Dr Sonny Lie (Claimant/Appellant) v Dr Rajan Mohile
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Underhill,Lord Justice Vos |
| Judgment Date | 09 May 2014 |
| Neutral Citation | [2014] EWCA Civ 728 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2014 |
| Docket Number | Case No: B2/2014/0697 |
[2014] EWCA Civ 728
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HER HONOUR JUDGE WALDEN-SMITH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Underhill
Lord Justice Vos
Case No: B2/2014/0697
Mr Oluwaseyi Ojo (Solicitor Advocate) (instructed by Taylor Wood Solicitors) appeared on behalf of the Claimant
Mr Martin Palmer (instructed by Attwood & Co Solicitors) appeared on behalf of the Defendant
This is an appeal from an order of Her Honour Judge Walden-Smith which was made on the hearing of a preliminary issue in proceedings under Part 2 of the Landlord and Tenant Act 1954. It raises a short point on the construction of section 41A of the Act and in particular as to whether one of two existing partners who were both the tenants of the relevant holding under the existing lease is entitled to make an application for a new tenancy under section 24 of the 1954 Act.
This court held in Jacobs v Chaudhuri [1968] 2 QB 470 that the word "tenant" for the purposes of section 24(1) meant all the joint tenants in whom the legal estate was vested. On this basis the request and claim for a new tenancy would have to be made by both partners and cannot be validly made by one alone. But the 1954 Act was amended so as to reverse the effect of the decision in Jacobs v Chaudhuri and section 41A now permits an exception to the rule in the case of partnerships where not all of the joint tenants continue to use the demised premises for the purpose of the partnership business.
Section 41A was introduced by section 9 of the Law of Property Act 1969 and is in the following terms:
"(1) The following provisions of this section shall apply where-
(a) a tenancy is held jointly by two or more persons (in this section referred to as the joint tenants); and
(b) the property comprised in the tenancy is or includes premises occupied for the purposes of a business; and
(c) the business (or some other business) was at some time during the existence of the tenancy carried on in partnership by all the persons who were then the joint tenants or by those and other persons and the joint tenants' interest in the premises was then partnership property; and
(d) the business is carried on (whether alone or in partnership with other persons) by one or some only of the joint tenants and no part of the property comprised in the tenancy is occupied, in right of the tenancy, for the purposes of a business carried on (whether alone or in partnership with other persons) by the other or others.
(2) In the following provisions of this section those of the joint tenants who for the time being carry on the business are referred to as the business tenants and the others as the other joint tenants.
(3) Any notice given by the business tenants which, had it been given by all the joint tenants, would have been-
(a) a tenant's request for a new tenancy made in accordance with section 26 of this Act; or
(b) a notice under subsection (1) or subsection (2) of section 27 of this Act;
Shall be treated as such if it states that it is given by virtue of this section and sets out the facts by virtue of which the persons giving it are the business tenants; and references in those sections and in section 24A of this Act to the tenant shall be construed accordingly.
(4) A notice given by the landlord to the business tenants which, had it been given to all the joint tenants, would have been a notice under section 25 of this Act shall be treated as such a notice, and references in that section to the tenant shall be construed accordingly.
(5) An application under section 24(1) of this Act for a new tenancy may, instead of being made by all the joint tenants, be made by the business tenants alone; and where it is so made-
(a) this Part of this Act shall have effect, in relation to it, as if the references therein to the tenant included references to the business tenants alone; and
(b) the business tenants shall be liable, to the exclusion of the other joint tenants, for the payment of rent and the discharge of any other obligation under the current tenancy for any rental period beginning after the date specified in the landlord's notice under section 25 of this Act or, as the case may be, beginning on or after the date specified in their request for a new tenancy.
(6) Where the court makes an order under section 29(1) of this Act for the grant of a new tenancy on an application made by the business tenants it may order the grant to be made to them or to them jointly with the persons carrying on the business in partnership with them, and may order the grant to be made subject to the satisfaction, within a time specified by the order, of such conditions as to guarantors, sureties or otherwise as appear to the court equitable, having regard to the omission of the other joint tenants from the persons who will be the tenants under the new tenancy.
…"
Under section 41A(1), there are therefore four conditions which require to be fulfilled in order for a section 24 application for a new tenancy by the business tenants as defined to be a valid application: first, the lease must be vested in at least two joint tenants; secondly, the demised premises must include premises occupied for the purposes of the business; thirdly, the business must at some time during the tenancy have been carried on in partnership by all the joint tenants; and fourthly, the business must now be carried on by at least one of the joint tenants, either alone or in partnership with other persons, with no part of the property being occupied under the tenancy for the purposes of a business carried on by the other joint tenant or tenants.
The claimant and the defendant in this case are both general practitioners who provide medical services...
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...there was an express power under paragraph 6(3) of Schedule 3 of the Leasehold Reform Act 1967. (ii) Dr Sonny Lie v Dr Rajan Mohile [2014] EWCA Civ 728 Mr Dunlop BL noted that Article 32 of the Order was a direct equivalent to Section 41A of the Landlord and Tenant Act 1954. The 1954 Act wa......
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