Fredco Estates Ltd v Bryant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE UPJOHN |
| Judgment Date | 09 November 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1109-2 |
| Court | Court of Appeal |
| Date | 09 November 1960 |
[1960] EWCA Civ J1109-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Upjohn
MR. C. ROSS-MUNRO appeared on behalf of the Appellants (Defendants) instructed by Messrs. Gregsons.
MR. A. H. TIBBER appeared on behalf of the Respondents. (Plaintiffs) instructed by Messrs. Friedman, Fredman & Co.
: This is an appeal from a decision of His Honour Judge Raid given at the Kingston-upon-Thames County Court on the 6th May 1960, when he ordered the -Defendants to give up possession of Ho.24, Laburnum Road, London, S.W.19, and also dismissed a counter-claim by the Defendants against the Plaintiffs for rent which the Defendants alleged they had overpaid to the Plaintiffs in respect of that house.
The circumstances which are relevant in this case are these: In 1922 a Mr. Gilbert was the contractual tenant of this houses tie had the whole house, and he paid for it a rent of 12/4d. per week. Mrs. Bryant, the Second Defendant, was his daughter, and Mr. and Mrs. Gilbert and the daughter lived together in the house. In 1935 the daughter married the First Defendant, Mr. Bryant, and the two Bryants continued to live in the house with her parents. Mr. Gilbert sub-let one room to his daughter and son-inlaw for the sum of 8/- per week. The evidence is somewhat scanty on this subject, but it appears from the evidence that Mr, and Mrs. Bryant had the exclusive use of that one room and in addition the right to use the scullery for the purpose of cooking jointly with Mr. and Mrs. Gilbert. It is not disputed that the sub-tenancy of this room which was let to Mr. Bryant was a lawful sub-tenancy.
On the 4th August 1935 Mr. Gilbert died, and his widow continued to live in the house together with Mr. and Mrs. Bryant, Mrs. Gilbert, being the widow of Mr. Gilbert, was then a statutory tenant by virtue of the provisions of Section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. By reason of the provisions of that section, she was entitled after her husband's death to continue to live in the house as a statutory tenant. After her husband's death Mrs. Gilbert, who was an Invalid and very largely confined to bed, allowed her daughter end eon-in-law to have the use of throe other rooms in the house in addition to the room which had already been sublet to Mr. Bryant, and she charged no extra rent for the use of those additional rooms, which was still 8/- per week. According to the evidence, the bulk of the cooking for the three people who were then Hiring in the house was then done by Mrs. Bryant, because Mrs. Gilbert was not well enough to do it. Mrs. Bryant did the cooking for her mother, but from time to time Mrs. Gilbert did use the scullery, as she was entitled to do, and the position appears to have been that both Mrs. Bryant and Mrs. Gilbert had a joint use of the scullery for cooking purposes.
On the 24th April 1939 Mrs. Gilbert died, and Mr. and Mrs. Bryant continued to live in the house. The rent bad been paid fortnightly, and a fortnight after the death of Mrs. Gilbert Mrs. Bryant offered to the rent collector the rent for that period and he accepted it, but at a later date he returned it, and no further rent was accepted by the landlords' agent in respect of the premises.
On the 7th October 1959, the landlords took out a summons in the County Court claiming possession of the premises and arrears of rent, and on the 12th January 1960, the Defendants put in their first defence, which alleged that there was a contractual tenancy in Mr. Gilbert and therefore they were entitled to remain. Mrs. Bryant took our Letters of Administration of the estate of her mother in January 1960, and of the estate of her father in February 1960, both her parents having died intestate. On the 3rd March 1960, an amended defence was filed setting out that in consequence of that administration the contractual tenancy in the premises was vested in Mrs Bryant, and counter-claiming for rent which she alleged had been paid in excess since 1945.
On the 3rd March 1960, the lefendants' Solicitors served upon the Plaintiffs' Solicitors a Notice to Admit Facts. She part of that Notice which is relevant is that it was a notice to admit the rateable values and the rates payable in respect of this house from 1914 to 1959, both inclusive. In that Notice to Admit Facts the rates payable and the rateable values were set out against each respective year. On the 22nd Heron 1960, the Plaintiffs' Solicitors replied to the Defendants' Solicitors admitting the facts set out in the Defendants' Solicitors' Notice.
