Drive Yourself Hire Company (London) Ltd v Strutt

JurisdictionEngland & Wales
JudgeLORD JUSTICE SOMERVELL,LORD JUSTICE DENNING,LORD JUSTICE ROMER
Judgment Date24 November 1953
Judgment citation (vLex)[1953] EWCA Civ J1124-2
CourtCourt of Appeal
Date24 November 1953

[1953] EWCA Civ J1124-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Somervell

Lord Justice Denning and

Lord Justice Romer

Drive Yourself Hire Company (London) Limited
and
Strutt

MR L.J. BELCOURT (instructed by Messrs Merton Naydler) appeared on behalf of the Appellants (Pleintiffs).

MR L.A. BLUNDELL and MR D.J. HYAMSON (instructed by Messrs Farrer & Co.) appeared on behalf of the Respondent (First Defendant).

MR MONTAGUE WATERS (instructed by Messrs Child & Child) appeared on behalf of the Respondent (Second Defendant).

LORD JUSTICE SOMERVELL
1

In these proceedings the plaintiffs are claiming possession of a first floor flat. Under a Lease dated 27th October, 1931, the premises were let by the plaintiffs' predecessor in title to the first defendant, Miss strutt, for 20 years from 11th November, 1931. ThatLease contained a Covenant to deliver up the premises on the expiration of the term in 1951 and such delivery up was not made in circumstances which will appear. The Lease contained a Covenant not to assign or under-let without the written consent of the landlord, such consent not to be unreasonably withheld. In 1932 the first defendants desired to under-lease the premises to a Mrs. Sykes. The plaintiffs' predecessor in title a Mr. Payne, consented to this but on terms which are contained in a licence dated the 19th April, 1932, which reads as follows: "I the undersigned here by consent to an Underlease from the 1st day of April, 1932, to the 10th day of November, 1951, determinable at the option of the said Emily Strutt on the 11th day of November in any of the years 1934, 1936, 1938, 1940, 1943, 1944, 1948, or 1950, at a rent of not less than & pD;150 a year by Miss Emily Strutt of 11, Chester Street, London, to Mrs. Dorothy Sykes of 6, Deanery Street, London, of the premises demised by a Lease dated 27th day of October, 1931, and made between myself of the one part and the said Emily Strutt of the other part such Underlease to contain a covenant by the Underlease not to assign let or part with the possession of the premises or any part thereof without the warrant of myself or those claiming under me provided that this Licence is restricted to the particular Underlease hereby authorised and save as aforesaid the covenant in the said Lease contained against assignment or underletting shall remain in full force and effect".

2

One of the points in this case is whether this document is to be regarded as contractual as between the parties and if so whether it imposed any obligation on the first defendant other than the insertion of the Covenant in the sub-Lease. The period of the sub-Lease was subsequently extended to terminate one day before the head Lease. The Covenant with which the Appeal is concerned is contained inparagraph 2 (x) which is as follows: "The tenant agrees with the landlady as follows …… Not to assign underlet or part with the possession of any part of the demised premises or any part thereof without the written consent of the landlady and the Superior Landlord such consent however not be unreasonably withheld in the case of a respectable and responsible person".

3

Mrs. Sykes was minded to assign her interest in the premises to Wroxall Estates Limited. In accordance with the Covenant the consent of the first defendant and the head landlord were obtained in a document dated 26th January, 1937, which reads as follows: "We, the undersigned, Arthur Samuel Roberts Payne and Emily Strutt hereby give our licence and authority to an assignment by Dorothy Sykes of all her estute in the premises demised by a Lease dated the Twentieth day of April One thousand nine hundred and thirty two and an extension of Lease dated the Twenty first day of November One thousand nine hundred and thirty two (both made between the said Emily Strutt of the one part and the said Dorothy Sykes of the other part) unto Wroxall Estates Limited for use and occupation by Commander James George Greville Dugdale of Wroxall Abbey in the County of Warwick provided that this licence is restricted to the particular assignment hereby authorised and save as aforesaid the covenant in the said Lease contained against assignment or undorletting shall remain in full force and effect".

