George Vincent and Another v. Yusufali Chakera and Others Civ. App. 3-D-70; 23/6/70; Georges C. J.

George Vincent and Another v. Yusufali Chakera and Others Civ. App. 3-D-70; 23/6/70; Georges C. J.

The landlord – respondent successfully brought an action for possession on the ground that the tenant had unlawfully sub-let the premises and had moved completely out of occupation. Here was evidence that the tenant/first appellant had given the sub-tenant/second appellant a power of attorney to look after the premises and to pay rent on his behalf though the respondent was not informed of this. The second appellant testified that he had been a sub-tenant for 5 years and that the landlord had known this. It was contended by the appellants that the Landlord had accepted the subtenant as his tenant. There was also a preliminary point whether a notice of termination stuck to the outer door of the premises is adequate to determine a tenancy.

            Held: (1) “My view is that the landlord must begin by leading facts to show that there has been a sub-letting and that he had not given his consent. If he does this, he burden shifts on to those asserting the contrary. The landlord in this case did lead such evidence. The evidence to the contrary was not believed and rightly so. ……… Even if a rent collector for the landlord had seen the sub-tenant on the premises while he collected rent from the tenant that of itself could be no reason for thinking that there was a sub-tenancy. When the landlord became aware that there may have been a subtenant he made his position quite clear in his letter of 13^th June, 1967. The tenant last paid rent for the month of May. When the suit was filed three months rent were due up to the 31^st August – the date the notice terminated. This was claimed in the suit. Thereafter the landlord ceased to accept rent. The sub-tenant paid the monthly rental into the landlord’s account. None of these matters can be said to indicate any waiver on the part of the landlord, or an intention to accept the sub-tenant as his tenant.” (2) The sub-tenant was a trespasser and “It would be quite unreasonable to protect a person unlawfully let into the possession of premises when provisions exist by which a landlord who unreasonably refuses permission to sub-let or assign can be compelled to give his consent. Persons who do not follow the methods provided by law to ensure the protection their rights can hardly complain if they suffer thereby. In this case, particularly, the tenant and sub-tenant had full warning of the landlords’ attitude and the tenant clearly had the benefit of legal advice. I agree with the leaned Senior Resident Magistrate that no question of reasonableness arose in this matter.” (3) The service of the notice affected in the way it was, was proper and adequate to determine the tenancy because the sub-tenant had a power of attorney from the tenant to do all acts in relation to the premises and on the facts of the case he must have seen the notice. The principle that notice must be served on the tenant personally in order to determine the tenancy [Hogg v. Brooks (1185) 15 Q.B. D. 256] would be inapplicable. ….. In the case of a monthly tenancy such as this where security of tenure is dependant on the operations of the Rent Restriction Acts which are geared to protecting the tenant in occupation. If the tenant could disappear and thus make personal service or service on an agent impossible then anyone whom he left in possession would be protected quite apart from the Rent Restriction Act since the original tenancy itself could not be terminated once the tenant could not be found. None of these considerations could arise in Hogg-v- Brooks where the landlord had created a 212 year term in any event – terminable at the end of 14 years on certain conditions. Since he could not perform the conditions, it was held that he could not terminate the lease. In 7 years, by the effluxion of time, the tenancy would in any event terminate.” (4) Appeal dismissed.