Legge v Matthews
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARCE |
| Judgment Date | 12 February 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0212-3 |
| Court | Court of Appeal |
| Date | 12 February 1960 |
[1960] EWCA Civ J0212-3
In The Supreme Court of Judicature
Court of Appeal
Revised
Lord Goddard,
Lord Justice Pearce and
Lord Justice Upjohn.
MR. CHRISTOPHER PRIDAY (instructed by Pennington & Son) appeared as Counsel for the Appellant.
MR. R. R. MEGARRY, Q. C. and MR. PETER MASON (instructed by Compton & Co.) appeared as Counsel for the Respondent.
This is a landlords' appeal from the refusal of the learned County Judge to make an order against the second Defendant for possession of the ground floor of a house in Hornsey Road, Holloway.
The first Defendant became tenant of the whole house in 1953 and in that year lawfully sublet the ground floor to the second Defendant. In April 1957 the first Defendant became a statutory tenant owing to the service of a notice of increase. On the 6th July 1957 whole house was decontrolled by Section 11 of the Rent Act 1957 since the rateable value is over £40; but the rateable value of the ground floor is only £16. The Judge made an order for possession against the first Defendant suspended under the terms of the 1957 Act and the question before us is whether the Judge was right in holding that the second Defendant was protected by other Acts as sub-tenant, and in refusing to make an order against her for possession.
The effect of Section 11 of the Rent Act 1957 was to decontrol the whole house but to allow the tenant to continue in possession for a certain transitional period. The house therefore became decontrolled on the 6th July 1957 (see Section 27 (2)) and thereafter the tenant was only protected in a transitional status in accordance with the Fourth Schedule.
Section 11 (1) of the Rent Act 1957 reads: "The Rent Acts shall not apply to any dwelling house the rateable value of which on the seventh day of November, 1956 exceeded, in the Metropolitan Police District or the City of London forty pounds, elsewhere in England or Wales thirty pounds, and in Scotland forty pounds".
Section 11 (7) reads:- "The transitional provisions contained in the Fourth Schedule to this Act shall have effect in relation to dwelling houses which cease to be subject to control by virtue of sub-section ( 1) or (3) of this section".
Clauses 1 and 2(1) of the Fourth Schedule to the Act are as follows:- "1. In this Schedule 'the time of decontrol' means the time at which the Rent Acts cease to apply to a dwelling house by virtue of sub-section ( 1) or (3) of section eleven of this Act".
"2(1) Where immediately before the time of decontrol the dwelling house was the subject of a statutory tenancy or of a controlled tenancy which would or might come to an end within fifteen months of that time by effluxion of time or notice to quit, the tenant under that tenancy shall be entitled until the date hereinafter mentioned, and subject to the following provisions of this Schedule, to retain possession of the dwelling house in the like circumstances, to the like extent and subject to the like provisions (including in particular provisions as to recovery of possession by the landlord) as if the Rent Acts had not ceased to apply to the dwelling house".
The landlords served on the first Defendant the appropriate notice expiring on 6th October 1958 and as from that date they became entitled to an order for possession against her.
At common law the subtenant would cease to have any right to possession when the tenant's rights determined. Section 15(3) of the Increase of Rent and Mortgage Interest Restriction Act 1920 provided certain protection for the sub-tenant. But this protection was inapplicable where the head tenancy was not protected by the Acts. ( Cow v. Casey, 1949, 1 King's Bench, page 474). Accordingly Section 41 was inserted into the Housing Repairs and Rents Act of 1954. Its effect was nationally to carve out of the unprotected larger tenancy the smaller part that was sub-let, so that the sub-tenancies might be protected.
It is conceded that these are the only sections that could avail the sub-tenant here and the question is whether she is protected by either of those Sections or by their joint effect.
Section 15(3) of the 1920 Rent Act is as follows:- "Where the interest of a tenant of a dwelling house to which this Act applies is determined, either as the result of an order or judgment for any possession or ejectment, or for any other reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let 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 tenant if the tenancy had continued".
Section 41 of the Housing Act reads:- "Where a dwelling house to which the Act of 1920 applies (hereinafter referred to as 'the sub-let part') forms part of premises, not being such a dwelling house, which have been let as a whole on a superior letting, then from the coming to an end of the superior letting the operation of the Rent Acts in relation to the sub-let part shall be the same as if in lieu of the superior letting there had been separate lettings of the sub-let part and the remainder of the premises, for the like purposes as under the superior letting, and at rents equal to the just proportion of the rent under the superior letting".
Each side relied on an argument as to the general intention of the legislature. For the landlords it was said that since the Rent Act 1957 was a decontrolling Act and said no word about the protection of sub-tenants, it appeared that sub-tenants in houses decontrolled by the Act were not intended to have any protection. For the sub-tenant it was argued (and as it seems to us with greater force) that it was hard to believe that the legislature while specifically protecting sub-tenants where the head tenancy remained controlled (Section 41 of the Housing Act, 1954) should treat as a special unprotected class those sub-tenants whose head tenancy happened to be in the class decontrolled by the 1957 Act, namely...
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