Underlease — Assignment — Assignee also assigning subunderlease — Non-payment of rent — Landlord seeking possession against second assignee — First assignee not party to proceedings — Landlord executing warrant for possession — Whether execution operated against first assignee as peaceable re-entry — Whether subunderlease forfeited — First instance judgment for landlords upheld on appeal
The plaintiffs were the landlords of an underlease of a flat at 25G Eaton Square, London SW1. They granted a subunderlease to M in 1980 for a term to expire in 1992. There was a proviso that if any rent was in arrears the landlords had the right to re-enter. M, with leave of the plaintiffs, assigned the subunderlease to B, the defendant, in 1983. She in turn assigned it, with licence, to D in 1988. D fell behind with the payments and the landlords claimed forfeiture under the non-payment clause of the lease and also claimed possession under Schedule 15 to the Rent Act 1977 as the tenancy was a protected tenancy. In the meantime, B sued D for the unpaid amount on the assignment and obtained judgment for about £155,000 on January 13 1992. She also asked to be joined as a party to the proceedings between the plaintiffs and D. That application was refused on the ground that an order for possession had been made on the uncontested basis that D was the tenant. On February 18 1992, the warrant for the execution of the possession of the premises was executed and the plaintiffs secured possession by changing the locks.
On February 27 B had obtained a consent order that D should forthwith deliver possession of the flat to her. She then took possession of the flat by fitting new locks. The plaintiffs applied to the county court for a summary order for possession. On June 22 B made a formal application for relief from forfeiture on the ground, inter alia, that it was an invalid assignment to D and that she was the lessee. The judge gave judgment for the plaintiffs on the summary order and refused to adjourn. He stated that there had been a peaceable entry on February 18 so that the lease had been forfeited as against B. B appealed submitting that the warrant for possession executed on February 18 was the last stage in the landlord’s proceedings against D and intended to bring those proceedings to an end. It was not intended as the execution of a right of entry as against B and she contended that as against her, there had been no unequivocal act.
Held: The appeal was dismissed.
1. The issue was whether, assuming that the plaintiffs, with good cause, thought that D was the tenant and purported to forfeit against him, that had the effect of forfeiting against B by peaceable re-entry.
2. The service of the writ against D was an election by the plaintiffs to bring to an end the term created by the subunderlease. Forfeiture as against D was completed by the execution of the warrant.
3. It was also a peaceable entry against B which did bring about the forfeiture of the estate even though B had not been a party to those proceedings. The landlord’s intention was not to forfeit the leasehold estate as against a particular person. Their intention was to determine the subunderlease by an unequivocal act irrespective of whether it was vested in D or B. There could hardly be a more unequivocal act than changing the locks, and that act could be regarded not only as the culmination of proceedings against D, but also as the exercise of a right of peaceable re-entry against B.
4. Further, B was not protected by the Protection from Eviction Act 1977 because on February 18 1992 she was not residing in the premises at all.
Beverly Ann Rogers (instructed by Boodle Hatfield) appeared for the plaintiff landlords; Marc Dight (instructed by Maurice Hugell & Co) appeared for the tenant.
