Leasehold Reform Act 1967 — Whether a lease created a ‘long tenancy’ within the meaning of section 3(1) of the Act — Lease (actually a subunderlease) granted by a housing association for nearly 94 years ‘or until this lease shall cease . . . to be vested in a member of the association’ — Lease assigned to the respondent, a member of the association — Covenant in lease prohibited assignment to anyone other than a member of the association — Respondent could, under the association’s rules, cease to be a member in certain events, such as expulsion or assignment of lease to a non-member — Respondent claimed a right to acquire the freehold, which was vested in the appellants, Eton College, under the 1967 Act — College disputed this claim and issued a summons to have the matter determined — Whitford J decided in favour of the respondent’s claim and the college appealed, contending that the tenancy was not a ‘long tenancy’ within the Act because of the cesser provision — Consideration of definition of ‘long tenancy’ as a tenancy granted for a term certain exceeding 21 years ‘whether or not the tenancy is (or may become) terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture or otherwise’ — Held that the tenancy was a ‘long tenancy’ — The word ‘terminable’ could be construed transitively or intransitively and in the present case it bore the intransitive meaning of coming to an end ‘otherwise’, within the meaning of section 3(1) — Freeholders’ appeal dismissed
This was an appeal
by Eton College, the freeholders of a property at 29 Fellows Road, London NW3,
part of the Chalcots Estate, from a decision of Whitford J, holding, inter
alia, that a subunderlease granted by Eton Housing Association Ltd (which
had no connection with the college) was a ‘long tenancy’ within section 3(1) of
the Leasehold Reform Act 1967 and thus satisfied one of the conditions for
leasehold enfranchisement. The respondents were Mrs Shoshana Bard and Peter St
John Hevey Langan QC. The lessee’s interest under the subunderlease had vested,
either solely or jointly, in Mr Langan, who had served notice claiming a right
to acquire the freehold.
Julian Byng
(instructed by Peake & Co) appeared on behalf of the appellants; the first
respondent, Mrs Bard, did not appear and was not represented; the second
respondent, Mr Langan, appeared in person.
Giving
judgment, SLADE LJ said: This is an appeal by Eton College from part of a
judgment of Whitford J given on October 12 1981. It raises the question whether
a lease dated November 17 1969 and relating to a property known as 29 Fellows
Road, London NW3 (‘the property’), is a ‘long tenancy’ within the meaning of
section 3(1) of the Leasehold Reform Act 1967. Part I of that Act has the
effect of conferring on the tenant of a leasehold house, occupying the house as
his residence, a right to acquire the freehold of the premises, where certain
conditions are fulfilled. Among other conditions, the tenant for this purpose
has to show that his tenancy is a ‘long tenancy’, as defined by section 3(1),
and that it is at a ‘low rent’, as defined by section 4(1).
The lease in
question (‘the lease’) was granted by Eton Housing Association Ltd as
subunderlessor to Mr J R McCarthy as subunderlessee. The freehold of the
property is vested in Eton College, which is the plaintiff in the proceedings.
According to the evidence there is no connection between the plaintiff and Eton
Housing Association Ltd, notwithstanding the name of the association.
Since
September 25 1974 the interest of the lessee under the lease has been vested,
either jointly or solely, in Mr Peter Langan QC. He is the second defendant in
the proceedings and on this occasion we have had the pleasure of hearing him
appearing in person. The first defendant is a Mrs Bard. She has taken no part
in the proceedings in this court or the court below.
On August 29
1980 Mr Langan served notice of a claim to acquire the freehold of the property
under the Act of 1967. The plaintiff disputed this claim and on January 22 1981
issued a summons to have determined two questions, namely (a) whether the lease
is ‘a long tenancy’ within the meaning of section 3(1) of that Act; (b) if the
answer to question (a) is in the affirmative, whether the lease is a tenancy
‘at a low rent’ within the meaning of section 4(1).
Whitford J
answered question (a) in the affirmative but question (b) in the negative. The
effect of his decision was thus to leave Mr Langan with no immediate right to
acquire the freehold. Nevertheless, Mr Langan does not seek to challenge the
judge’s decision on question (b) because certain subsequent events, which need
not be related, have now occurred; and he-considers that they may or will
enable him to assert that, notwithstanding that decision, his tenancy has
become one ‘at a low rent’ in the relevant sense. Question (a), on which the
plaintiff seeks to challenge the judge’s decision, is thus the only issue
before this court.
