Critchley v Clifford
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS |
| Judgment Date | 07 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0707-2 |
| Court | Court of Appeal |
| Date | 07 July 1961 |
[1961] EWCA Civ J0707-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Danckwerts
MR J. EDWARD JONES (instructed by Messrs Helder Roberts & Co., Agents for Messrs John A. Behn, Twyford & Reece, Liverpool) appeared as Counsel for the Appellant.
MR K.W. DEWHURST (instructed by Messrs Hatchett, Jones & Co., Agents for Messrs Hodgson & Sons, Preston) appeared as Counsel for the Respondent.
: This is on appeal from a decision of his Honour Judge Frasor Harrison given at Liverpool on the 26th October 1960 when he decided that the landlord of a cottage in Liverpool was entitled to possession against the then occupying tenant and made an order to that effect. This appeal is on behalf of the tenant and the respondent is, of course, the landlord, The facts are as follows: The appellant has been the tenant since 1944 or thereabouts of a cottage known as 35 Mill Brow, Spoke, Liverpool. At the tine of the original tenancy the weekly rent was £ 7s.6d, per week but there have been subsequent increases and today it is £1 per week. The landlord is not the owner of the freehold of the cottage in question. Were he the landlord, there would be no question but that the tenant would be entitled to the protection of the Rent Restriction Act. The landlord is himself a tenant of Towitt Hall Farm, Spoke, which is a farm of about 200 acros and therefore the Agricultural Holdings Act 1948 applies to these promises. The cottage in question is a cottage on the farm which was lot to the landlord by the Liverpool Corporation as part of the farm. The appellant, however, takes no port in the running or management of the farm but uses the cottage entirely for the purposes of occupation by himself and his family. It was contended successfully before the learned County Court Judge that as the Rent Restriction Acts operated in rem and not in per-sonam the Acts did not apply to the premises in question and in the circumstances the tenant was not entitled to protection.
This, of course, is a very difficult problem and it is one upon which there is a surprising dearth of authority. It may be that this question has orison on other occasions before Judges of County Courts but that by reason of the small amount involved or for other good reason no case similar to this appears to have come before this Court. There was, however, a case on very similar lines before his Honour Judge Harold Brown in the Liverpool County Court prior to this case and it would appear that his Honour Judge Fraser Harbison with very good reason chose to adopt the reasoning of Judge Harold Brown in that case and in giving his Judgment referred at length to the previous Judgment. The previous case was to a very large extent on all fours with the presant one and in those circumstances it is hardly surprising that the 1earned County Court Judge, having given the matter careful consideration, decided to adopt the reasoning and the language employed by his brother Judge.
The relevant section of the Act of Parliament which we have to consider is Section 12(2)(iii) of the Act of 1920, which is as follows: "For the purposes of this Act any land or promises lot together with a house shall, if the rateable value of the land or promises lot separately would be loss than one quarter of the rateable value of the house, be treated as part of the house, but subject to this provision this Act shall not apply to a house let together with land other than the site of the house". There can be no doubt that in the circumstances of this case this sub-section applies, and it is clear that the farm and buildings lot with the farm are not within the purpose of the Rent Restriction Act. It is contended, therefore, on behalf of the landlord that as the Rent Restriction Acts operate in rem and not in personam, the exception was created when the tenancy was granted by the Liverpool Corporation to the landlord, and in those circumstances any intermediate letting was likewise deprived of the protection of the Acts, and the issue in this case is whether in the circumstances the Rent Restriction Acts apply to this particular letting or whether the effect is to exclude this letting from the protection of the Acts, thereby justifying an order for possession of the cottage.
