M. & J. S. Properties Ltd v White
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE WILLMER |
| Judgment Date | 18 March 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0318-1 |
| Court | Court of Appeal |
| Date | 18 March 1959 |
[1959] EWCA Civ J0318-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Sellers and
Lord Justice Willmer
MR S.W. WAGNUS (instructed by Messrs A.A. Seller & Co.) appeared as Counsel on behalf of the Appellants (Plaintiffs).
MR E. GRAYSON (instructed by Messrs Scott, Winter & Co.) appeared as Counsel on behalf of the Respondent (Defendant).
This is an appeal from an Order of His Honour Judge Wright, given at the Willesden County Court on the 11th November, 1958, in an action by a Property Company against a tenant. The Property Company, who were the Plaintiffs, were seeking possession of the first floor rooms at No. 308 Chapter Road, N.W.2., in the County of Middlesex, which were let to the Defendant by the Plaintiff Company's predecessors in title on the 13th July, 1957, on a weekly verbal tenancy at an inclusive rent of 25/- a week. The Defendant's tenancy was duly determined by a notice to quit served on or about the 23rd January, 1956, which expired on the 22nd February, 1958.
The premises are affected by the Rent Act of 1957, which came into operation on the 6th July, 1957. The tenancy with which we are concerned Came into existence after that date.
The Plaintiffs rely upon section 11(2) of the Rent Act of 1957, which provides that the Rent Act "shall not apply to a tenancy created by a lease or agreement coming into operation at or after the commencement of this Act, and the tenant shall not by virtue of those Acts be entitled to retain possession as a statutory tenant on the coming to an end of such a tenancy".
The facts are that the Defendant had previously occupied under a controlled tenancy the ground floor of No. 308 Chapter Road, and in August, 1957, she moved to the upper floor of the same premises. That is a new tenancy, according to the Plaintiffs, which was created after the commencement of the Act and which is not controlled. The Defendant relies on the proviso to sub-section (2), which is as follows: "Provided that this sub-section shall not apply where the person to whom the tenancy is granted was immediately before the granting the tenant under a controlled tenancy and the premises comprised in one of the tenancies are the same as, or consist of or include part of, the premises comprised in the other".
The only way in which it is said that these premises come within the proviso is this. There is a garden attached to this building, and the evidence shows that each of the tenants of the flats, that is to say, the ground floor and the upper floor, were entitled to the use of the garden. In practice, one tenant used one half and one tenant used the other half, and the strip of grass in the middle of the two halves was used in common. The tenant of the ground floor flat had the use of a water closet in the garden; the tenant of the upper floor flat had a water closet in his own part of the house. The question which arises for decision is whether, on the true construction of this Act, the word "premises" is apt to include this right to use the garden.
It is to be observed that the right to use the garden is not part of the tenant's holding in the ordinary sense of the word. It is not even an exclusive right to the garden. It is a right to use the garden in common with the tenant of the other part of the building.
In interpreting the word "premises", I think one has to look at this Act and the setting in which it appears. This Act is called the Rent Act of 1957? and it is part of a series of Acts which have been passed to protect tenants and their tenancies. This is a de-controlling Act, and it gives a measure of relief to landlords. It is easy, I think, to see the mischief against which the proviso was intended to provide. Those familiar with the working of those Acts know that a landlord has, in the past, been able to change the identity of the subject-matter of a letting so as to obtain a new standard rent — and in most cases a higher standard rent — for premises which are very little different from the old controlled premises, and the mischief aimed at by this proviso is doubt that of a landlord who might persuade a tenant to enter into an agreement for tenancy of substantially the same premises as the tenant had occupied before, or perhaps of slightly different premises (smaller in that some part had been taken away, or larger in that some part had been added). It seems to me quite plain that it is on the face of it directed to premises which are capable of physical occupation, and is not directed to an incorporeal right or easement which may be added to the tenancy.
I think that, in construing the word, one can have in mind the history of the word "premises" which was referred to by Lord Goddard, lord Chief Justice, in Gardiner v. Sevenoaks Rural District Council, 1950, 2 All England Reports, at page 85, where he pointed out that the word "premises" had originally been no more than a reference to what had gone before, but that, in the language of conveyances who were dealing with parcels of property, the word "premises" came to mean "land or what stands upon land". That, in the language of conveyances, is what is usually meant by "premises", and is, I think, illustrated by a precedent in Key and Elphinatone, 5th edition, at page 998, where a garden — and a garden is what we are considering here — was referred to separately from "the premises hereby demised". The same point was made by the House...
To continue reading
Request your trial
-
Graham v Lane Investments Ltd
...Shorter Dictionary. These words were considered in the cases of Newcastle City Council v. Royal N.H. [1959] 1 All E.R. 734 and M & JS. Properties Ltd. v. White [1959] 2 All E.R. 81. He submitted that the appellant occupied no land as an adjunct of his tenancy but was a mere licensee of the......
-
State (Davidson), The v Farrell
...K. B. 474. (4) [1910] 2 I. R. 695. (1) [1945] 1 K. B. 144. (2) [1945] 1 K. B. 474. (3) [1948] 2 K. B. 385. (4) [1950] A. C. 401. (5) [1959] 2 All E. R. 81. (6) [1908] 2 I. R. (7) [1924] 2 I. R. 55, at p. 57. (8) [1949] I. R. 275. (9) (1853), 9 Ex. 111, at p. 140. (10) [1908] 2 I. R. 1. (11)......