeal, brought by Mrs Julian, only the second of those four determinations is being challenged. That is the only issue before us in this court. Counsel for Mrs Julian accepted that for him to succeed on this appeal he must establish that, before the notice to quit expired, Mr Julian had assigned the tenancy to his former wife.
On the issue of assignment the judge found that the tenancy did not include a term prohibiting assignment. But he decided against Mrs Julian on two grounds: first, that as a matter of law, the tenancy could only be assigned by deed and, secondly, that even if an assignment could be made orally, there were here no words or conduct which could give rise to an assignment. The judge reached his overall conclusion with reluctance. He said that the consequences for Mrs Julian, if she lost, were very serious. No reason had been given by Mrs Crago for wishing to get Mrs Julian out of the flat which for so long had been her home; and Mrs Julian's lack of statutory protection stemmed simply from these parties, inexperienced in legal matters, not having executed a formal deed of assignment of the tenancy. Had either Mrs Julian or her former husband realised a deed was necessary, there would have been no difficulty in getting one drawn up by a solicitor and executed by them.
I turn first to the question of law: could this tenancy be assigned effectively only by deed? I can start with the summary of the law set out in Megarry and Wade on the Law of Real Property, 5th edition, p.665:
"A legal lease, once created, can be transferred inter vivos only by deed, in accordance with the general rule. This applies to all legal leases, even those created orally, e.g. a yearly tenancy. However, on principles similar to those applicable to the creation of leases, an oral or written assignment will be effective in equity as between the assignor and the assignee as a contract to assign, if sufficiently evidenced by writing or part performance."
In the present case nothing less than an assignment at law will assist Mrs Julian. The view stated in Megarry and Wade is also expressed in all the other leading textbooks on this subject. Undaunted, Mr Phillips contended that these views are erroneous. The general rule mentioned by Megarry and Wade is a reference to certain provisions in the Law of Property Act 1925. Mr Phillips submitted that, properly interpreted, these provisions do not preclude a valid assignment otherwise than by deed of a lease which has been created orally.
The statutory provisions are to be found in Part II of the Law of Property Act 1925. The material parts of the relevant sections, sections 52 to 54, provide:
"52.-(1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.
(2) This section does not apply to-
(a) assents by a personal representative;
(b) disclaimers made in accordance with section fifty-four of the Bankruptcy Act, 1914, or not required to be evidenced in writing;
(c) surrenders by operation of law, including surrenders which may, by law, be effected without writing;
(d) leases or tenancies or other assurances not required by law to be made in writing;
(e) receipts not required by law to be under seal;
(f) vesting orders of the court or other competent authority;
(g) conveyances taking effect by operation of law.
53.-(1) Subject to the...
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