The landlords in this case relied upon the case of Rudior v. franks, a case reported in 1947 1 King's Bench Division, p. 530. That was a decision of the Divisional Court and the Judgment was given by Lord Goddard, then Lord Chief Justice. That was a case of a tenant of a farm hold on lease from the Crown and therefore Crown property. A cottage on the form was lot to a tenant and the tenant of the farm subsequently sought to recover possession of the cottage by a warrant under the Small Tenements Recovery Act 1838. The Justices refused to grant the warrant, holding that as between the landlord and tenant of the cottage the Rent Restriction Acts applied, and it was hold that the Rent Restrictions Act did not apply as the cottage was Crown preperty and the Crown was not affected by the Rent Restriction Acts, as they applied in rem and not in personam. Lord Goddard in the course of his Judgment said: "So far as this Court is concerned, it seems to me that the case is concluded by the decision of the Divisional Court consisting of Lord Hanworth, Master of the Rolls, and Lord Justice Homer sitting as additional Judges of the King's Bench Division in Clark v. Downes. That case has also been considered and must be taken as approved by the Court of Appeal, of which the same two Judges were members, in Wirral Estates Ltd. v. Shaw. As I understand the decision, it is this The Rent Restriction Acts apply in rem and not in personam. The meaning of that is that the Rent Restriction Acts attach or apply to the property itself and, therefore, as the Crown is not bound by the Rent Restriction Acts, the cottage or house a long as it remains Crown property never becomes affected by them. If the tenancy of the cottago had been granted by the Crown, I think no one could have disputed the fact that the Rent Restriction Acts would not apply because the Crown, not being named in tho Acts, obviously upon all the well known rules of construction is not affected by the Acts The reason why the Acts do not apply when the tenant of the Crown creates a sub-tenancy is first because, as I have just said, the Acts operate in rem and not in personam and so are never attached to the house at all It was also pointed out by Lord Justice Homer that the Crown's rights would or might be affected because if the Crown sold the reversion the Crown would probably receive a loss sum for the property if the Acts applied than if they did not apply because the purchaser would not be able to obtain possession". It is to be observed that the Crown was dealing with property which was owned by the Crown and remained Crown property and It was well established that the Rent Restriction Acts did not apply to Crown property. There was some modification of this rule in 1952 but there is no doubt that in 1947 the rule was in force, and in the circumstances if property was originally Crown property, it remained so far as long as the reversion was the property of the Crown, however many lettings and sub-letting there were. In the circumstances any sub-letting of the property would be subject to the same properties and characteristics as the original letting and the principal characteristic as far as this case is concerned is that, being Crown property, the Rent Restriction Acts would not apply. The question this Court has to consider is whether in the circumstances of this case the Rent Restriction Acts would not apply because the original letting by tho Liverpool Corporation to the plaintiff's landlord was the letting of something which was outside the scope of the Acts It was argued by Counsel for the respondent that this was certainly a case where the Acts did not apply and therefore the Court was acting proporly in making an order for possession, The operation of the Rent Restriction Acts being in rem, therefore a characteristic must have attached itself to this property at the time of the original letting by the Liverpool Corporation just as though the property were Crown lands, and in those circumstances that particular characteristic could not be detached from any portion of the lotting if there was a sub-lotting by the tenant from the Liverpool Corporation to a sub-tonant.
This appears on the face of it to be a formidable argument, but of course it depends to a very large extent on the proper construction of the words of Section 12(2) iii) of the Act of 1920 I have already road that sub-section and do not wish to do so again It is to be noted however, that the section refers to land or promises let together with a house, and later to a house lot together with land other than the site of the house, and it appears to so that the material part of the sub-section which we have construe is the meaning of the word "lot" If the word "lot" relates back to the original tenancy between the Liverpool Corporation and the present landlord, then of course the landlord's contention here is the right one. If on the other hand it relates only to the contract of tenancy if contract there was between the present landlord and the present tenant then for my part I fall to be see how can apply in the circumstances of the present case. The clue to the decision in this case may well be on a decision of the court in the case of Prout v. Huntor 1924, 2 king's "By paragraph 1 of the premise to section 12, sub-section 2 of the Increase of Rent etc. Act 1920 This Act shall not save as otherwise expressly provided apply to a dwelling house bone fide let at rent...
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