Possession of flat — Tenant’s appeal against County Court Judge’s order — Judge’s finding that it was a condition of tenancy that tenant would act peacefully towards landlord when paying rent — Judge held tenant was abusive — Breach of obligation of tenancy found by Judge — Appeal allowed and case remitted to County Court for hearing of claim based on allegation of arrears of rent
The Court allowed this appeal by Mr Gilbert France, the tenant of a flat at 86, Cambridge Street, Westminster, against the order of Judge Dale at Westminster County Court granting possession of the flat to the landlord, Mr George Theophile Tideswell Liffen.
Mr Leonard Halpern (instructed by Mr S Kalman) appeared for the appellant; Mr CT Salkeld-Green (instructed by Messrs Piper, Smith & Piper) represented the respondent.
Mr Halpern said that the ground of appeal was that Judge Dale introduced as a reason for making a possession order the point that it was a condition of the tenancy that the defendant would act peacefully towards his landlord, but when rent was paid Mr France was abusive. The Judge found that the defendant had broken an obligation of his tenancy, and that he had been abusive and objectionable to his landlord. The First Schedule to the Rent Act, 1933, provided that a possession order could be made if an obligation of the tenancy had been broken. Counsel submitted that, even accepting the finding that the tenant did not pay the rent quietly and reasonably, the Act did not entitle the Judge to grant possession.
Mr Salkeld-Green contended that a covenant to pay rent must imply a covenant to pay it peaceably and not annoy the landlord.
Lord Justice Somervell, giving judgment, said that the landlord called weekly for the rent, and it was alleged that he was subjected to annoyance and abuse by the tenant at the time of payment. Judge Dale had implied a condition that the rent must be paid peacefully.
“The landlord could have refused to go on collecting the rent,” said Lord Justice Somervell, “and asked the defendant to send it, but as he did continue to collect rent I cannot see that any obligation of the tenancy quoad payment of rent can be said to have been broken. I think the appeal should be allowed, and the case remitted to the County Court Judge for a further hearing of the plaintiff’s claim so far as it is based on an allegation of arrears of rent.”
Lords Justices Jenkins and Hodson agreed.