The summons is
supported by an affidavit sworn by Mr Lockhart, a partner in the firm of the
plaintiff’s solicitors. There is exhibited to this affidavit a full statement
of facts which had been agreed between him and Mr Langan. I need not refer to
many of these facts. The property forms part of an estate known as the Chalcots
Estate at Hampstead of which the freehold has been vested in the plaintiff for
over 400 years. By a lease dated January 4 1965 (‘the head lease’), the
plaintiff demised a part of the estate, which included the land on which the
property is situated and is referred to in the statement of facts as ‘the
Housing Association Area’, to the Metropolitan Borough of Hampstead for 99
years from September 29 1964. Following the enactment of the London Government
Act 1963, the head lease became vested in the London Borough of Camden, which,
by an underlease of December 20 1967, demised the Housing Association Area to
the association for 97 1/4 years less 10 days from June 24 1966.
On November 17
1969 the association granted to Mr McCarthy the lease of the property which is
in issue in the present case. The habendum clause to the lease (clause 1) began
with the following words:
In
consideration of the rents and the Members covenants hereinafter reserved and
contained The Association DEMISES unto the Member the premises (including the
rights demised therewith) described in the First Schedule hereto (hereinafter
called ‘the Unit’) with the exceptions and reservations specified in the Second
Schedule hereto TO HOLD the premises from the 17th day of November One thousand
nine hundred and sixty-nine until the Twenty-fourth day of June Two thousand
and sixty-three or until this Lease shall cease (otherwise than by death or
bankruptcy) to be vested in a Member of the
determination hereinafter contained YIELDING AND PAYING therefor during the
said term . . .
Clause 1 of
the lease then set out a number of provisions in regard to the payment of rent
and additional rent. I need not refer to them or to any other provisions of the
lease save, perhaps, to the covenants in clauses 2(9) and 2(10), which permit
the lessee to assign the lease of the whole property to a member of the
association, but otherwise preclude him from assigning, subletting or parting
with possession of all or any part of the property.
The effect of
the provisions of the lease to which I have referred is to oblige a person to
become a member of the association before he can become qualified to take an
assignment of the lease. Mr Langan became a member of the association shortly
before September 25 1974 and has remained a member ever since.
Mr Lockhart’s
affidavit exhibited a copy of the rules of the association. They have, I
understand, since been amended in manner set out in paragraph 8 of the
statement of facts, but it is common ground that these amendments are not
material to the legal issue now before the court; the rules in force at the
date of the lease are the relevant ones. I do not find it necessary to make
more than a passing reference to the contents of these rules. It suffices to
say that rule 12 provided for the cessation of a member’s membership of the
association in a number of contingencies and rule 15 gave the other members
certain express rights to expel a member for conduct ‘detrimental to the
interests of the Association’.
Having first
become a member of the association and then taken an assignment of the lease,
Mr Langan served the notice of August 29 1980 which gave rise to the present
proceedings. I now turn to consider the legal position.
Section 3(1)
of the Act of 1967, so far as material for present purposes, states as follows:
In this Part
of this Act ‘long tenancy’ means, subject to the provisions of this section, a
tenancy granted for a term of years certain exceeding twenty-one years, whether
or not the tenancy is (or may become) terminable before the end of that term by
notice given by or to the tenant or by re-entry, forfeiture or otherwise, and
includes a tenancy for a term fixed by law under a grant with a covenant or
obligation for perpetual renewal unless it is a tenancy by sub-demise from one
which is not a long tenancy . . .
There then
follow certain provisos to the subsection to which I need not refer, since it
has not been suggested that they assist the determination of the question now
before the court.
The learned
judge dealt with this question succinctly in the following passage of his
judgment:
Certainly
this is, on the face of it, a tenancy granted for a term of years exceeding 21
years. But is it for a term of years certain exceeding 21 years? It is a lease which will cease if it becomes
vested in somebody who is not a member of the association. Mr Langan is of
course a member of the association. However improbable it may seem, it would
appear that, according to the rules of the association, he might be expelled
from the association. Although the requirement so far as he is concerned if he
were to desire to part with his interest is that he should only part with it to
a member of the association, he might, I suppose, purport not so to do. But the
words which I have read indicate that what one has to consider when one is considering
whether one is dealing with a long tenancy is whether it is granted for a term
of years certain exceeding 21 years whether or not the tenancy is or may become
terminable before the end of that term by notice given by or to the tenant or
by re-entry, forfeiture or otherwise. This is, as I understand the terms of the
lease, a lease for a term of years certain exceeding 21 years which may become
terminable in certain circumstances, which I have already indicated. I think
for myself that, so far as Question 2(a) is concerned, which is whether or not
the relevant lease is upon its true construction a long tenancy within the
meaning of section 3(1), that question must be answered in the affirmative.
