Chelsea Estates, Ltd v Kadri

Possession — Breach of user covenant by multiple occupation — Plaintiffs held to have acquiesced — Premises probably divided since 1920 — Evidence of doorbells, etc — Judgment for defendant This was a claim by Chelsea Estates, Ltd, of 29, Battersea Bridge Road, London, SW11, against Mr Sibghat Ullah Kadri, of 14, Mexfield Road, London, SW15, for possession of 106, Edith Grove, London, SW10, alternatively damages, on the ground of breach of a covenant as to user. Mr M Essayan (instructed by Messrs G Howard & Co) |page:1357| appeared for the plaintiffs, and Mr PAW Merriton (instructed by Mr AN Mackesy) represented the defendant. Giving judgment, GOFF, J, said that the defendant was the assignee of a lease dated December 16, 1881, for 99 years from December 25, 1878, at a yearly ground rent of £7 10s. By the terms of the lease the lessee covenanted that the messuage, dwelling-house and premises should be used and occupied as a private dwelling-house only. The plaintiffs alleged a breach of that covenant, and this was the only ground on which they relied in the present action. The position was that the premises were let off in four separate suites, one on each floor. One of the suites had been converted by partitioning, but there was no evidence at the moment that it was let off to more than one tenant. It was conceded that these facts constituted a breach of the covenant in question, but the defendant pleaded acquiescence. The first inspection of the premises by the plaintiffs about which there was any evidence took place on September 24, 1963. Mr Johnson, a director of the plaintiffs, gave evidence and said that he had no knowledge before then that the premises were in any kind of multiple occupation. That in fact turned out to be wrong, because for some time in 1962 the plantiffs had been in negotiation with a view to buying up the lease, and in the course of that treaty they were informed by the defendant of the rents which he was obtaining from the premises, from which the multiple occupation became apparent. In his (Goff, J’s) judgment, moreover, it must have been apparent that ever since 1920 the premises had been let off in four separate lettings on four different floors. There was evidence that it was obvious from the doorbells and curtains that premises in the district, and in this road in particular, were in multiple occupation. On behalf of the plaintiffs it was submitted that there was only evidence of such facts as might have put the plaintiffs on inquiry, and no evidence of actual knowledge, which, it was submitted, was essential; and reliance was placed on Matthews v Smallwood, [1910] 1 Ch 777. That case, however, was dealing with a single act of waiver of a once-and-for-all breach, and not with acquiescence in a continuing breach. He (his Lordship) considered that the principle applicable to the present case was that of Hepworth v Pickles, [1900] 1 Ch 108. That was founded on the earlier cases of Gibson v Doeg (1857), 2 H&N 615, and In Re Summerson, originally unreported but later appended as a note to Hepworth v Pickles. In both those cases there was a finding of knowledge in fact, but in Hepworth’s case there was not, and Farwell, J, said at p110, after citing the two cases: ‘If I find a wrong course of usage such as in the present case for 24 years which is wholly inconsistent with the continuance of the covenant relied upon, the court infers some legal proceeding which has put an end to the covenant in order to show that the usage has been, and is now, lawful and not wrongful.’ That case was distinguished in Lloyds Bank, Ltd, v Jones, [1955] 2 QB 298, where a landlord was held not precluded by past acquiescence in lesser breaches from objecting to the position which later obtained. But in the present case, there seemed a very long course of usage, going back something like 50 years, which was inconsistent with the application of the covenant. Mr Johnson had been the manager of the plaintiffs’ estate department since 1952, and latterly a junior director. It was difficult to think he could have failed to realise that this property was in multiple occupation. He (his Lordship) would therefore hold that the defence of acquiescence succeeded and dismiss the action. However, he did not think he had to find, or ought to find, some irregularity which would wholly destroy the covenant, and there was nothing in the present decisions to prevent an action being brought in respect of any other multiple user, should it occur. One of the flats which became vacant when the property was sold to the defendant had had erected in it a partition, either by the defendant or by his vendor. He (Goff, J) thought it ought to be removed, but felt some slight difficulty about it because the plaintiffs had not relied upon it in their pleading and the defendant before the court, having assigned the lease, might not be in a position to procure its removal. He would accordingly dismiss the action on the terms that the partition was to be removed within three months, and give liberty to apply in the event of that condition not being complied with. The plaintiffs would pay the defendant’s costs, except that the defendant would pay any costs thrown away by the adjournment of the proceedings at an earlier date.