Landlord and tenant — Forfeiture — Alleged immoral user of basement premises used as sauna bath, gymnasium and health club — Ground floor and basement in building of six floors let to first defendants, a company running retail men’s clothing shops — Basement sublet to second and third defendants, persons carrying on the business of sauna bath etc — Covenants in both lease of ground floor and basement and sublease of basement against annoyance, inconvenience and nuisance and against illegal or immoral user — Direct covenant also between head lessors and sublessees to observe these covenants — Evidence of breaches of covenants by participation of some masseuses in immoral practices and by annoyance and nuisance to residential tenants by men calling at property — Evidence also that the second defendant knew that such practices were going on and that first defendants, after becoming aware of them, took no reasonable steps to prevent continuance — Head lessor entitled to judgment for possession against first defendants, subject to the question of relief — No relief possible for sublessees of basement against forfeiture — Primary object of head lessors to get sublessees out of basement — Whether to forfeit head lease in toto or to grant relief against forfeiture in respect of part only of the subject premises, namely, the ground floor — A ‘novel and interesting question’ — Dumpor’s case in ‘Coke’s Reports’ relied on — Relief granted to head lessors by restricting order for possession to basement — Award of damages against second and third defendants under direct covenant with head lessors
This was an
action for forfeiture brought by GMS Syndicate Ltd, the freehold owners of
premises at 125 Queensway, London W2, against the first defendants, Gary
Elliott Ltd (who run the ‘Lord John’ chain of men’s clothing shops), lessees of
the ground floor and basement of the premises, and the second and third
defendants, Napleandra Ruparel and his wife, Yvonne Ruparel, the sublessees of
the basement of the premises. The premises consisted of six floors, including
the basement, and there were residental tenants in occupation of the upper
floors. The second and third defendants were the proprietors, through a private
company, of the Queensway Health Club, which carried on the business of a sauna
bath, gymnasium and health club in the basement.
A G Bompas
(instructed by Collyer-Bristow) appeared on behalf of the plaintiffs (head
lessors); R C Pryor (instructed by Bennetts) represented the first defendants
(the lessees of the ground floor and basement); R J Moshi (instructed by
Portner & Jaskel) represented the second and third defendants (the
sublessees of the basement).
Giving
judgment, NOURSE J said: This is a forfeiture action based primarily on the
alleged immoral user of basement premises known as the Queensway Health Club at
125 Queensway, London W2. Those premises are used as a sauna bath, gymnasium
and health club. The plaintiff, GMS Syndicate Ltd, is the freehold owner of 125
Queensway. The first defendant, Gary Elliott Ltd, is the lessee of the ground
floor and basement. The second and third defendants, Napleandra Ruparel and his
wife, Yvonne Ruparel, are the sublessees of the basement and the proprietors,
through the medium of a private company, of the Queensway Health Club.
125 Queensway
is built on six floors including the basement. The upper floors are let to
residential tenants of the plaintiff. The tenants of the third and fourth
floors are Mr and Mrs Joseph Ralph, who have been there since 1946. Their
daughter, Miss Kathleen Ralph, was the tenant of the second-floor flat from
June 1968 until September 1977. The tenants of the first-floor flat are Mr and
Mrs Eric McGregor, who have been there since 1947.
By a lease
dated April 2 1969 the plaintiff demised to the first defendant the ground
floor and the basement for a term of 12 1/4 years from December 25 1968. That
term will expire on March 25 1981. Clause 3 of the lease contains covenants by
the first defendant in the following terms:
14. Not to do
or suffer or permit to be done or suffered on the premises anything which may
be or become an annoyance inconvenience or nuisance to the lessors or the other
owners or occupiers of any adjoining or neighbouring property or to the
neighbourhood or which may infringe any legislation for the time being in
force.
15. Not to
carry on or permit upon the premises or any part thereof any noisy or dangerous
trade business manufacture or occupation or any nuisance nor use the same or
allow the same to be used for any illegal or immoral purpose. . . .
The lease
contains a common form proviso for re-entry on non-payment of rent or on
failure or neglect by the first defendant to perform or observe any of the
covenants, conditions or agreements on its part therein contained.
The first
defendant runs a chain of retail men’s clothing shops under the name of ‘Lord
John’. By the end of 1969 the first defendant had made arrangements, with the
consent of the plaintiff, to sublet the basement to a Mr Silvalingham and a Mr
Roberts for use as a sauna bath, gymnasium and health club until September
1972, that being the period covered by a planning permission which had been
obtained for that use. Those arrangements were put into effect by an agreement
dated December 29 1969 and were continued after an extension of the planning
permission until June 30 1977 had been granted in August 1972. The continuation
was effected by a supplemental agreement dated January 30 1974 by which the
first defendant agreed to let, and Mr Silvalingham and Mr Roberts agreed to
take, the basement premises for a further term commencing on September 1 1972
and expiring on June 30 1977. That agreement incorporated (by reference to the
earlier agreement of December 29 1969) covenants on the part of Mr Silvalingham
and Mr Roberts in all respects identical to the covenants on the part of the
first defendant contained in clause 3(14) and (15) of the head lease to which I
have already referred.
