LANDLORD’S CLAIM FAILS

Dominion, Volume 30, Issue 148, 19 March 1937, Page 14

LANDLORD’S CLAIM FAILS

Possession of Combined Shop and Dwelling EFFECT OF SUB-TENANCY Judgment for det'emhin.ts is given in a reserved decision by Mr. J. 11, Luxford, SAL, in the Magistrate’s Court, Wellington, on a claim by E. It L’ownes. mercer to recover possession of premises occupied partly by J. 11. Hodgson as a simp and partly by H. Jackson as a dwelling. Plaintiff let the combined premises to the defendant Hodgson, who sub-let the dwelling portion to Jackson. Plaintiff terminated Hodgson’s tenancy by a notice to quit. Hodgson accordingly vacated the shop, but could not redeliver possession of the dwelling portion'because the defendant Jackson refused to leave it. No notice of any kind was served on Jackson, but plaintiff commenced proceedings against both on the ground that the tenancy was duly determined by the notice to quit served on Hodgson. Interesting Questions Raised. "This raises two very interesting questions.” states tlie judgment, "which did not arise under the former legislation because combined shops and dwellings and sub-tenants were specially provided for. "As between plaintiff and Hodgson I do not think there was a tenancy of a dwelling-house within tlie meaning of the Act. A tenancy of a combined shop and dwelling-house is not a tenancy of a dwelling-house within the meaning of the Act.

“The position between Hodgson and Jackson is different. Here there can be no doubt that the premises, thq subject matter of the tenancy, constitute a dwell-ing-house within the meaning of the Act. But. that tenancy was not created by phtinliff, atid the question arises whether Jackson can plead the Act as a defence to the plaintiff’s claim. The purpose of the Act is to prevent nn order being made for the recovery of possession of anv dwelling-house to which the Act applies or to the ejectment of the tenant therefrom, except on one or more of the grounds specified in section 13. It will be seen that two separate orders are affected : An order for recovery of possession and an order for the eiectment of the tenant. Definition of Tenant. "A tenant is not defined by tin; Act. but as the whole of its provisions are If,lined on the basis of single tenancies, there is no just ilicißion for interpret ing the word to include a sub-tenant. Ry (hat I mean that whenever the word tenant appears it no'tins the immediate tenant of a landlord. "It will be seen that a hindlerd has the right to obtain an order againtt tlie Icnnnl or the siih-tenant. ami that both or one of them nitty he defendants in rhe proceedings brought for that, purpose. But even if any one or more of the grounds set out in section 13 of the Act hate lii'on established, the court may retire to make tin order if it is of opinion that the tenant or any other person (which would include the snh-fenanti would thereby be caused greater hardship titan the landlord. The nlaintiff in this case has not attempted to prove any of (he grounds set out in section 13. because Hodgson does not oppose tile order, anil- tlie plaintiff has based his claim solely on the ground the Fair Rents Act has no application io (he premises. "In my opinion, that Act does apply to flic portion oecupetl by Jackson, and as plaintiff already has possession of the shop portion of I hi' tenement, plaintiff must be nonsuited.”