Contract to sell — National Conditions of Sale — Notice to complete — Notice to rescind — Purchaser in possession under licence to carry out works — Proceedings under Ord 113 of the Rules of the Supreme Court — Whether purchaser had a licence to occupy — Whether Ord 113 procedure appropriate
In June 1988 the plaintiff contracted to sell 3 Ellesmere Road, London NW10, to the defendant for £115,000, subject to the National Conditions of Sale. As the defendant purchaser failed to complete on the agreed date of July 14 1988, the plaintiff served a notice to complete which expired on August 5 1988; again the purchaser failed to complete. In October 1988 the plaintiff then served a notice to rescind the contract.
At some point the defendant, with the plaintiff’s licence, entered the premises and carried out works to the value of about £4,000. The defendant and his family have lived in the premises since October 21 1988. The plaintiff commenced the present proceedings under Ord 113 of the Rules of the Supreme Court to recover possession of the property. The defendant contended that as he entered the premises with the plaintiff’s consent, he had a licence to be in occupation and the summary procedure for the recovery of land under Ord 113 was inappropriate: it was a procedure that applied to squatters and others who had entered as trespassers.
Held The defendant had a licence only to enter to carry out works and no right or licence to occupy the premises, condition 8 of the National Conditions of Sale making clear that where a purchaser is allowed access for the purpose of carrying out works, the purchaser could not be treated as being in occupation as a licensee. In any event, the notice to rescind the contract, by virtue of condition 8, terminated any licence that the defendant might have had. The defendant had shown no other right to remain in occupation after the notice to rescind and therefore the procedure under Ord 113 could be used.
Under Ord 113, and the summary procedure for possession, the order for possession is made on Form 42(A) and the plaintiff is entitled to immediate possession. The defendant had not commenced any proceedings for specific performance, a matter that might have shown some grounds for believing that the summary procedure was inappropriate.
Henderson v Law
(1985) 17 HLR 237 applied.
David van Hee (instructed by Green David Conway & Co) appeared for the plaintiff; and Colin Mendoza (instructed by Stein Swede Jay & Bibring) appeared for the defendant.