Lessee allegedly allowing houses to deteriorate – Whether action lying for permissive waste
The claimant let three dwellings, on identical three-year leases to the defendant local authority, to enable the defendants to use the properties to house homeless people. On expiry of the leases, a dispute arose as to whether the defendants were liable, contractually or otherwise, for allegedly allowing the properties to deteriorate. A preliminary issue was whether the tenants, being tenants for a fixed term (tenants for years), could be made liable for permissive waste under the provisions of the Statute of Marlborough 1267.
In support of his contention that such an action could lie, the claimant relied primarily on the decision of the Court of Exchequer in Yellowly v Gower (1855) 11 Ex 274, as applied by Kekewich J in Davies v Davies (1888) 38 ChD 499. The defendants, adopting an argument advanced in Woodfall on Landlord and Tenant, release 41 at para 13.124, contended that those decisions had proceeded on a misreading of the Statute, which was couched solely in terms of positive acts of (voluntary) waste. The judge, resorting to materials additional to those relied upon by counsel, re-examined, inter alia, the authorities as they stood before the decision in Yellowly.
Held: Judgment for the claimant.
The decisions relied on by the claimant derived considerable support, not only from the writings of Littleton (1475), Coke (1628) and Blackstone (1774), but also from a line of cases going back to the end of the 13th century (translations prepared for the judge by Dr Paul Brand, of All Souls College, Oxford), none of which cast doubt on the proposition advanced by the claimant. Although there was considerable force in the criticism made by Woodfall, the court, in seeking to construe very old statutes, was bound to pay great regard to the construction that had been put upon them by judges who lived at or soon after the time of enactment, that had subsequently been accepted over a long course of years, unless it could say positively that such a construction was wrong and productive of inconvenience: see per Lord Atkinson in Lord Advocate v Walker Trustees [1912] AC 95 at p102; per Lord Buckmaster in Bourne v Keane [1919] AC 815 at p874; and per Lord Upjohn in Campbell College, Belfast v Commissioner of Valuation for Northern Ireland [1964] 1 WLR 912 at p941.
Barry Denyer-Green (instructed by Courts & Co ) appeared for the claimant; Edwin Buckett (instructed by the solicitor to the council) appeared for the defendants.
Alan Cooklin, barrister
