Epps v Rothnie

 

Epps v Rothnie

LANDLORD AND TENANT; Rent, Tenancies

COURT OF APPEAL

SCOTT, MACKINNON AND LAWRENCE LJJ

12 JULY 1945

Landlord and Tenant – Rent restriction – Recovery of possession – Plaintiff claiming as landlord – “Not being a landlord who has become landlord by

purchasing the dwelling-house after 6 December 1937” – Unoccupied house purchased by plaintiff after statutory date – Subsequent tenancy agreement –

“Landlord” – Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 (c 32), Sched I (h) – Increase of Rent and Mortgage Interest (Restrictions) Act,

1938 (c 26), Sched II.

T E purchased an unoccupied house after 6 December 1937. By an agreement in writing made on 4 April 1942, the house was let for one year to R. The

agreement was made on T E’s behalf by his brother, H W E whose name was given therein as landlord but who was acting merely as agent for T E. After the

agreement had expired on 3 April 1943, R remained on in the house and continued to pay the rent to T E through the latter’s agents. Later, T E required the

house for his own occupation and brought proceedings to recover possession under the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, s 3,

and Sched I(h). It was contended by R (i) that the proceedings could not be brought by T E because in the agreement of 3 April 1942, his brother, H W E,

was stated to be the landlord; (ii) by reason of the exception in Sched I(h) to the Act of 1933 (as amended by the Increase of Rent and Mortgage Interest

(Restrictions) Act, 1938, Sched II), T E was not entitled to possession as landlord because he was “a landlord who has become landlord by purchasing the

dwelling-house after 6 December 1937”:—

Held – (i) T E was entitled to bring the proceedings as landlord because he was not relying on the agreement of 4 April 1942, and the relationship of landlord

and tenant had been clearly established apart from that agreement. Moreover, even if T E had been compelled to rely on the written agreement, evidence

would have been admissible to prove that his brother was signing merely as his agent.

(ii) since the house was unoccupied when T E purchased it, the exception to Sched I(h) to the 1933 Act did not apply, because T E did not “become

landlord by purchasing the dwelling-house.” The object of the exception in para (h) was to protect a tenant in occupation of a house which was being sold; the

exception did not apply where an unoccupied house was purchased after the statutory date and subsequently let. T E was, therefore, entitled to possession

under Sched I(h) to the 1933 Act.

Notes

The court holds that a possession order may be made in favour of the landlord of Rent Act protected property, who requires it for his own occupation, although

he purchased subsequently to 6 December 1937, if at the time of such purchase the property was empty. The Act was intended to protect the sitting tenant,

and in the case of empty property the relationship of landlord and tenant only comes into existence at the time of the subsequent letting.

As to Possession Required by Landlord for His Own Occupation, see Halsbury, Hailsham Edn, Vol 20, p 332, para 396, and Supplement; and for Cases,

see Digest, Vol 31, p 580, No 7283–7291.

Cases referred to in judgments

Humble v Hunter (1848) 12 QB 310, 1 Digest 639, 2606, 17 LJQB 350, 11 LTOS 265.

Formby Brothers v Formby (1910), 102 LT 116, 1 Digest 638, 2595.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Drughorn (Fred) Ltd v Rederiaktiebolaget Transatlantic [1919] AC 203, 17 Digest 322, 1333, 88 LJKB 233, 120 LT 70.

Danziger v Thompson [1944] 2 All ER 151, [1944] KB 654, 113 LJKB 539, 170 LT 424.

Appeal

Appeal by the tenant from an order of His Honour Judge Hurst KC, made at the Bromley County Court on 5 June 1945, in proceedings by the respondent to

recover possession under the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, s 3, and Sched I(h). The facts are fully set out in the judgment

of Scott LJ.

B L O’Malley for the appellant.

P H M Oppenheimer for the respondent.

􀂭 146􀀉

12 July 1945. The following judgments were delivered.

SCOTT LJ. This is an appeal from an order of the judge of the Bromley County Courty by the tenant of a house the occupation of which was given to him by

an agreement for one year from 4 April 1942. On the expiration of the agreement the owner of the house desired to obtain possession of the house and

eventually took proceedings in the county court to obtain such possession. The county court judge held that he was entitled to possession under the Rent and

Mortgage Interest Restrictions (Amendment) Act, 1933, Sched I(h), and that greater hardship would result from refusing possession than from granting it. He

have a short and clear judgment with which I entirely agree. The only real point taken by the tenant on the appeal is that by reason of the exception in para (h)

of the Schedule the plaintiff is not entitled to possession.

