Rakhit v Carty
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 06 February 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0206-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1990 |
| Docket Number | 90/0088 |
[1990] EWCA Civ J0206-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE ROWNTREE)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Russell
Sir Roualeyn Cumming-bruce
90/0088
MISS ERICA FOGGIN (instructed by Messrs. Allen, Kandler & Co.) appeared for the Appellant (Defendant).
MR. NICHOLAS YELL (instructed by Messrs. Steven Fisher & Co.) appeared for the Respondent (Plaintiff).
24 Burnham Court, Brent Street, London, N.W.4, is a third floor flat. On 30th September 1986 Mr. Sunil Rakhit granted a lease of the flat to four tenants for a period of one year at a rent of £433.33 per calendar month. At the time of the letting the flat had been substantially furnished by Mr. Rakhit. On 10th December 1986 the appellant, Mrs Carty, joined the tenants in occupation of the flat and on 1st October 1987 she entered into a tenancy agreement with Mr. Rakhit for a term of 364 days from 1st October 1987 at that rent of £450 per month. Unknown to any of the parties to these tenancy agreements a rent officer had, much earlier, determined a fair rent for the flat effective from 19th November 1973 of £550 per annum, that rent being registered in the rent register for the London borough of Barnet on 12th March 1974. At that date the flat was unfurnished and was so recorded in the rent register. Mr. Rakhit had no interest in the premises at that time.
Mrs Carty's tenancy came to an end by effluxion of time, but she remained in occupation as a statutory tenant entitled to the protection of the Rent Act 1977. However, within a matter of days, on 9th October 1988, Mr. Rakhit commenced proceedings in the Willesden County Court, seeking possession of the flat upon, inter alia, the ground that he reasonably required possession of the demised premises as a residence for himself under Case 9 of Schedule 15 of the Rent Act 1977. The claim was resisted by the tenant, Mrs Carty, on the grounds that it was not reasonable to make the order and that, pursuant to Part III of Schedule 15, greater hardship would be caused to the tenant by granting the order than would be caused to the landlord by refusing to grant it.
On 12th June 1989 at the Willesden County Court His Honour Judge Rowntree made an order for possession of the flat in favour of Mr. Rakhit, and Mrs Carty appeals against that order.
In a careful judgment the judge reviewed, as he was required to do by Part III of Schedule 15, all the circumstances of the case. On the evidence he was satisfied that Mr. Rakhit genuinely desired to live in the flat. Mr. Rakhit had nowhere else to live, the accommodation in which he had been living being no longer available to him. The judge was satisfied that Mr. Rakhit could not afford to purchase another property. As for the tenant, the judge said:
"Although of modest income she was able to spend some 6 months in Thailand last year and one month this year. Although hardship is present for whichever side must live elsewhere in the circumstances that I have touched upon, on balance I conclude that this is not a case where greater hardship would be caused to the tenant by granting an order for possession. Indeed…greater hardship would undoubtedly be in my view upon the Plaintiff. In those circumstances I am prepared therefore to make an order for possession and I have in mind an order for possession in six weeks".
Miss Foggin, whose skilful presentation of this appeal upon all the issues that are to follow in this judgment was of great assistance to the court, submits that the learned judge should not have made the order because, when dealing with the plaintiffs financial position, he expressed grave reservations about the plaintiff's veracity. Nevertheless, the judge did find that Mr. Rakhit could not afford alternative accommodation and, in my judgment, that factual finding is unassailable. Alternatively, counsel directed our attention to the provisions of section 98 of the Rent Act 1977 which prohibits an order for possession of a dwelling house subject to a statutory tenancy "unless the court considers it reasonable to make such an order". The judge did not specifically indicate in his judgment that he had applied his mind to the issue of reasonableness under section 98, but in my view it is inherent in the judge's findings that it was reasonable to make the order. Accordingly, I see no basis for interfering with the judge's conclusion upon this part of the case and would dismiss the appeal against the order for possession.
I turn to those submissions of counsel that occupied the court for most of this hearing. The plaintiff claimed arrears of rent and the judge awarded him £2,710.58 together with mesne profits of £380 per month until possession. The arrears were based upon the rent payable under the tenancy agreement of 1st October 1987 up to 8th December 1988 when, upon an application lodged by Mrs Carty, the rent officer had determined and registered a fair rent of £380 per month. The entry in the register on 9th December 1988 recorded the flat as furnished.
The submission made to the judge and repeated before this court can be shortly stated. Miss Foggin contends that the rent registration on 12th March 1974 limited the rent payable by the tenant under the agreement dated 1st October 1987 and that, far from there being arrears of rental, the tenant had overpaid £3,069.82 from 1st October 1987 to the date of the hearing. There was a counterclaim in respect of overpaid rent.
The judge rejected this submission, regarding himself as bound by Kent v. Millmead Properties Limited [1982] P.C.R. 353 and Cheniston Investments Limited v. Waddock [1988] 46 E.G. 136. The landlord's claim for arrears and mesne profits was therefore upheld, and the tenant's counterclaim dismissed.
It is now convenient to look at the relevant statutory provisions which bear on this appeal. The starting point is section 44(1) of the Rent Act 1977 which provides:
"Where a rent for a dwelling-house is registered under Part IV of this Act, the rent recoverable for any contractual period of a regulated tenancy of the dwelling-house shall be limited to the rent so registered."
Part 4 of the Act contains detailed provisions relating to the registration of rents under regulated tenancies. Section 67 deals with the machinery for making an application for the registration of a rent. Section 70 is concerned with the circumstances to which regard must be paid by the rent officer in fixing a fair rent under a regulated tenancy. Both the application for registration and the assessment must deal with details of any furniture provided for use under the tenancy.
Section 66(1) provides:
"(1) The rent officer for any area shall prepare and keep up to date a register for the purposes of this Part of this Act and shall make the register available for inspection in such place or places and in such manner as may be provided by the scheme made for the area under section 63 of this Act.
(2) The register shall contain, in addition to the rent payable under a regulated tenancy of a dwelling-house—
(a) the prescribed particulars with regard to the tenancy; and
(b) a specification of the dwelling-house."
Section 72 is concerned with the effect of a registration of rent. Subsection (1) reads:
"…the registration of any rent for a dwelling-house takes effect
(a) if the rent is determined by the Rent Officer from the date when it is registered".
Subsection (5) provides:
"As from the date on which the registration of the rent takes effect, any previous registration of a rent for the dwelling-house ceases to have effect."
Section 73 makes provision for the cancellation of the registration of a fair rent by the landlord and tenant jointly.
However, in the context of this appeal, section 67(3) is of greater importance. It provides:
"Subject to subsection 4 below, where a rent for a dwelling-house has been registered under this Part of this Act, no application by the tenant alone or by the landlord alone for the registration of a different rent for that dwelling-house shall be entertained before the expiry of 3 years from the relevant date (as defined in subsection (5) below) except on the ground that, since that date, there has been such a change in—
(a) the condition of the dwelling-house (including the making of any improvement therein),
(b) the terms of the tenancy,
(c) the quantity, quality or condition of any furniture provided for use under the tenancy (deterioration by fair wear and tear excluded), or
(d) any other circumstances taken into consideration when the rent was registered or confirmed
as to make the registered rent no longer a fair rent."
Subsection (4) enables a landlord alone to make an application within the last three...
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