It becomes necessary to consider the position as it was at the death of Mr. Gilbert, because that is the time which is important for the decision of this case. If Mr. Gilbert was a contractual tenant at the time of his death, then by Section 9 of the Administration of Estates Act, 1925, the contractual tenancy in the premises became vested in the President of the Probate Divorce and Admiralty Division; Mr. Gilbert's widow, by virtue of Section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, had a statutory tenancy of the house, and upon the authority of the case of Moodie v. Hosegood (1952 I Appeal cases at page 61) the contractual tenancy vested in the President remained in a state of suspense during the lifetime of the widow, she being a statutory tenant. On the death of Mrs. Gilbert, if Mr. Gilbert was a contractual tenant at the time of his death, Letters of Administration having been taken out by Mrs. Bryant, the contractual tenancy then vested in her, and she would in those circumstances be entitled to possession. Clearly, If that were the position, the landlords would have no right to sue for possession.
In this case, of course, the proceedings were started before the Letters of Administration were taken out by Mrs. Bryant, and presumably, if this was a contractual tenancy at the date of the death of Mr. Gilbert, such contractual tenancy was vested in the President. In those circumstances, it would seem that the Plaintiffs could not recover possession because they would have no right to sue for or gain possession.
On the other band, if the tenancy of Mr. Gilbert was not a contractual tenancy at the time of his death — that is to any. If that tenancy had been terminated before he died, and at the time of his death he was a statutory tenant only, then that statutory tenancy would be transmitted to his widow by virtue of Section 12 (1) (g) of the 1920 Act, but could not be further transmitted on her death. Then, subject to the question of the one room which was sub-let — with which I will deal later — the landlord would be entitled to possession of the premises.
The fundamental question in this appeal therefore is whether the contractual tenancy of Sir Gilbert was terminated before his death. The rents of the premises at all material times were collected by a firm of Chartered Surveyors called C.L. Tibbit & Co. They appear certainly to have collected the rents from a period well before the material date of 1945, and for some considerable time afterwards. Their name appeared on the rent bocks as Chartered Surveyors, and on at least one rent book prior to 1945 the name of the landlords appeared in addition to the name of the agents. The name of the agents appeared in the majority of the rent bocks, all of which were found amongst the papers of Mrs. Gilbert after her death.
From the 30th April 1945, an increased rent was paid by first Mr. Gilbert, and after his death by Mrs. Gilbert, in respect of these premises. I have said that the original rent was the sum of 12/4d. per week, but from the 30th April 1945 the rent was increased to 13/2d. per week, as appears from the rent books. There were further increases at later dates, but they arc not relevant to this discussion.
As I understand it, the landlords' contention before the learned County Court Judge was, first of all, that it must be assumed that because that rent had been increased, and the increased rent had been paid since 1945, due notice of increase had been given in accordance with the terms of the Rent Restrict ion Act, and that in conscience the contractual tenancy must have been terminated. That is the argument which was put forward on behalf of the landlords before the learned County Court Judge, but it transpired on discovery of the Defendants, documents that there was in existence a notice of increase of rent which purported to have been signed by Messrs. C.L. Tibbit & Co. which was dated the 16th April 1945. It was a notice that the rent of the premises would be increased as from the 30th April 1945 to 13/2d per week, and then were set out the particulars upon which that increase was based. At the hearing Mr. Tibber objected to that document being put in, but the learned Judge allowed it to go in. Then the question arose whether the notice was a valid one. If it was, the contractual tenancy was terminated before the death of Mr. Gilbert, and he could only transmit a statutory tenancy on his death. If it was, Mr. Gilbert was still a contractual tenant at the date of his death, and for the reasons I have stated that contractual tenancy would now be vested in Mrs Bryant. Therefore, it became necessary before the learned Judge- and it becomes necessary in this appeal, to consider whether the notice dated 16th April 1945 was a valid notice.
Mr. Ross-Munro, on behalf of the Defendants, tools three points of objection to this notice. The first point he took was that the figures in the notice on which the increase was based were not correctly stated, and that in those circumstances it could not be said that the notice was valid having regard to the provisions of ...
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