Forfeiture–Three flats in Brewer Street, Soho, two of which were clearly used by prostitutes–No express covenant against immoral user–No ground for implying any such covenant–No breach established of covenant in general terms not to cause nuisance, annoyance etc to neighbours–Underlessee not on the facts of the case keeping a brothel–In any event, relief would have been granted–‘Doubtful whether the use of the flats had changed much in 20 years’
This was a
claim by Burfort Financial Investments Ltd, lessees of premises at 12 Brewer
Street, Soho, London W1, against the underlessee, Madame Franchette Chotard,
seeking forfeiture of her interest for breach of covenant, express or implied,
against use of the premises for the purposes of a brothel.
Mr D M Levy
(instructed by Clintons) appeared for the plaintiffs, and Mr W M Gage
(instructed by Alexander, Chart & Partners) represented the defendant.
Giving
judgment, FOSTER J said that Burfort were the registered holders of the
leasehold interest in 12 Brewer Street, comprising a ground-floor shop with
three flats above. The defendant was the registered underlessee, the shop being
vested by assignment in a Mr Holloway. The underlease contained no fewer than
26 covenants on the part of the underlessee, but there was no covenant against
user for illegal or immoral purposes. The only relevant covenant required the
underlessee not to do any act or thing which was or might become a nuisance,
danger, annoyance or inconvenience to neighbours. The freehold owners, Dysart
Properties Ltd, had the property inspected towards the end of 1975, and a
report of that inspection was passed to Burfort’s solicitors. As a result those
solicitors on December 22 1975 served notice on the defendant under section 146
of the Law of Property Act 1925. That notice claimed that it was an express or
implied term of the lease that the defendant would use the premises only for
moral purposes permitted by the lease, and that in breach of that term the
premises had been used for an immoral purpose, namely as a brothel. The writ in
the action, specially endorsed with the statement of claim, was issued on
January 2 1976, and the matter came before the vacation judge, Tudor Evans J,
on an ex parte motion on January 6 1976, when he made a temporary order
restraining the defendant from using or permitting the use of the three flats
as a brothel or for prostitution. On January 13 1976 the defendant gave an
undertaking in the same terms as the injunction, and that was later continued
until trial of the action. As a result of further information coming to Burfort
a motion was launched on March 15 1976 to commit the defendant to prison for
breach of her undertaking, and that motion was subsequently stood over to trial
of the action. The defendant denied Burfort’s allegations and counterclaimed
relief from forfeiture if she was in breach of any covenant.
He (his
Lordship) would begin by summarising the effect of the evidence given by
various witnesses. The ground floor of the property in question was used as a
sex shop under the name ‘Doc Johnson’s Love Shop.’ Outside the entrance door to the three flats
above there were three bells which could be illuminated. A notice by one bell
read ‘Yvonne, French model, first floor.’
The defendant lived on the first floor, and in one room of her flat two
cubicles had been formed, each containing a plain bentwood chair. There was a
notice in the hall downstairs reading ‘No Films Here’ and another one reading
‘Do Not Pay Money on the Stairs.’ On a
visit by Mr Gerald Milner, chartered surveyor, with Mr John Mottram, partner in
a firm of architects, to the flat on December 4 1975, they met the defendant on
the first floor and were told by her that there was a young lady on the second
floor resting. They went to the third-floor flat first and found a bedroom
which contained, among other things, a long mirror 4 ft from the floor
extending the length of the bed. Mr Milner said that there was a notice which
read ‘Please Adjust your Dress before Leaving.’
On top of the wardrobe he saw a thin cane about 2 ft 6 in long. There
was also a coloured poster of a naked young woman striding through water. They
then went to the first-floor flat and saw the two cubicles. Mr Milner opened
one cubicle and saw a man standing there. He said that the defendant said, ‘He
is just waiting to see the girl.’ They
next visited the second floor, and saw there a girl in a dressing-gown who
looked extremely fatigued. The defendant and the girl spoke in French. The
defendant, who was French, said that the girl was her daughter who had just
arrived from the Continent. Generally, Mr Milner said that the property was in
the centre of Soho, which had always had a bad reputation; that prior to 1959
there were many prostitutes in the streets; that there was another sex shop in
Brewer Street, two cinemas showing erotic films and a strip club, all quite
close.
He (his
Lordship) accepted the evidence of Mr Mottram and Mr Milner. Mr John Cranston
and Mr Trevor Morris, both inquiry agents, visited the property on January 2
1976. Mr Cranston said that the door to the first-floor flat was opened by an
elderly woman and he asked, ‘How much?’
She said £5. He then asked, ‘What do I get for that?’ She said, ‘A short time.’ He declined and left. The lady was not the
defendant. Mr Cranston next visited the property on March 11 1976, when he met
the defendant. In his affidavit in the committal proceedings he said that he
saw a man being admitted as he approached. He rang the bell and asked for
Yvonne. He was later shown into a room with a mirror above the bed, and a woman
aged about 40 to 45 said ‘Bon jour, mon cheri, nice to see you.’ He produced £10, but said he had better get
off to his wife and left. He paid a further visit to the property on March 12
and met the same lady. Having got no reply from the second- or third-floor
flats, he asked her if the girl was still in the third-floor flat, and she
said, ‘No, all finished now.’ Mr Morris,
on his first visit on January 2 1976, went to the second floor, where there was
a notice leading to the third floor saying ‘Valerie, French model.’ He got no reply from the bell to that flat
nor from the second-floor flat. He revisited the property on March 11 and spoke
of paying £10 to a woman who took off her dress. He made a suitable excuse and
left. He said that the woman he met on that occasion was the defendant. He paid
a third visit on March 12 and rang the bell of the first-floor flat, and it was
answered by a foreign-looking woman whom he had not seen before. He asked if
Valerie was still upstairs, and she said, ‘No, it is all closed down upstairs
now.’ He then left.
