Possession — Premises altered and rent reduced — Foster v Robinson applied
This was an appeal by Mr Francis Bernard McKenna, landlord of a maisonette above shop premises at 8, Myrtle Street, Liverpool, against the refusal of Judge Fraser Harrison, at Liverpool County Court, to make an order for possession against the tenant, Mrs Frances Baker.
Mr E Somerset Jones (instructed by Messrs Mawby, Barrie & Letts, agents for Messrs Silverman & Livermore, of Liverpool) appeared for the appellant landlord. The respondent tenant did not appear and was not represented.
The facts were that Mrs Baker originally paid 15s a week rent, but three-and-a-half years ago, the landlord, after, it was said, obtaining the tenant’s consent, moved the access to the rooms to the rear of the premises, depriving the tenant of a front entrance and hallway. In consequence he had reduced the rent to 5s per week. The rateable value of the tenant’s premises was £20 per annum, and the landlord now contended that the protection of the Rent Acts did not apply, as the rent was less than two-thirds of the rateable value. The County Court judge held that at the time of the reduction of the rent there was no surrender of the previous protected tenancy.
Giving judgment, Lord Evershed, MR said that it appeared from the evidence that the alternations to the premises took place after discussion with and with the consent of the tenant. The County Court judge did not have the assistance of the decisions in Foster v Robinson, [1951] 1 KB 149, and Collins and another v Claughton, [1959] 1 WLR 145, and he appeared to be under the impression that a protected tenancy could not be surrendered except by actual delivery up of possession. The judge thought that the agreement between landlord and tenant was nothing more than an express reduction of rent. A protected tenancy could however be terminated by deliberately doing that which was the equivalent of physical delivery up of possession. The present case was on all fours with Foster v Robinson, and the landlord was entitled to a possession order. If the alternations were done before Mrs Baker consented, the position might be different.
Ormerod, LJ, and Lloyd-Jacob, J, agreed, and the appeal was allowed, with costs. An order was made for possession in eight weeks, not to be drawn up for 14 days. The 14-day suspension was to give the tenant an opportunity of asking for a new trial if she contested the facts on which the Court reached its decision.