The first
ground upon which Mr Byng, for the plaintiff, attacks this part of the judgment
is that the term under the lease held by Mr Langan is not a ‘term of years
certain’ within the meaning of section 3(1) of the Act of 1967. In these
circumstances, in his submission, it is unnecessary to consider whether the
lease was one for a term ‘exceeding twenty-one years’ or whether the tenancy
was or might become ‘terminable’ in the manner mentioned in the subsection.
For the
purpose of this submission the crucial word is ‘certain’. The Act of 1967
contains no definition of this word, but Mr Byng submits that useful guidance
to its construction is to be found in section 205(1)(xxvii) of the Law of
Property Act 1925, which, for the purposes of that Act, defines ‘term of years
absolute’ as meaning:
a term of
years (taking effect either in possession or in reversion whether or not at a
rent) with or without impeachment for waste, subject or not to another legal
estate, and either certain or liable to determination by notice, re-entry,
operation of law, or by a provision for cesser on redemption, or in any other
event (other than the dropping of a life, or the determination of a
determinable life interest); but does not include any term of years
determinable with life or lives or with the cesser of a determinable life interest,
nor, if created after the commencement of this Act, a term of years which is
not expressed to take effect in possession within twenty-one years after the
creation thereof where required by this Act to take effect within that period;
and in this definition the expression ‘term of years’ includes a term for less
than a year, or for a year or years and a fraction of a year or from year to
year.
The wording of
this particular definition thus indicates a clear dichotomy between a term of
years which is ‘certain’ and one which is ‘liable to determination by notice,
re-entry, operation of law, or by a provision for cesser on redemption or in
any other event . . .’. A term of years which falls into the latter category
was clearly not regarded as ‘certain’ by the draftsman of the latter Act.
Mr Byng
submits by analogy that the habendum to the lease by its very words defines a
term of years of uncertain rather than certain duration, because it expressly
provides for the term to cease before June 24 2063 if the lease (otherwise than
by death or bankruptcy) ceases to be vested in a member of the association. He
points out that having regard to rules 12 and 15 of the association’s rules, as
they subsisted at the grant of the lease, there were a number of contingencies
in which the lessee could thereafter cease to be a member of the association.
In these circumstances, he submits that Mr Langan cannot say that he has a
‘tenancy granted for a term of years certain exceeding twenty-one years’, that
Mr Langan thus fails at this first hurdle, and that it is unnecessary to
consider the remaining words of the subsection.
This
submission, though attractive in its simplicity, is not in my judgment well
founded. No doubt, if the phrase ‘for a term of years certain exceeding twenty-one
years’ stood alone in the subsection, there would be much to be said for the
view that a tenancy could not qualify unless the term must of necessity last
for more than 21 years. In my opinion, however, one cannot properly attempt to
construe and apply this phrase in isolation from the second limb of the
definition (beginning with the words ‘whether or not . . .’) which immediately
follows and qualifies it. In my opinion, it is obvious that the purpose which
the legislature intended to achieve by the addition of the second limb was to
make it clear that a term which would otherwise qualify as a ‘term of
years certain exceeding twenty-one years’ shall not fail to qualify merely
because the tenancy is or may become terminable before the end of that term in
the manner mentioned. Thus, in my opinion, the legislature in section 3(1) was
attributing to the phrase ‘term of years certain’ a sense quite different from
the sense in which it was used in section 205(1)(xxvii) of the Law of Property
Act 1925.
In the present
case, Mr Langan points out that, but for the provision in the habendum to the
lease which brings the term to an end if it ceases to be vested in a member of
the association (otherwise than by death or bankruptcy), the term would
indisputably be a term of years certain exceeding 21 years enduring until June
24 2063. He submits that the only effect of the last-mentioned provision is to
render the tenancy ‘terminable before the end of that term . . . otherwise’,
within the meaning of the subsection. In these circumstances he submits that,
having regard to the second limb of the subsection, this provision does not
cause his term to fail to qualify as a ‘term of years certain exceeding
twenty-one years’.
