Jessamine Investment Company v Schwartz
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,SIR JOHN PENNYCUICK,LORD JUSTICE STEPHENSON |
| Judgment Date | 13 May 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0513-3 |
| Date | 13 May 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0513-3
In The Supreme Court of Judicature
Court of Appeal
(Revised)
(Civil Division)
(From: His Honor Judge Willis Shore ditch County Court)
Lord Justice Megaw
Lord Justice Stephenson and
Sir John Pennycuick
Mr LEONARD BROMLEY, Q. C. and Mr. ROBIN CAMPBELL (instructed by Messrs. Gale & Phelps) appeared on behalf of the Appellants (Plaintiffs).
Mr. RONALD BERNSTEIN, Q. C. and Mr. ROMIE TAGER (instructed by Messrs. Rose & Barn) appeared on behalf of the Respondent (Defendant).
I shall ask Sir John Pennycuick to deliver the first judgment.
This is an appeal from an order made by Judge Willis at Shore ditch County Court on the 23rd June, 1975. The appellant is the plaintiff in the action, Jessamine Investment Company, to which I will refer as "the freeholder". The respondent is the defend ant in the action, Mrs. Miriam Schwartz, to whom I will refer as "Mrs., Schwartz". The judge refused a claim by the freeholder for recovery of possession of a dwelling-house known as 29 Evering Road, London, on the ground that Mrs. Schwartz had a statutory tenancy of that house under the Rent Act, 1968. Summarily, the question to-day is whether Mrs. Schwartz, who admittedly did have a statutory tenancy as against a mesne landlord, lost her statutory tenancy as against the freeholder when she acquired a possessor title against the mesne landlord.
The facts are not in dispute. By a lease dated the 18th November, 1875, the freeholder's predecessor in title demised 29 and 31 Evering Road to one Slater for a term of 99 years from the 25th December, 1874, at a rent of £12 per annum. The leasehold interest in No. 29 and No. 31 respectively was severed in 1924, and by an assignment dated the 22nd September, 1924, the leasehold interest in No. 29 was assigned to a Mrs. David. It appears that the freehold interest was also severed at some time. Nothing turns on this matter of severance.
At some date, a weekly tenancy of No. 29 was granted by Mrs. David to a Mr. Levy and his wife, who is now Mrs. Schwartz. That weekly tenancy was at a rent of 35s. Od. a week. The rent was increased to £2 a week at some dates apparently shortly before or after 1939. It is common ground that thereupon the contractual tenancy ceased and was superseded by a statutory tenancy. During the War Mrs. Davidwent, to live in Cheltenham. No demand for rent was made after a date placed by the judge as at latest 1945. It looks as if the date was a year or two earlier, but nothing turns on the precise date.
Mr. and Mrs. Levy did not know Mrs. David's address and had no means of paying the rent - indeed they were worried at their inability to do so. There is no suggestion that they withheld rent for any other reason. Mr. Levy died in 1948, leaving his widow surviving him. She is now Mrs. Schwartz and has lived at No. 29 ever since. She is, or was until the events which I shall mention, the sole statutory tenant of No. 29.
The period of 12 years from 1945 expired in 1957. In the summer of 1973 Mrs. Schwartz, through her solicitors, applied to be registered as proprietor of No. 29 with a possessor title. They had no knowledge of the existence of the freehold interest. The Chief Registrar communicated with the solicitors for a mortgagee of the leasehold interest, who in turn communicated with the freeholder. In the event, no registration in fact took place; and the head lease expired by efflux ion of time on the 25th December, 1973. There followed a protracted correspondence between the solicitors concerned, the landlord claiming possession of No. 29. Particulars of claim were delivered on the 3rd December, 1974, and a defense was delivered on the 14th January, 1975. The contentions formulated in the pleadings are not quite in the terms now relied upon by the respective parties, and it would not be useful to read the pleadings.
