SELLING A HOUSE

Evening Post, Volume CXIII, Issue 32, 8 February 1927, Page 10

SELLING A HOUSE

POSSESSION REFUSED

UNTIL COMPLETION OF SALE

Of interest to property-owners was a reserved judgment delivered in the Magistrate's Court to-day by Mr. E. Page, S.M. The case was that in which Kenneth Stewart MacKenzie (Mr. H. M'Cormick) claimed possession of a. house in Crosby terrace from his tenant, Amelia C. Brown (Mr. A. B. Croker).

Outlining the facts, his Worship said that, the plaintiff agreed on 3rd December, 1926, to sell his house to a Mr. Arnold, the agreement providing that the sale was to be completed within a month from that date, when vacant possession would be given and taken, and all the customary adjustments of rates and insurance would be apportioned. When the agreement was executed, a formal notice determining the tenancy was served upon the defendant.

The agreement for sale was not completed by transfer within the month, and on 15th January last, the plaintiff issued a summons claiming possession. He based his claim under section' 9, sub-section E of the Housing Amendment Act, 1921, on the ground tliat an agreement for the sale of the premises had been duly entered into to be completed by transfer within' one month' from the date thereof, and that the premises were .reasonably required by the purchaser for his own occupation. "I do not think that this agreement comes within the section referred to," continued Mr. Page. "The agreement is not an absolute agreement for sale, but a conditional one. It is enforceable against the purchaser if, and only if, the vendor is liable to give vacant possession of the premises. It is, therefore, not an agreement that is to be completed by transfer within one month from the date thereof,' it is to be completed by transfer only if vacant possession can be given. Sub-sec-tion 2 of section 10 of the Act of 1921 indicates that sub-section E of section 9 applies, only to an agreement that is intended to be carried into effect, irrespective of the question of possession. I think, theretore, that the order cannot be granted under this sub-section."

Dealing with the application of plaintin s counsel for an order under sub-sec-tion A of section 9 on the ground that there had been failure to pay rent, Mr. Page held that at the time the summons was issued there had been-no such failure *or the above reasons,, he was of opinion t d F P°ssession could not be

His Worship added that if the sale were duly completed and the transfer register* ed, there seemed to be no reason why the purchaser .could not himself obtain an or der for possession. .;•