In my judgment
this submission is well founded. Mr Byng sought to counter it, first, by
submitting that the word ‘terminable’ in section 3(1) of the Act of 1967 means
no more than ‘capable of being terminated by the act of one or more of the
parties to the lease or their successors in title’. In this context he invoked
one of the alternative definitions of the word ‘terminable’ to be found in the Shorter
Oxford English Dictionary: ‘Capable of being or liable to be terminated.’
He cited Orman
Brothers Ltd v Greenbaum [1954] 3 All ER 731 in which Devlin J at p
732 had to construe the word ‘terminated’ in section 24(1) of the Landlord and
Tenant Act 1954 (which provides that a tenancy to which Part II of that Act
applies shall not come to an end unless ‘terminated in accordance with this
Part of this Act’) and construed it as referring to the instrument or act which
was the terminating factor and not to the effluxion of time. That was, however,
a decision on the particular wording of a subsection which, as Devlin J pointed
out, appeared to draw a distinction between a tenancy ‘coming to an end’ and a
tenancy being ‘terminated’. I therefore find the decision of little assistance
in the present case. Nor
‘terminable’. The same dictionary shows that the word ‘terminate’ is capable of
bearing a transitive or intransitive meaning, according to the context. The
word ‘terminable’ in my opinion can likewise bear a transitive or intransitive
meaning (or both meanings at once) according to the context. It is interesting
to note that the word ‘determination’ clearly bears both a transitive and an
intransitive sense in section 205(1)(xxvii) of the Law of Property Act 1925.
For these
reasons, I cannot accept that the word ‘terminable’ in section 3(1), when read
in isolation, prima facie bears the exclusively transitive sense
attributed to it by Mr Byng. To discover its proper meaning in its context, one
has in my opinion to study the immediately succeeding words of the subsection.
Mr Byng
proceeded to submit that, in these succeeding words, the phrase ‘or otherwise’
must be construed ejusdem generis with re-entry and forfeiture and is
not apt to include the mere happening of an event (as opposed to the act of an
interested party) upon which the lease is limited to determine.
He submitted
that the common characteristic possessed by re-entry and forfeiture, which
constitutes them a ‘genus’, is that each involves an act by one or more of the
parties to the relevant lease or their respective successors in title, which
has the effect of ending the lease.
I was
initially attracted by this submission but am not in the end convinced by it.
If re-entry and forfeiture can properly be said to constitute a ‘genus’ at all,
then that genus can in my opinion only comprise acts of the landlord
which bring the lease to an end; acts of the tenant which have this effect are
of an essentially different category. It is, however, difficult to think of
acts of the landlord which could bring the lease to an end without involving a
re-entry or forfeiture. In these circumstances, it seems to me that the words
‘or otherwise’ must have been intended to refer to acts or events other than
acts by the landlord, which would have the effect of bringing the lease to an
end before the expiration of the maximum stated duration of the term.
Accordingly the words ‘or otherwise’ are in my opinion apt to include, and do
include, the happening of any event upon which the lease is limited to
determine before such expiration.
This
conclusion is I think fortified when one considers the probable intentions of
the legislature. Let it be supposed that the habendum to the lease in the
present case had been drafted so as to express the term as one enduring until
June 24 2063 (simpliciter), but the lease had then contained a covenant by the
lessee to the effect that the benefit of the lease should at all times remain
vested in a member of the association, and had given the lessors an express
right of re-entry if this covenant were broken. On these hypothetical facts,
the rights of the lessee against the lessors (statute apart) would for
practical purposes have been the same as they are now; yet I would have thought
it clear almost beyond argument that the tenancy would have constituted a ‘long
tenancy’ within the relevant statutory definition. It hardly seems likely to
have been the intention of the legislature that the substantive rights of the
tenant should be drastically affected by drafting points of this nature.
Anomalies of
this kind are avoided if one attributes to the word ‘terminable’ in the context
of section 3(1) a both transitive and intransitive sense, which I think it is
well capable of bearing, and to the word ‘otherwise’ a sense wide enough to
include the happening of an event upon which the lease is limited to determine,
before the expiration of the maximum stated duration of its term, which again I
think the word is well capable of bearing.
