Rent Act 1977, section 12(1)(c) and Schedule 2–Position on death of resident landlord–Possession action by deceased’s brother who was both sole executor and sole beneficiary under the will–Brother went into occupation as a resident in deceased’s flat about 10 months after her death–No vesting assent, however, made by brother as personal representative in favour of himself as devisee during the 12 months ‘disregard’ period allowed by paragraph 1(c) of Schedule 2–Submission on behalf of tenant that the deceased landlord’s interest remained vested in the brother as personal representative until after expiry of the 12 months’ period, so that the tenant became fully protected–Tenant’s argument rejected–Landlord’s interest belonged to brother both before and after any assent as the sole executor and also sole beneficiary of a solvent estate–The only period which required reliance on Schedule 2 was the 12 months during which he was not in occupation–County court judge’s order for possession upheld–Cautionary note that this was a case where the executor was absolutely entitled to the property and the estate was solvent.
In this appeal
the tenant, Mrs Christina Mason, of the upper part of a house at 45 Park Road,
Hounslow, Middlesex, challenged the decision of Judge Bernard Lewis at
Brentford County Court granting possession of this part to Ernest Beebe. Mr
Beebe was the brother and personal representative of Mrs Ethel Keen, the owner
of the house, who had occupied the lower part of it as a resident landlord. Mrs
Keen had let the upper part to Mrs Mason on July 16 1976, ie after the resident
landlord provisions of the Rent Act 1974, now contained in the Rent Act 1977,
section 12 and Schedule 2, had come into operation on August 14 1974.
D R Watkinson
(instructed by Bensons) appeared on behalf of the appellant; A M
Hughes-Chamberlain (instructed by Bonnett, Son & Turner) represented the
respondent.
Giving the
first judgment at the invitation of Stephenson LJ, TEMPLEMAN LJ said: This is
an appeal against an order of His Honour Judge Bernard Lewis made in the
Brentford County Court on December 3 1979 whereby he granted possession to the
plaintiff respondent, Mr Beebe, of the upper part of 45 Park Road, Hounslow,
Middlesex. The house, 45 Park Road, was owned by the late Ethel Keen, and she
lived there. On about July 16 1976 Mrs Keen let the upper part to the appellant
defendant, Mrs Mason. Mrs Keen continued to occupy the lower part herself.
By her will
dated December 17 1973 Mrs Keen gave all her property to her brother, Mr Beebe,
and appointed him sole executor. Mrs Keen died on September 7 1978 and her will
was proved by Mr Beebe in the Winchester District Probate Registry on October
30 1978.
On July 2 1979
Mr Beebe took up residence in the lower part of 45 Park Road, and on July 18
1979 solicitors acting for Mr Beebe gave notice to Mrs Mason requiring her to
quit the upper part on August 25. Mrs Mason remained in possession and Mr Beebe
brought proceedings against her in Brentford County Court, proceedings which
were served on September 7 1979, and in those proceedings he set out that he
was the executor and residuary devisee and he set out the other facts to which
I have referred, and claimed to be a resident landlord within section 12 of the
Rent Act 1977 and entitled to possession.
It is common
ground, and vital for the argument which has been adduced to us on behalf of
Mrs Mason, that Mr Beebe did not before any relevant period make a written
assent vesting the estate in himself as absolute owner, as distinct from the
legal estate being vested in him in his capacity as personal representative of
Mrs Keen.
On December 3
1979 the learned judge made an order for possession on January 14 1980, and
subsequently on January 7 1980 he granted a stay until further order. In these
days any order for possession is bound to create a disturbance and hardship on
the tenant, and Mr Watkinson, on behalf of Mrs Mason, has very properly sought
to analyse the relevant provisions of the Rent Act in such a way as will enable
her to claim the protection from the Act and remain in possession. We are bound
by the provisions of the Act and must give them their true and proper
construction. The tenancy of Mrs Mason would be a protected tenancy under the
Rent Act were it not for the provisions of section 12 of the Rent Act 1977, and
the dispute in this appeal is whether the provisions of that section apply so
as to enable Mr Beebe to obtain possession.
Section 12 of
the Rent Act 1977 provides, with an exception not immaterial:
. . . a tenancy
of a dwelling-house granted on or after August 14 1974 shall not be a protected
tenancy at any time if–
three
specified conditions are satisfied. The tenancy in favour of Mrs Mason was
granted after August 14 1974 and it remains to be seen whether the conditions
were, and continue to be, satisfied. Condition (a) stipulates that the
dwelling-house (in this case the upper part of 45 Park Road) forms part only of
a building (in this case the whole of 45 Park Road) and that the building is
not a purpose-built block of flats. This condition is satisfied. Condition (b)
requires that the tenancy was granted by a person (in this case, Mrs Keen) who,
at the time she granted it, occupied as her residence another dwelling-house
(that is the lower part of 45 Park Road) which also forms part of that
building, namely 45 Park Road, as a whole. That condition is also satisfied.