The judge heard the case with witnesses. However, no relevant conflict of evidence arose, and I need not refer to the evidence which they gave. The judge gave a long and very careful judgment in which he decided the case in favor of Mrs. Schwartz, basing his decision on section 75 of the Land Registration Act, 1925. The judge also referred to an alternative contention based on the Landlord and Tenant Act, 1954, and indicated that if he had not decided the case under section75 he would have decided it in favor of Mrs. Schwartz on this alternative ground. That alternative contention, however, was abandoned before us by Mr. Bernstein, who appeared for Mrs. Schwartz, and I need not pursue it. Again, the grounds of appeal and a notice of additional points are formulated in rather different terms from those now relied upon, and it would not be useful to read them. It is not in dispute that we. should Endeavour to decide this case upon the true grounds; and no pleading point was relied upon.
The real issues, as the appeal developed, were: (l) whether Mrs. Schwartz acquired a possessor title at all, and (2) whether, if she did, by the acquisition of that possessor title she lost the protection of the Rent Act against the freeholder. I will deal with those two issues in that order.
(1). I will first read the relevant provisions of the Limitation Act, 1939. Section 4 (3): "No action shall be brought by any other person" that is, any person other than the Crown or a spiritual corporation - "to recover any land after the expiration of twelve years from the date on which the right of action accrued to him."
Section 9 (2); "A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Act, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination: Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent".
Section 10 (1): "No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favor the period of limitation can run (hereinafter in thissection referred to as "adverse possession') and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not he deemed to accrue unless and until adverse possession is taken of the land".
Section 16: "Subject to the provisions of section 7 of this Act" (which are not material) "and of section 75 of the Land Registration Act, 1925, at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) or an action to enforce an advisor, the title of that person to the land, or advisor shall be extinguished".
I propose to consider the present question in the first place without reference to the fact that No. 29, being in London, is registered land and that accordingly section 75 of the Land Registration Act, 1925, is applicable. I will not read that section until the end of this judgment.
It seems to me that section 9 (2) of the Act squarely covers the present case, and that Mrs. Schwartz did indeed acquire a possessor title against the manse landlord. The sub-tenancy, being a weekly tenancy, was for "a year or other period". Accordingly, the sub tenancy must be deemed to have been determined at the end of the first week, and accordingly the manse landlord's right of action must be deemed to have accrued at that date subject to the proviso postponing the deemed accrue of the right of action until the last receipt of rent. Nothing in section 10, having regard to the definition of "adverse possession", displace that result. Taking the last receipt of rent to have been in 1945, it follows that the manse landlord's right of action accrued in 1945 and that the 12-year period expired in 1957.
Mr. Bernstein, for Mrs. Schwartz, in furtherance of his client's interest in this case (though contrary to what might be the normalinterest of a tenant), contended that a statutory tenant cannot acquire a possessory title under the Limitation Act. I do not see any valid foundation for this contention upon the construction of sections 9 and 10, and it seems to me to be quite irreconcilable not only with the terms of section 9 but with the reasoning of the Court of Appeal in the" case of Moses v. Lovegrove (1952) 2 Queen's Bench 533. Lord Evershed, at page 542, said this: "Possession, as I have said, for the purposes of this Limitation Act, 1939, is none the less adverse, because Parliament has thought fit to put certain serious qualifications upon the right of a person whose land is in adverse possession to enter and to recover the possession of that property". Those "serious qualifications" are those contained in the Rent Act then in force.
In that case the tenancy had existed before 1939, and the premises were only brought within the provisions of the then Rent Restrictions Act in 1939. But it is clear in particular from the judgment of Lord Evershed that he did not regard that circumstance as making any difference. He said this at page 541: "We are not concerned with what the situation would be if at the time the statutory period of limitation was alleged to begin to run, the premises were Under the control of the Act, so that at that date the only right the landlord had would be the right to invoke the jurisdiction of the County Court. If such were the circumstances, then the question no doubt would arise whether there was a right of entry, a right of action within the meaning of section 4 and section 9 by virtue of...
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