Lower v Porter

JurisdictionEngland & Wales
JudgeLORD JUSTICE DENNING,LORD JUSTICE HODSON,LORD JUSTICE MORRIS
Judgment Date09 December 1955
Judgment citation (vLex)[1955] EWCA Civ J1209-1
Date09 December 1955
CourtCourt of Appeal

[1955] EWCA Civ J1209-1

In The Supreme Court of Judicature

Court of Appeal

Before

Lord Justice Denning

Lord Justice Hodson and

Lord Justice Morris

Celia Lower
and
Walter Horace Porter

MR JOHH SOUTHAM (instructed by Messrs Jaques & Co, agents for Mr John W. Richardson, Christchurch, Nants.) appeared on behalf of the Appellant (Defendant).

MISS JUNE VERRALL. (instructed by Messrs Vivash Robinson & Co., agents for Mr Harold G. Walker, Bournemouth) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE DENNING
1

This case has been very well argued on both sides. By a lease of the 28th November, 1950, a landlord let to Mr Porter a house, 110, Southbourne Road, Bournenouth, at a rent of £200 a year for seven years with an option of renewal. The house was one to wich the Rent Restrictions Acts applied. During the next two or three years the tenant, Mr Porter, with consent of the landlord, made alterations at a cost of £280, turning this house into two self-contained flats with separateentrances. Then in the year 1954 Mr Porter entered into a contract to sell the place to Mr Lower. Under the contract it was said that he was selling for £600 the house and the goodwill of the business of a guest house carried on there. No part of the purchase money, it was said, was to be apportioned to the lease-hold premises; it was all to be for the goodwill of the guest house. But in fact there was no guest house carried on there at all and no goodwill to be said at all. It was simply a device to get a premium.

2

The assignment was made, and Mrs Lower went into occupation. Then she claimed a return of the £600 because, she said, it was an unlawful premium. It was prohibited by section 2 of the 1949 Act. The Judge held that it was an unlawful premium, but he allowed Mr Porter to have credit for the £280 he had spent on the premises, a credit which is provided for by the statute in sub-section 4(b): and be ordered the return of £320. Now there is an appeal to this Court.

3

Mr Southam, for Mr Porter, has argued that the Act does not apply because the dwelling-house was converted into two dwelling-houses. He refers to section 2, subsection 3, of the Act, which says: "This section applies to any tenancy of a dwelling-house, being a tenancy to which the principal Acts apply, such that when the dwelling-house is let under the tenancy it is a dwelling-houses to which the principal Acts apply". Mr Southam says that the relevant time for applying the second half of that subsection is the time of the assignment; and what at the time of the assignment here the dwelling-house was not "a dwelling-house" to which the principal Acts applied but it was two dwelling-houses. He says that the Act is not apt to cover such a situation and that, having penal consequences, it should be constructed in favour of Mr Porter and not against him.

4

I am not able to accept that construction. It seems to me reasonably plain that the second half of that subsection is inserted simply so as to make sure that where the house has notbeen previously let there is to be no premises, not even on the first letting. Since the Act there has been a case of ( Minns v. Moore 1950, 1 King's Bench, page 241) which shows that in any event that result would have been achieved without the added words; but I think that is why Parliament added the words. It seems to me plain that the section covers a case like the present, because even though the house has been converted into the flats, if you ask yourself: Is it a dwelling-house to which the principal Acts apply?, the answer is, certainly, it is. Indeed Miss Verrall drew our attention to the cases of ( Langford Property Company v. Goldrich 1949, 1 King's Bench, page 511) and ( Whitty v. Scott-Russell 1950, 2 king's Bench, page 32) where, despite the fact that two physically separate premises were comprised within the...

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3 cases
  • Horford Investments Ltd v Lambert
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 October 1973
    ...separate dwelling". But I do not think that he had point in mind: he was referring to two separate lettings of two separate flats. 12 In Lower v. Porter in this court (1956) 1 Q. B. 325 the question was whether a premium on assignment of a tenancy was illegal. The letting was of a house no......
  • Commissioners of Inland Revenue v National Coal Board
    • United Kingdom
    • House of Lords
    • 29 May 1957
    ...the reference appears to have meant, in the event or in the case of property not being sold in the first instance. InLower v. Porter, [1956] 1 Q.B. 325, a phrase which came under consideration was "such that when the dwelling-house is let under the tenancy it is a dwelling-house to which th......
  • Commissioners of Inland Revenue v National Coal Board
    • United Kingdom
    • Chancery Division
    • 29 May 1957
    ...the reference appears to have meant, in the event or in the case of property not being sold in the first instance. InLower v. Porter, [1956] 1 Q.B. 325, a phrase which came under consideration was "such that when the dwelling-house is let under the tenancy it is a dwelling-house to which th......

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