Diana Mary Paterson (Respondent v David Aggio and Mrs. Aggio (Appellants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR. JUSTICE BUSH |
| Judgment Date | 31 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0731-6 |
| Date | 31 July 1987 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0843 |
[1987] EWCA Civ J0731-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE BARNET COUNTY COURT
(His Honour Judge Stockdale)
Royal Courts of Justice
Lord Justice May
and
Mr. Justice Bush
87/0843
MR. R.J. FURBER (instructed by Messrs Turner & Debenhams, Herts.) appeared on behalf of the Respondent/Applicant.
MR. D.R. WATKINSON (instructed by Messrs Bindman & Partners) appeared on behalf of the Appellants/Respondents.
This is a tenants' appeal against an order for possession of a dwelling-house in South Mimms, Hertfordshire made against them by His Honour Judge Stockdale on 4th February 1987 in the Barnet County Court.
There has throughout been only one point in this case. The landlord, who is the respondent before us, granted the tenants what she contended was a protected shorthold tenancy within section 52 of the Housing Act 1980. The tenants contended that their tenancy was not one within section 52 and that they were accordingly entitled to the protection of the Rent Act 1977. The learned judge held against the tenants' contentions and made the order for possession.
The relevant provisions of the Housing Act 1980 are contained in section 52 (1) (a) and are to this effect:
"A protected shorthold tenancy is a protected tenancy granted after the commencement of this section which is granted for a term certain of not less than one year nor more than five years and satisfies the following conditions, that is to say—
(a) it cannot be brought to an end by the landlord before the expiry of the term, except in pursuance of a provision for re-entry or forfeiture for non-payment of rent or breach of any other obligation of the tenancy;….."
The written tenancy agreement between the parties of 23rd February 1982 contained the usual clause incorporating fifteen common form covenants to be observed by the tenants and then included the following usual type of proviso for re-entry:
"(6) PROVIDED ALWAYS and it is hereby agreed that:
(a) If the rent hereby payable or any part thereof shall be unpaid for fourteen days after becoming payable (whether formally demanded or not) or if any agreement or stipulation on the Tenant's part herein contained shall not be performed or observed or if the Tenants or other person or persons in whom for the time being the term hereby created shall be vested shall become bankrupt or enter into any composition with his creditors or if the premises should be left vacant or unoccupied for more than twenty-one days then and in any of the said cases it shall be lawful for the Landlord at any time thereafter to re-enter upon the said premises or any part thereof in the name of the whole and thereupon this tenancy shall absolutely determine but without prejudice to the right of action of the Landlord in respect of any breach of the Tenant's agreements and stipulations herein contained."
The tenants' contention has been that on the proper construction of this proviso for re-entry the tenancy could be brought to an end before the expiry of the fixed term if, for instance, the tenants should go bankrupt or make a composition with their creditors. It was submitted that there is no "obligation" in the tenancy agreement on the tenants not to go bankrupt. Thus the tenancy agreement did not satisfy section 52 (1) (a) of the 1980 Act which I have quoted and consequently could not be a protected shorthold tenancy. Consequently upon the determination of the tenancy the tenants were entitled to the protection of the Rent Acts and the landlords were not entitled to the order for possession made by the learned judge.
In arguing this appeal before us, counsel for the tenants submitted that the word "obligation" in the relevant statutory provision had to be construed as meaning a legal obligation of the tenancy imposed upon the tenant. This he submitted was borne out by the definition of "obligation" in the Shorter Oxford Dictionary: "The action of binding oneself by oath, promise, or contract to do or forbear something; a binding agreement; also, that to which one binds oneself, a formal promise." The next definition in the Dictionary refers in particular to the use of the word in the Law. Counsel contrasted the first part of the proviso for re-entry, where the reference is to "any agreement or stipulation on the Tenant's part herein contained" and the second part which, he submitted, does not refer to any "obligation", properly so-called, on the tenants but merely to certain eventualities which, if they occurred, would entitle the landlord to re-enter. He drew our attention to the similar contrast that there is between the wording of Case 1 of Schedule 15 to the Rent Act 1977 on the one hand and that of section 3 (1) of the same statute on the other. The former entitles a landlord to possession "where any rent lawfully due from the tenant has not been paid, or any obligation of the protected or statutory tenancy which arises under this Act….. has been broken or not performed." The latter refers not to an obligation of a tenant or tenancy but to the "terms and conditions of the original contract of tenancy". Counsel submitted that the latter part of the proviso for re-entry in the present case fell more appropriately within the phrase "terms and conditions of the tenancy" rather than within the words in Case 1 of Schedule 15 "any obligation of the tenancy".
In further support of his contention about how the word "obligation" in a statute should be construed,...
To continue reading
Request your trial