4

The Assignment to the second defendant by Wroxall Estates was made on 21st May 1951. The plaintiffs' consent was not asked for or obtained. The second defendant's interest came to an end on the 10th November, and the first defendant's on the 11th November. The Plaintiffs, who by that time were the reversioners, claimed possession and the second defendant alleged that he was entitled to remain in possession under section 15 (3) of the Rent Act, 1920. The sub-section reads as follows: "Where the interest of atenant of a dwelling-house to which this Act applies is determined, either as the result of an order or judgment for possession or ejectment, or for any other reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms as he would have held from the if the tenancy had continued".

5

The first point submitted on behalf of the plaintiffs is that that sub-section dose not apply to or protect assignees of sub-leases. In considering the argument one must bear in mind the definitions under section 12 (i) (f). The expression "tenant" includes any person, from tire to time, deriving title under the original agreement. Under section 12 (1) (g) the expressions "tenant" and "tenancy" include "sub-tenant" and "sub-tenancy" and the expression "let" includes "sub-let". These I think are the relevant definitions which govern the construction of the sub-section unless the context otherwise requires. It is clear, I think, that the second defendant is a sub-tenant. The fact that he is an assignee does not prevent his being a sub-tenant, but it is said that he is not a sub-tenant "to whom the premises were sub-let", the sub-letting was to . The context therefore requires that the only sub-tenant to be considered is an original sub-tenant, because the words are inapt to cover an assignee.

6

There is, I think, force in this and I doubt whether the legislature directed its attention to the position of assignees. Having regard, however, to the definition in section 12 (1) (f) and the purpose of the section to be gathered from its terms I have come to the conclusion that it should be construed as covering assignees. Leaving aside for the moment the moaning of "lawfully" it would seem clear that if the assignee is to get the protection of the section the assignment to him must be "lawful".One could imagine a case where the head-landlord was a party to the sub-Lease which required his consent for an assignment. In such a case he must plainly be able to rely on the unlawfulness of an assignment made without his consent. It is, I think, equally clear that he must be able to rely on the unlawfulness, if it exists, of the original sub-letting. One, therefore, has to expand the words after sub-tenant so as to read "to whom the premises, or any part thereof have been lawfully assigned by or under a sub-tenant to whom they have been lawfully sub-let".

7

I will now turn to the meaning of "lawful". In Norman and Simpson 1946, 1 King's Bench, p. 158, the Court took the view that premises were unlawfully sub-let if the head-lessor had a subsisting right of re-entering. That formula was considered in Maley and Fearn 62 Times Law Report, p. 692. In that case a tenant had sub-let in breach of a covenant which required that there should be no sub-letting except with the consent of the Landlord. It was held that the part sub-let had not been lawfully sub-let, but the Court doubted whether, if the sub-letting was contrary to the terms of the covenant it would be necessary to show that it gave rise to a right of re-entry. Lord Justice Morton, as he then was, was a party to both decisions and in the latter decision he expressed the opinion that a right of re-entry was not a necessary condition of unlawfulness. I agree with this.

8

It is said here in the first place that as the head landlord was not a party to the sub-Lease he cannot rely on the fact that his consent was neither sought nor obtained. It is said in the second place that the first defendant had a right to release Wroxall Estates from the provision which required the head-Landlord's consent and that she did so.

9

I think the first question to be considered is whether there was any implied obligation arising out of the licence. It was suggested in the pleadings that the firstdefendant impliedly undertook to impose the term upon and, if necessary, enforce the term against the under-lessee and her successors in title. I think this is putting the obligation too widely. It has been said countless times that terms cannot be implied unless it is necessary to give efficacy to the agreement. It is suggested here, on behalf of the defendants, that miss Strutt, even if she knew that the head-Landlord world object if approached, could release her sub-lessee from the term requiring the head-Landlord's consent. If this were right the agreement which the licence document evidences would it to me have no efficacy at all. The position would be precisely the same as if the first defendant's consent only was required. I think, therefore, under this Contract the first defendant impliedly undertook not to release or waive her right to require the superior landlord's consent.

10

Though I do not myself think it would have effected the result I will deal here with the suggestion that the first defendant through her Solicitors waived or purported to waive the position with regard to the superior landlord's consent. The Solicitors concerned did not give evidence so the matter turns on inferences from letters. On the 30th...

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