LANDLORD & TENANT

Evening Post, Volume CII, Issue 33, 8 August 1921, Page 7

LANDLORD & TENANT

HOW POSSESSION WAS GAINED

CLAIM FOR DAMAGES SUCCEEDS.

A judgment of interest to landlords and tenants alike was' delivered by Mr. Justice Hosking- in the Supreme Court to-day. Plaintiff was Thomas Henry Tankard, and defendant John Thomas Twomey. '"'

This was an action in which the plaintiff sought to Tecover damages for wrongful ejectment on Bth February last from a house in which he was at the time tenant to the defendant under a verbal tenancy, terminable ; by one month's notice to quit. The defondant had reoentlv bought the premises, subject to the tenancy, which was one of sonic five or six years' standing. In order to obtain possession from the plaintiff, he had in July, 1920. taken 1 proceedings in the M;icristrateV Court, but no order was made. Afterwards Ire claimed an increase in the rent. and_as a. result it was raised from 16s to 21s per week. On Ist December he again took proceedings to obtain • possession and the payment of some fifteen weeks' arrears of rerii,. The -plaintiff paid the arrears into Court on 9th .December, and the proceedings dropped. On 14th December the plaintiff i received a month's notice to quit, the notice- also requiring all rent accruing due prior to tbe expiration of the notiro to be ..paid to the defendnnt's solicitors, and stating that (the rent would be _recaiverl without nrejudire to the notice. On 25th January a surmnoiifi to rs^over possession was a-Vain issued., but was never served. On the 28th January the plaintiff paid his iw>t up to the 26th. December. .On the 20th he—a widower — left with his children for a holiday, shuttimr up the house and der-piitins? the V«y with a neighbour fir safe keepinp-.. ,On Bt.h 'February the defendant, while* the house remained unoccupied, entered br a window and put all the furniture together in one room. A letter, dated -10'h February. was pn-t?d to t-hs plaintiff informing him tliat the d«f?i-d»T>t hnd resumed possession as from Bth iiKt., and requirincr 'navrnent --of the bnlnnce of vent (Jims'. Phwtlv afterw-ds the rkitilif? returned from Irs holiday and requested to be rei"sta'-ed in possession, b\it this was verWi*d. ';

"Tlie dwell infrhovse." said his Honour, "is or">. siihieft to the urovisirms^of section 13 of The War f ,stn«ls>ti"n Act, 1.918, and. by reason of these rrw's'ons, it has been Jujld by this C.nuvt in Jnlinston ■ v. F]pHier.,'ifl2l. N.7.L.K.. S?9, that a notice to quit which has e.imred does not entitle the landlord to obtain possession by entry while the premises continue to be in the pos-'-?s''on of Mm tenant. The defendant see'-'s to justify his entry oh the gro'md that the rent was in arre'ir when he made it. Tn order to. determine whether he is right, it is necessary to discri'pjrpte between the provisions if subsection 1 and those in subsection 2 of Section 13.. Under" t-lio former subsection. statin?; it in substance so far as new material, iio order for no'ssession against the. tenant, if a soldier or discharged splflier 6r the wife of \yidow of a soldier or disoharaced'soldier, is to be nmrte co long as the tetinnt continues to pay the rent, and performs the other conditions of his tenancy, except on the * specific grounds there set out, whereas under subsection 2, which applies to tenants other than a soldier, etc.. an order may be made, not only on on? or more of the grounds mentioned in subsection (1), but nlso on any of the additional trronnds stated in siiViseotion 2. Two of. these deal with the event of tho landlord's requinng the- premises for his own oc.cilnation nnd in the event of a sale, .md th» tHrd, in clniise (c), is, 'any other ground that may be Hwmed snffioienf: by the Court inaVi n ,n- f.he o'"d*>r.' "There is thus a., greater extent of protection for a tenant who, is, within sub-section j." than for-a tennnt within sub-section 1. But apother difference of vital importance in'this'case is that sub-section 2 ' does not /introduce the', condition found in sub-section 1 with regard \to the payment o£ rent and the nerformance of the other conditions of the tenancy. <■ Whether under sub-sec-tion 1 a breach of the condition for payment of <rent and the performance of the other conditions of the tenancy is to render continued possession unlawful . and afford a. ground for on order I need not discuss. The point is that the condition is not s attached to a tenant undar sub-section 2. If the breach of it is a ground for an OTder under sub-section 1, then it is incorporated as a ground in sub-section 2, though even if not so incorporated the breach might be treated as a sufficient ground for an application under clause (o). As this is not a case-within subsection lHhe defence set up that nonpayment of the rent rendered continued possession unlawful, even if that were a valid excuse in a, case under that subsection for proceeding without an order, must fail' and the . defendant is liable in damages for having improperly taken possession. On a consideration of the circumstances given in evidence I assess them at the sum of £50. On the counter-claim for rent the defendant is entitled to the amount paid into Court (£6 12s). This is to be set off against the £50, and judgment is given for the plaintiff for the balance, plus costs (£lO 10s) and disbursements." Mr. Jackson appeared for plaintiff, and Mr: W. H. Cornish for defendant,