TERMINATING A TENANCY.

Hawke's Bay Tribune, Volume X, Issue 126, 12 May 1920, Page 6

TERMINATING A TENANCY.

AN DIPORTANT JUDGMENT. POSSESSION OF A DWELLINGHOUSE. An important judgment was delivered by .Air. R. W. Dyer, S.M., at the Hastings Magistrate’s Court this morning in the case Sullivan v. Wilson, a claim for rent and possession of a house. The judgment is as follows: — The plaintiff claims from the defendant possession of a certain dwellinghouse in Avenue road west, Hastings, and the sum of £lB 18/- rent alleged to be due from the 23rd of October to the 31st March last. The facts were that Qie plaintiff let the house to the defendant at a rental of 15/- a week. The defendant piiid rent at this rate for the first few months of the tenancy, and the plaintiff then raised the rent I to Iff/- a week, and the defendant had since been paying rent at the increased rate. On the Bth of January last the plaintiff gave the defendant written nonce to vacate the premises, stating that the property had been sold, and that the purchaser required possession. The property is held under the Deeds Registration Act, 1908, and is subject to a mortgage of £450 to a Mr. William English. It is admitted that the rent is in arrear for the period named, but it is contended that the plaintiff is not entitled to recover at the increased rate of 16, - a week for any portion of the time. It was proved that the plaintiff has sold the property for £6OO, that a deposit of £5O has been paid, and that the purchaser requires possession of the house to live in. The first point taken for the defence -is that as the property is under mortgage, the legal estate is in the mortgagor, and that therefore he is the only person uno can give notice to quit. Mr. Hallet relies on the case of Liddle v. Rolle:.ton (1919 N.Z.L.R., 408) in support o> this contention. In that case Mr. Justice Edwards says:—“Counsel for the defendant contend that a notice to determine a tenancy must be given by the person legally entitled to the immediate reversion, and that as the plaintiff had at the time when the notice was given no estate or interest, in the demised premises, the notice given on her behalf is void and incapable of adoption by the plaintiff or ratification by the plaintiff.” I think the facts in the present case are different to Liddle v. Rolleston case. In the present case the plaintiff is mortgagor of the property. He let the defendant into possession, the rent has been paid to him, and it is settled law that a tenant, with the exception of a few instances, is estopped from disputing the landlord's title. The notice to quit may be given by either the landlord or the tenant. For this purpose the landlord is the person in whom the legal reversion is vested or the person whom the tenant is bound to recognise as his landlord as estoppel. (18 Halsbury, 451). I think therefore that as the defendant is bound to recognise the plaintiff as her landlord by estoppel, that it is competent for him to give tho defendant notice to quit. It is further contended for the defendant that under section 56 of “The Housing Act, 1919,” the Court may iu any case if the Court is of opinion that the making of the order would cause undue hardship to tho tenant.. As 1 read it,the provision of the section only apply if the tenant continues to pay the rent at the agreed rate. 1 do not think that it means that the tenant can claim the benefit of the provisions of tho section if ho fails to pay the rent. This would be manifestly unfair to the landlord. With respect to the increase of rent, under section 2 of tho War Regulations Amendment Act, 1916, the rent cannot be raised above the standai 1 rent except in the case of rent accrued duo before tho passing of the Act, or in the case of expenditure by the landlord on tho improvement or alteration of the dwellinghouse. I think therefore that in the present case the rent cannot be legally increased. By section 6 standard rent is defined to mean in respect of houses let after 3rd August, 1914, the rent at which the house was first let. I think that the plaintiff is entitled to judgment for the_ rent at the original rate, namely, £l7 5-, as against the defendant’s separate estate and to an order for possession, possession to be given within one week, but if during that time four weeks’ rent at the rate of 15/- is paid in advance then possession to be given within four weeks from 12 May, 1920. Judgment was for plaintiff for £l7 5 - with costs £4 8/-.

Sir Commin received judgment for the plaintiff and Mr. Hallett for the defendant.