Condition (c) stipulates:
(c) subject to paragraph 1 of Schedule 2 to this
Act, at all times since the tenancy was granted the interest of the landlord
under the tenancy has belonged to a person who, at the time he owned that
interest, occupied as his residence another dwelling-house which also formed
part of that building.
When the
tenancy was first granted, namely in July 1976, the interest of the landlord
under the tenancy did belong to Mrs Keen, who also occupied the lower part of
45 Park Road, so the condition was satisfied so long as Mrs Keen was alive. It
was also, it seemed to me, satisfied when Mr Beebe went into possession on July
2 1979, because on July 2 1979 the interest of the landlord belonged to him and
to nobody else. He had proved the will, so he had the legal estate, and he was
the sole beneficiary under the will. There is no question of any insolvency.
The one person to whom, in my judgment, the interest of Mrs Keen then belonged,
was Mr Beebe and no one else. But, of course, on the words of section 12(1)(c)
there was a time during which the interest of the landlord under the tenancy
did not belong to a person who occupied part of 45 Park Road and that time was
between September 7 1978 when Mrs Keen died, and July 2 1979, a period of
nearly 10 months which elapsed before Mr Beebe himself moved into 45 Park Road;
so that unless Mr Beebe can bring himself within paragraph 1 of Schedule 2 he
is not entitled to possession.
I turn,
therefore, to Schedule 2 paragraph 1. That provides certain periods which are
to be disregarded for the purposes of section 12(1)(c). The question is whether
the period between September 7 1978 when Mrs Keen died and July 2 1979, when Mr
Beebe went into possession, is to be disregarded as a result of Schedule 2.
The relevant
period of disregard is (c) which is as follows:
(c) any period of not more than 12 months
beginning with the date on which the interest of the landlord under the tenancy
becomes, and during which it remains, vested–
(i) in the personal representatives of a deceased
person acting in that capacity;
The period with
which we are dealing is the 10-month period beginning with the death of Mrs
Keen and the entry into
landlord was vested in Mr Beebe as personal representative of Mrs Keen, and
therefore it seems to me that is a period which we must disregard. We have to
strike it out of the calendar and therefore we strike out the one period which
does not fall squarely within section 12(1)(c) and on striking that period out
it is true to say that this is a tenancy which is not protected because there
has been a resident landlord, or landlords, throughout the tenancy.
Mr Watkinson
says that because there was no written assent this property remains vested in
Mr Beebe as personal representative and the period of sanctity granted by the
relevant provisions of Schedule 2 is limited to 12 months and those 12 months
expired. Therefore, he says, Mr Beebe can no longer claim the protection of
paragraph 1; but looking at the language of section 12(1)(c) there is no need
to rely on Schedule 2 during any time when the interest of the landlord
belonged to Mr Beebe and he occupied the property. One is only driven to
Schedule 2 if either the interest of the landlord did not belong to Mr Beebe or
he was not in occupation.
In the
circumstances of this case, and I stress that we are dealing with a case where
the executor was absolutely entitled to the property in question, it seems to
me that both before and after any assent the property belonged to Mr Beebe, and
that once he went into occupation he satisfied the requirements of 12(1)(c) and
therefore only relies on the Schedule for that period during which he was not
in occupation. That period was not more than 12 months. During that period the
property was vested in him as personal representative of Mrs Keen and therefore
that period must be ignored.
Mr Watkinson
referred us to a statement in Megarry’s Law of Real Property, 4th ed, p
539 and to several cases which establish that in the case of an unadministered
estate a beneficiary under a will cannot gain any equitable interest in the
property, and that the property belongs to the personal representative until he
makes an assent. One can perceive of different circumstances in which one would
have to look again at the section and at the Schedule to see what the results
are, but in the present case, where the facts are simple, it seems to me that
there are no grounds for saying that when Mr Beebe was in occupation the
interest of Mrs Keen did not belong to him and that the only period which he
must invite the court, or require the court, to disregard is the period of 10
months during which he was not in residence and to which subparagraph (c)
paragraph 1 of Schedule 2, in my judgment, plainly applies. Accordingly it
seems to me that on the true construction of section 12 and Schedule 2 there is
no answer to the claim for possession, that Mrs Mason’s tenancy never was a
protected tenancy provided one ignores, as one must, that period of 10 months
during which the interest of the landlord was vested in a personal
representative who was not in possession. For these reasons I come to the same
conclusions as the learned judge and I would dismiss the appeal.
BRIDGE LJ
agreed.
Also agreeing
STEPHENSON LJ said: Mr Watkinson has not persuaded me that by not availing
himself of the power he has under section 36 of the Administration of Estates
Act 1925 the plaintiff has broken the duty imposed on him by section 25(a) of
that Act, as substituted by section 9 of the Administration of Estates Act
1971, and thereby failed to satisfy the requirements of section 12(1)(c) of the
Rent Act 1977. For the reasons given by Templeman LJ he seems to me to have
satisfied those requirements and I therefore agree that the appeal should be
dismissed.
The appeal
was dismissed with costs limited to £272 and legal aid taxation was ordered.