Sched I [as amended by the Increase of Rent and Mortgage Interest (Restrictions) Act, 1938, Sched II] provides:

‘A court shall, for the purposes of sect. 3 of this Act, have power to make or give an order or judgment for the recovery of possession of any

dwelling-house to which the principal Acts apply or for the ejectment of a tenant therefrom without proof of suitable alternative accommodation (where

the court considers it reasonable so to do) if … (h) the dwelling-house is reasonably required by the landlord (not being a landlord who has become

landlord by purchasing the dwelling-house … after Dec. 6, 1937) for occupation as a residence … Provided that an order or judgment shall not be

made or given on any ground specified in para. (h) … if the court is satisfied that having regard to all the circumstances of the case … greater hardship

would be caused by granting the order or judgment than by refusing to grant it.’

It was argued for the defendant that the plaintiff was not a landlord within the meaning of the paragraph but was a landlord who was excepted from it by

reason of the words “not being a landlord who has become landlord by purchasing the dwelling-house … after 6 December 1937.” The county court judge

dealt with that contention very clearly. He said:

‘In point of fact the plaintiff purchased the property after that [the statutory] date and became the owner. But the property was then empty. In my

judgment, he did not become “landlord” by purchasing it, but by virtue of a subsequent act, namely, by his letting it for the first time to a tenant. A man

is only a landlord where there is also a tenant.’

Accordingly, the county court judge held, and in my view held rightly, that the plaintiff did not “become landlord by purchasing the dwelling-house.”

The judge took the view, with which I agree, that the object of the exception in Sched I(h) is to protect a sitting tenant from having his house bought over his

head, and it has no application to a case where an unoccupied house is purchased after the statutory date, and the owner thereafter lets it. In my opinion, the

decision of the judge was right on this point and there is no ground for an appeal.

Another point was taken. In the original tenancy agreement which expired in April 1943, the landlord is expressed to be, not Thomas Epps, the plaintiff

in the proceedings in the court below, but his brother, Henry West Epps, who was acting for him in the matter of the tenancy. It was submitted on behalf of

the defendant that, because the brother who became nominally a party to the tenancy agreement was therein called the landlord, the plaintiff was not the

landlord within the meaning of Sched I(h) to the Act of 1933. The first answer to that contention is that the plaintiff is not relying on that agreement. After it

had expired, the rent of the house continued to be paid to agents on his behalf and was received by him, and, apart from the agreement, the relation of landlord

and tenant was quite clearly established between the parties long before the proceedings were taken in the county court. The second answer to the contention

is that the agreement was an ordinary agreement in writing and, even if the plaintiff was compelled to rely on it, evidence would have been admissible on

ordinary principles applicable to any contract in writing, to prove that the person signing it as a contracting party was acting on behalf of an undisclosed

principal. Two old cases were cited, Humble v Hunter and Formby Brothers v Formby, where the view was taken that the particular contract under

consideration was expressed in such terms as to prevent the application of the ordinary principles of agency in regard to an undisclosed principal, with the

result that the parties were tied down to an agreement between the persons signing the document and no one else. Both these cases have been discussed on

many occasions and I venture to express the opinion 􀂭 147􀀉 that they should no longer be regarded as good law, a view which is, I think, justified by the

observations made on them by Lord Sumner in Fred Drughorn Ltd v Rederiaktiebolaget Transatlantic. I think that the appeal fails on both the points argued

before us, and must be dismissed.

MACKINNON LJ. I agree. I think that the county court judge was quite right in the construction which he placed on Sched I(h) to the Act of 1933. If the

construction for which counsel for the defendant contends is correct, it is inconceivable that the legislature would have wasted ink and paper by inserting the

unnecessary words “who has become landlord by purchasing a dwelling-house,” since it would have been sufficient simply to have said “not being a landlord

who has purchased a dwelling-house.” Counsel for the defendant discussed some cases which dealt with the meaning of the word “landlord” in the Rent and

Mortgage Interest Restrictions Act, 1923, s 2(1). The words in that subsection are:

‘Where the landlord of a dwelling-house … is in possession of the whole of the dwelling-house at the passing of this Act… ’

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Manifestly, a landlord who had a tenant could not be in possession of the house, and that mere fact shows that the word landlord in that subsection does not

mean one of the two parties to a contract of tenancy—that would be ridiculous—but the owner of a house who is in a position to become a party to such a

contract. The considerations applicable to the meaning of the word “landlord” in that subsection are obviously entirely different from those which govern the

meaning of the simple words “a landlord who has become landlord by purchasing a dwelling-house” which we have to construe. I agree that this appeal

should be dismissed.

LAWRENCE LJ. I also agree. I will only add that if the plaintiff were suing on the agreement of 4 April 1942, it might be necessary for us to consider the

decision in Danziger v Thompson, in which it was held that oral evidence was admissible to show that a person described as the tenant in a tenancy agreement

entered into the agreement as the agent of another person. The plaintiff in the present case, however, is not suing on the agreement. Moreover it is to be

observed that the only words in the agreement which could be contradicted by proof of agency are “hereinafter called the landlord,” which are not necessarily

inconsistent with the fact of the person so called being the agent for an undisclosed principal.

Appeal dismissed.

Solicitors: Neil Maclean & Co (for the appellant); W J Stoffel (for the respondent).

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 148