Tenant encroaches on adjoining land of his landlord–Held to have acquired possessory title coextensive with his tenancy–Acceptance of new rent book did not involve surrender of tenancy and regrant
This was an
appeal by Mr George Frederick Smirk, tenant of 191 Victoria Road, Woolston,
Southampton, from a judgment of Pennycuick V-C dismissing his claim against the
respondents, Lyndale Developments Ltd, for a declaration establishing his
possessory title to land at the rear of 191 and 193 Victoria Road,
alternatively for a declaration that such land formed an extension of the locus
of his tenancy, and ordering him to yield up possession of the land to the
respondents.
Mr J H Hames
QC and Mr D Ritchie (instructed by Lovell, Son & Pitfield, agents for
Paris, Smith & Randall, of Southampton) appeared for the appellant, and Mr
R Cooke (instructed by Riders, agents for G H Fowler, Shaw & Holloway, of
Brighton) represented the respondents.
Giving the
first judgment, LAWTON LJ said that the plaintiff was an engine-driver, and in
1955 British Railways granted him a tenancy of 191 Victoria Road. He was a keen
gardener, and he decided to put to some useful purpose waste land belonging to
British Railways which lay at the back of his house. From about 1955 onwards he
and his wife cultivated some of this land, and the Vice-Chancellor had found as
a fact that from 1960 onwards he had occupied a defined strip of it in
circumstances which gave him a possessory title as against his landlords. He
had also enclosed land at the back of no 193 Victoria Road, but Pennycuick V-C
found that he had not had that land under his control for a period long enough
to establish a possessory title, and the present appeal was concerned only with
the title he claimed to the strip at the back of his own house, no 191. In 1967
British Railways decided to sell the waste land together with certain houses,
no 191 included, and in October of that year the whole property was knocked
down to the defendants at auction. Subsequently it was conveyed to them subject
to existing tenancies. They knew that the plaintiff’s tenancy of the house had
started in about 1955 and was a controlled one. Having bought the property, the
defendants had to collect the rents. The plaintiff’s rent had been deducted
from his wages, but this could not of course continue after the sale. Evidently
someone distributed rent books on the defendants’ behalf, and one of these went
to the plaintiff. It was in a common form, but the conditions of tenancy set
out in it were in some respects different from those in a book supplied to the
plaintiff by British Railways. The differences were not very important, and the
first condition in the new book began with the words, ‘These premises are let on
the following terms (where such terms are not inconsistent with an existing
tenancy).’ The plaintiff paid his rent,
which was entered up in the new book, and carried on cultivating the land at
the back of no 191. Early in 1973 he saw bulldozers at work on the waste land,
and his apprehensions eventually led him to apply to the court for an
injunction.
At first
instance, Pennycuick V-C had been required to consider in detail the law
relating to encroachments by tenants on their landlords’ land. He had untangled
this untidy branch of the law in a way which he (Lawton LJ) accepted as
correct. On the law as untangled, if the plaintiff had established a possessory
title to the land at the back of no 191, the effect would have been that the
landlords could not have evicted him from that land while the tenancy
lasted, but that his title would not have extended beyond the period of his
tenancy; in other words, he could not sell the land or otherwise dispose of it,
and he held it only as part of his tenancy, so that when his tenancy came to an
end he would have to give it up. The question raised by the Vice-Chancellor at
the end of the argument was whether, when new rent books were distributed by
the defendants, the tenancy that had been increased in area by the encroachment
came to an end. He (Pennycuick V-C) came to the conclusion that it had done,
and that that meant that the plaintiff’s possessory title had determined. Mr
Hames now submitted on the plaintiff’s behalf that his tenancy had never ended,
so that his possessory title was still effective against the defendants.
Counsel had referred to well-known authorities which established that a
surrender by operation of law depended on something in the nature of an
agreement, and that that agreement must amount to more than a mere variation of
the terms of an existing tenancy. It was said that an agreement could not be
inferred merely from the fact that a landlord handed a rent book to a tenant.
He (his
Lordship) thought that a good deal depended on the circumstances. At the
beginning of a weekly tenancy, it might well be that the handing of a rent book
to a tenant amounted to some evidence that the tenant was accepting the tenancy
on the terms set out in the book; but if the tenancy had subsisted for many
years when a new rent book in replacement of an old one was handed to the
tenant, then it seemed to him (Lawton LJ) that that was wholly insufficient to
justify the inference that there had been any agreement to do anything. These
rent books were common-form documents; often they served no other purpose than
the ministerial one of providing a record of rent paid. He found it impossible
in the present case to discern any evidence of an agreement. Even if the
handing over of the book constituted some such evidence, in his judgment it
showed no more than a variation of the terms of the original tenancy, none of
the changes being substantial enough to lead to the inference that there was an
intention to grant a new tenancy. In any case, the new terms started off, as
already noticed, by saying that they were not to have effect if they were
inconsistent with the terms of the existing tenancy. That showed that the
parties contemplated that the existing tenancy would continue. He (his
Lordship) was accordingly unable to draw the inference the Vice-Chancellor had
drawn, and he would allow the appeal, with the consequence that as long as the
plaintiff was tenant of no 191 he could go on tending the land at the back, but
when he ceased to be tenant he would have to give the land up.
WALTON J
delivered a short concurring judgment, and CAIRNS LJ agreed. The appeal was
allowed with costs above, and half the plaintiff’s costs below.