The defendant
flatly denied that there ever had been any visits on March 11 by the two
inquiry agents, and said that
hostess and model, which she had been for some time, and said that she acted as
such in the first-floor flat. She admitted in cross-examination that she was
known as ‘Yvonne’ and that she had a house-keeper or cleaner who did everything
for her. She said that she made the two cubicles in the room of the first-floor
flat, one for her dog and one for her cat. She said that she had let the
third-floor flat to a Mrs Valerie Wilson in December 1975, but rarely saw her
and never saw men visit her. She first heard of the proceedings against her
when she returned from a visit to France on January 11 and immediately asked
Mrs Wilson to pay the rent up to date and leave, which Mrs Wilson did. On the
whole of the evidence, he (his Lordship) was satisfied that the defendant had
been using the first-floor flat for prostitution even after her undertaking to
the court, and that Mrs Wilson had been doing the same in the third-floor flat.
But he could not conclude that the second-floor flat was also being used for
prostitution merely from the one instance of a fatigued young woman who might
have been the defendant’s daughter.
The questions
which accordingly arose for decision were (1) whether the defendant was in
breach of the express covenant not to cause a nuisance to her neighbours; (2)
if not, whether a covenant should be implied in the underlease that the
defendant should not use the premises for illegal or immoral purposes; (3)
whether the accusation, made in both the notice under the Law of Property Act
and the statement of claim, that the defendant was running a brothel on the
premises, had been substantiated; (4) whether, even if a covenant against
illegal or immoral purposes was to be implied, the plaintiffs were entitled, in
the events which had happened, to forfeit the underlease; (5) whether, if the
defendant was in breach of any covenant, whether express or implied, she should
be given relief from forfeiture; and (6) whether the defendant was in breach of
the undertaking given to the court and therefore in contempt. So far as the
first issue was concerned, there was not a shred of evidence before him (Foster
J) that the defendant had caused any nuisance. There was no evidence that she
ever solicited in the street and he failed to see how in such a neighbourhood
the fact that there were three illuminated bells and the street door might be
open could itself amount to a nuisance. In the case of Thompson-Schwab v
Costaki [1956] 1 WLR 335 there was clear evidence that the neighbours
were affected by the activities. In the absence of any such evidence, he (his
Lordship) concluded that the defendant was not in breach of the express
covenant.
It was next
submitted on behalf of the plaintiffs that the court should imply such a
covenant, and reliance was placed on rule 80 in Hill & Redman 16th
ed p 263, to the effect that a tenant could use demised premises for any
purposes not unlawful or immoral. The authority for this was the case of Girardy
v Richardson (1793) 1 Esp 13. But that case only decided that if a
lessor let premises to a tenant knowing that they were sought for use for an
immoral purpose the lease was of no effect. In this case there was no
suggestion that when the underlease was granted the lessor had any such
knowledge. The underlease in the present case had been carefully drafted and
contained no fewer than 26 covenants on behalf of the lessee. He (his Lordship)
had little doubt that if a lessor tried to insert a covenant against illegal or
immoral use in such an area as Brewer Street he would never be able to find a
tenant. Reference had been made to the speeches of the House of Lords in Liverpool
City Council v Irwin [1976] 2 All ER 39, the latest decision on the
implication of covenants. He (Foster J) could not see that such a covenant must
be implied. If it was to be implied in this lease then it had to be implied in
every lease, a proposition he found fanciful.
It was no
criminal offence for a woman to be a prostitute as long as she did not do it so
as to fall foul of the Sexual Offences Act 1956, which came into force on July
16 1956. This Act forced prostitutes off the street, but some had recently been
successfully prosecuted for appearing in the windows of their premises. There
was no suggestion of that in this case. It was, however, an offence under section
33 of the Sexual Offences Act 1956 to run a brothel, and it was on this that
both the notice under section 146 and the statement of claim were based.
Reference had been made to Gorman v Standen [1964] 1 QB 294, Durose
v Wilson (1907) 96 LT 645 and Strath v Foxon [1956] 1 QB
67. On the facts of the present case, he (his Lordship) thought that the third
floor was let to Mrs Wilson as a separate tenancy, and the evidence that the
second floor was once occupied by a tired girl came nowhere near proving that
the defendant was carrying on a brothel. He found as a fact that the defendant
was not using the premises for the purposes of a brothel. The section 146
notice was therefore bad, and the action failed for this reason alone.
On the
remaining issues, even if he (Foster J) had been disposed to imply a covenant
against user for illegal or immoral purposes, he very much doubted whether the
plaintiff company would have been entitled to forfeiture of the lease rather
than to an injunction to stop such user. The expression in the lease was ‘for
breach of the covenants herein contained,’ and he could not see how an implied
covenant could be ‘contained’ in the lease. Even if the defendant had been in
breach of a covenant in the lease, moreover, he would have granted her relief
from forfeiture. He doubted whether the use of the flats had changed much in 20
years. Finally, the defendant was in clear breach of her undertaking, though
there was no reason for her to give such an undertaking, particularly one in
such wide terms. Her contempt of court in breaching that undertaking could not
be overlooked, and he fined her £50 for such contempt. The action must be
dismissed.