If, as I
think, this is the correct meaning to attribute to the succeeding words which
qualify the phrase ‘term of years certain exceeding twenty-one years’, it may
fairly be asked: What is the force of the word ‘certain’ in that phrase? On this footing, is not the word ‘certain’
otiose? I accept that this construction
of the succeeding words does involve attributing to the phrase something other
than its natural meaning, which is I conceive a fixed term that must of
necessity last longer than 21 years. Nevertheless I think that the
draftsman of the subsection has made plain his intention that the phrase should
bear a somewhat artificial sense, extended beyond its natural meaning, just as
the draftsman of section 205(1)(xxvii) made clear his intention that the phrase
‘term of years absolute’ might include a tenancy which was neither a ‘term of
years’ nor ‘absolute’, according to the ordinary meaning of words (for example,
a monthly tenancy liable to forfeiture on non-payment of rent). In my judgment,
the word ‘certain’ need not be regarded as otiose, even if the definition of a
‘long tenancy’ in section 3(1) of the Act of 1967 is capable of including a
lease such as that in the present case. For the word serves to make it plain
that a tenancy will not fall within this definition unless a fixed maximum
duration of the term has been specified.
It thus makes
it clear that a tenancy from year to year is not included within the
definition, even though it is well capable of lasting for more than 21 years
and is a ‘term of years absolute’, within the definition of that phrase already
cited. Furthermore, the word ‘certain’ makes it clear that, in calculating the
length of the term for which a tenancy has been granted, for the purposes of
subsection (1) of section 3 an option to take a tenancy for a further term is
to be disregarded; subsection (4) contains special provisions covering
tenancies granted with a covenant or obligation for renewal. The word ‘certain’
thus does still serve a purpose.
Mr Byng
referred to Roberts v Church Commissioners for England [1972] 1
QB 278 where Russell LJ (at p 284) suggested a test for determining whether a
tenant can bring himself within the statutory definition:
. . . to
fulfil the definition a tenant must at some point of time be or have been, in a
position to say that, subject to options to determine rights of re-entry and so
forth, he is entitled to remain tenant for the next 21 years . . .
Mr Langan is,
in my opinion, in a position to say that, subject to a premature termination of
the term occurring through his ceasing to be a member of the association or
purporting to assign it to a person who is not a member or through other events
entitling the lessors to forfeit the lease, he is entitled to remain tenant for
more than the next 21 years. This in my judgment suffices to bring his tenancy
within section 3(1).
For these
reasons I think that the learned judge reached the correct conclusion on
question (a) raised by the summons and I would dismiss this appeal.
Agreeing,
OLIVER LJ said: This appeal raises a short but interesting point on the
construction of section 3(1) of the Leasehold Reform Act 1967, an Act which is
described in its long title as one ‘to enable tenants of houses held on long
leases at low rents to acquire the freehold or an extended lease’. Section 1(1)
confers the right to acquire the freehold or an extended lease upon a tenant of
a leasehold house which he occupies as his residence where (inter alia)
‘his tenancy is a long tenancy at a low rent’. ‘Long tenancy’ is defined by
section 3(1) as
a tenancy
granted for a term of years certain exceeding twenty-one years, whether or not
the tenancy is (or may become) terminable before the end of that term by notice
given by or to the tenant or by re-entry, forfeiture or otherwise . . .
The three
critical words of this definition in the context of the instant case are
‘certain’, ‘terminable’ and ‘otherwise’.
I need not
repeat the facts which have already been set out in the judgment of Slade LJ.
As he there mentions, the habendum of the relevant lease is, so far as
material, in these terms:
To hold the
premises from the 17th day of November One thousand nine hundred and sixty-nine
until the twenty-fourth day of June Two thousand and sixty-three or until this
Lease shall cease (otherwise than by death or bankruptcy) to be vested in a
Member of the Association (whichever shall be the earlier) . . .
There is a
covenant in the subunderlease prohibiting assignment to anyone other than a
member of the association and the document includes the usual proviso for
re-entry on breach of covenant. The only other relevant document for present
purposes consists of the rules of the association in force at the date of the
grant of the subunderlease. Rule 10 requires a member on being notified by the
committee of the association within one month to enter into an agreement in
respect of a house and rule 11 enables a member before being required to enter
into such agreement to withdraw from the association on giving three months’
notice.
The
circumstances in which a member may cease to be a member are dealt with in rule
12 and are
(i) failing to enter into an agreement when
required under rule 10
(ii) failing to subscribe and pay for loan stock
in accordance with rule 18
(iii) withdrawal under rule 11
(iv) expulsion under rule 15
(v) determination of the agreement entered into
under rule 10
(vi) death
(vii) cessation of membership of a joint member
The provisions
of rule 18 require loan stock to be taken up before entering into an agreement
and the non-assignment clause in the subunderlease provides for assignment of
any loan stock vested in the assigning member to the assignee member.
