Manfield & Sons Ltd v Botchin

April 15. COOKE J. read the following judgment. The landlords are, and have been since 1963 if not earlier, the owners in fee simple of three shops, nos. 42, 44 and 46 Commercial Road, Bournemouth. In 1963, no. 42 was occupied by the landlords themselves and was a shoe shop; no. 44 was a fancy goods shop; no. 46 had at one time been occupied by a dairy company, but by the autumn of 1964 was, and had been for some time, unoccupied. Since 1963 the landlords had been anxious to obtain planning permission to redevelop the site of these three shops in accordance with a scheme satisfactory to themselves. They had made an application for planning permission to carry out a scheme of redevelopment in March, 1963; that application was refused. In September, 1963, they applied for planning permission to carry out a different scheme; that application was granted subject to a condition which was not acceptable to them. In October, 1963, the landlords applied for planning permission to carry out yet another scheme. That application had been refused in December, 1963, and from that refusal the landlords in due course appealed to the Minister. The Minister's decision on the appeal was not given until January, 1965; it was to allow the appeal but subject to conditions as to the manner in which the proposed development should be carried out. In the meantime the landlords were receiving no benefit from their ownership of the shop at no. 46, and were not unnaturally anxious to find a tenant for the shop until such time as they had received planning permission for a scheme of development which they regarded as satisfactory. Equally, of course, the landlords were anxious if possible to be in a position to resume possession of the shop as soon as they might require it in order to proceed with a development scheme.

In the autumn of 1964, the tenant desired to open a gift shop and a shop for the sale of antiques, and wished to obtain a tenancy of no. 46 for that purpose. On November 23, 1964, the tenant wrote to the landlords' agents, Messrs. Healey and Baker, offering to accept a weekly tenancy of no. 46 and enclosing a cheque for £120 as an advance payment for four weeks' rent at the rate of £30 a week. On December 11, 1964, Messrs. Healey and Baker wrote to the tenant returning his cheque and saying:

“I now have pleasure in returning herewith your cheque for £120, as your solicitors will no doubt be advised by my clients' solicitors over the question of payment of rent. I understand that the respective lawyers are in touch with each other and I do trust that this matter will be shortly concluded should it not have already been.”

It was indeed the case that the landlords' solicitors and the tenant's solicitors were in touch with each other, and as a result of their consultations a tenancy agreement was prepared. This agreement was, in due course executed by the landlords and the tenant. The agreement was dated December 21, 1964, and by it the landlords purported to grant to the tenant the tenancy at will of no. 46 Commercial Road, commencing on December 5, 1964.

It is necessary to refer to some of the provisions of the agreement in detail. The recitals read as follows:

“1. The company” (that is, the landlords) “is the freeholder of the premises known as 42, 44 and 46 Commercial Road in the County Borough of Bournemouth, and intends to demolish or reconstruct the same as soon as possible but is unable to proceed with this work at present.

“2. [The tenant] has requested the company to grant him a tenancy at will of 46 Commercial Road aforesaid (hereinafter called ‘the said premises’) until such time as the company shall require possession of the same for the purposes of carrying out the work hereinbefore mentioned.”

Clause 1 of the agreement read as follows:

“The company shall let and [the tenant] shall take the said premises on a tenancy at will commencing from December 5, 1964, at a rental to be calculated at the rate of £1,560 per annum and paid on demand at such time or times as the company may think fit Provided always that if the company should demand the aforesaid rent at fixed periods such demand or acceptance of rent shall not be deemed to create any periodic tenancy.”

Clause 2 set out a number of covenants into which the tenant entered. By paragraph (b) of the clause the tenant agreed:

“To keep the said premises in as good a state of decorative repair as the same now are in and in such state to yield up the said premises on termination of the tenancy at will with all additions and improvements thereto except the occupier's trade fixtures and fittings and to make good any damage caused by the occupier to the said premises.”

By clause 2 (d) the tenant agreed as follows:

“That the said tenancy at will should be personal to [the tenant] who shall not part with or share occupation of the premises or any part thereof to or with any other person.”

By clause 2 (1) the tenant agreed as follows:

“Not to use or permit the premises or any part thereof to be used for any trade or business of a similar nature to that carried on by the company at any adjoining or neighbouring premises or as a dwelling or sleeping apartment but to use the said premises only for the purposes of a high class gift shop and for the sale of antiques.”

It is noteworthy that the agreement contained no provision for re-entry by the landlords on breach of any of the tenant's covenants.

Clause 3 of the agreement read as follows:

“[The tenant] hereby acknowledges that the aforesaid tenancy at will has been granted at his request and on the express understanding that his occupation shall not be such as is protected by Part...