Rule 15 is
concerned with expulsion, which is effected by resolution in general meeting
and effectively is limited to expulsion for conduct detrimental to the
interests of the association.
Relating these
rules to the habendum, effectively the only circumstances in which the term can
come to an end prematurely are expulsion and, possibly, purported assignment to
a non-member. Death and bankruptcy are expressly excluded as relevant and cessation
of membership by determination of agreement involves the lease having been
brought to an end in any event, it being (see recital C) an agreement within
the meaning of the rules.
The other
grounds for cessation of membership in rule 12 are grounds which, relating as
they do to events leading up to the grant of a lease, must have ceased to be
applicable once the lease has been granted.
Mr Byng’s
primary submission on behalf of the appellants is that a term of X years or so
long as the lease remains vested in a member of the association whichever is
the shorter is not a term of years ‘certain’ within the meaning of section 3(1)
of the Act.
He points out
that in section 205(1)(xxvii) of the Law of Property Act 1925, which defines a
term of years absolute, a distinction is drawn between a term of years
‘certain’ and a term of years ‘liable to determination by notice etc’. But, as
Mr Langan points out, that subsection is concerned with the definition of what
is a term of years absolute (ie a legal estate under the Act). Mr Byng has
drawn our attention to the following passage from the judgment of Russell LJ
(as he then was) in Roberts v Church Commissioners [1972] 1 QB at
p 284:
In the course
of the argument I ventured to suggest a test, which is that to fulfil the
definition a tenant must at some point of time be, or have been, in a position
to say that, subject to options to determine, rights of re-entry and so forth,
he is entitled to remain tenant for the next 21 years, whether at law or in
equity.
Speaking for
myself, however, I do not derive much guidance from this in the very different
context of the instant case, for it begs the question that has to be decided
here in the qualification ‘subject to options to determine, rights of re-entry
and so forth’. In effect, as it seems to me, the lease creates a term of years
determinable on failure of a condition, namely, that it shall remain vested in
a member of the association, and Mr Byng’s construction would, as it seems to
me, lead to the conclusion not merely that there was no term certain but that
the lease did not even create a legal estate (see Lace v Chantler
[1944] KB 368).
Mr Byng’s
argument, if valid at all, must in any event rest on the proposition that a
term of years determinable before the expiration of the time for which it is
limited is ‘certain’ within the meaning of the subsection only if its
termination can be brought about in certain limited ways, which he broadly
defines as ‘acts of the parties’. Thus, the argument runs, ‘terminable’ is used
in the sense not of ‘liable to come to an end’ but in the sense of ‘liable to
be terminated’ and the section goes on to exemplify ways in which this may
occur — notice, re-entry or forfeiture.
Now it is true
that these methods of termination are all acts which are in the control of one
or other party to the lease and from this Mr Byng seeks to deduce two
consequences, which are in fact interrelated. The first is the construction
mentioned above which he attributes to the word ‘terminable’ and the second,
which really follows from the first, is that the word ‘otherwise’ falls to be
construed ejusdem generis with what has gone before — the genus being,
as he contends, an act of one or other party to the lease and not an event
limited by the lease itself as one upon which the term will determine. I find
myself unimpressed by either of these points. ‘Terminable’, as it seems to me,
is a word which is equally applicable to a liability to be determined as to a
liability to terminate or come to an end. Nor do I find it easy to ascribe any
identifiable genus to notice, re-entry or forfeiture. If, indeed, one has to
look for an act of a party to the lease, one in fact finds it, as Mr Langan has
pointed out. An assignment to a non-member can only be at the instance of the
tenant himself, and expulsion can be effected only by the association. Mr Byng
meets the latter point by suggesting the possibility of the association
assigning the leasehold reversion and thus ceasing to be the landlord. I am
unimpressed by this. ‘The association’ is defined by the lease as including the
successors in title not to ‘the landlord’ but to the association and the clear
contemplation, as it seems to me, is that the reversion is to remain vested in
some body that is a housing association and that the subunderlease will remain
vested in that body.
Despite Mr
Byng’s clear and able argument, I remain unconvinced that the learned judge
came to the wrong conclusion. For the reasons given above and for those stated
in the judgment of Slade LJ I agree that the appeal should be dismissed.
The appeal
was dismissed. No order was made as to costs. Leave to appeal to the House of
Lords was refused.