By an
assignment dated December 23 1974 Mr Silvalingham and Mr Roberts assigned to
the second and third defendants, Mr and Mrs Ruparel, the benefit of the
agreement of January 30 1974. On the same day the plaintiff, the first
defendant, Mr Silvalingham and Mr Roberts and Mr and Mrs Ruparel had executed a
deed whereby, first, the plaintiff and the first defendant had granted their
consents to the assignment to Mr and Mrs Ruparel and, secondly, Mr and Mrs
Ruparel had covenanted with the first defendant, and as a separate covenant
with the plaintiff, that as from the date of the assignment ‘and thenceforth
during the residue of the term granted by the underlease as extended by the
supplemental tenancy agreement’ they would pay the rent thereby reserved and
observe and perform the covenants and conditions on the part of the sublessees
therein contained. There was therefore a direct covenant by Mr and Mrs Ruparel
with the plaintiff to observe and perform (among others), first, the covenant
against annoyance, inconvenience and so forth and, secondly, the covenant
against illegal or immoral user incorporated in the agreement of January 30
1974. One of the questions in these proceedings is whether that direct covenant
expired with the contractual term on June 30 1977 or whether it continues while
Mr and Mrs Ruparel hold over (as they now do) under Part II of the Landlord and
Tenant Act 1954. They have been able to do that because in September 1978 an
appeal by them against the Westminster City Council’s refusal to extend the
planning permission for the continued use of the basement as a sauna bath,
gymnasium and health club was allowed.
I have already
said that the plaintiff’s action is based primarily on the alleged immoral user
of the Queensway Health Club. I must now state that and the other alleged
causes of complaint in greater detail. First, the plaintiff alleges that since
in or about July 1978, Mr and Mrs Ruparel have allowed the basement to be used
for illegal and immoral purposes and in particular that they have employed as
masseuses on the premises women who for reward commit lewd and immoral
practices at the behest of customers of the business. Secondly, the plaintiff
alleges that the business carried on by Mr and Mrs Ruparel in the basement has
become an annoyance, inconvenience and nuisance to the plaintiff and the
occupiers of adjoin-
tenants at 125 Queensway), and the plaintiff says that the business has been so
conducted as to encourage persons to attend at the premises seeking women with
whom to perform lewd or immoral practices. The plaintiff says that Mr and Mrs
Ruparel have thereby brought the basement and the building as a whole into
disrepute and, further or alternatively, have caused persons seeking
disreputable services to attend at and loiter near the building so causing
nuisance and giving offence to the plaintiff and its residential tenants. The
plaintiff alleges that in these two respects Mr and Mrs Ruparel have been in
breach of the direct covenant with the plaintiff contained in the deed of
December 23 1974 and for that the plaintiff claims damages. However, its
principal claim is against the first defendant for forfeiture of the headlease
on the grounds that the first defendant also has allowed the basement to be
used for illegal and immoral purposes and that it has suffered or permitted a
business to be carried on in the basement which is an annoyance, inconvenience
or nuisance to the plaintiff and to the occupiers of the adjoining and
neighbouring property. In this connection, the plaintiff alleges that on or
before August 1 1978 the first defendant had become aware of the matters of
which the plaintiff complains in relation to the use of the basement but that
it has nevertheless failed and neglected to take any sufficient steps against
Mr and Mrs Ruparel. If the plaintiff succeeds in its claim for forfeiture of
the headlease then, subject to any question of relief, it will follow that Mr
and Mrs Ruparel’s subtenancy will be forfeited as well. I should at this stage
say that the plaintiff’s primary objective is to get Mr and Mrs Ruparel out of
the basement. If it succeeds in that, it will be less concerned with its claim
against them for breach of the direct covenant in the deed of December 23 1974.
The defendants
either deny or do not admit that the matters complained of have taken place.
Further, they say that, if they have, they have not allowed or suffered or
permitted them to happen. They each, so far as may be necessary, claim relief
against forfeiture.
It is now
necessary for me to deal with the material facts and the relevant evidence in
some detail. First, I shall start with the allegation that since in or about
July 1978 the basement has been used for immoral purposes. This allegation is
based on the evidence of two private investigators. First, Arthur Price gave
evidence of the two visits he paid to the premises. The first was on July 14
1978 when he said that he was given a massage by an Indian woman, aged about
35, who then offered to perform and did perform with him an indecent act
falling short of sexual intercourse, for which he paid her an additional £15
over and above the fee of £12.50 which he had already paid the receptionist. Mr
Price’s second visit was on July 3 1980, shortly before this action came on for
hearing, when he was given a massage by an English woman in her mid-twenties
who did not offer to perform and did not perform any indecent or immoral act.
The second private investigator who gave evidence was Mark Terence Langley, who
visited the premises on June 25 1979, about one year after Mr Price’s first
visit. He said that he was given a massage by a woman of Chinese origin in her
late twenties or early thirties, who then offered to perform and did perform
with him an indecent act falling short of sexual intercourse, for which he paid
her an additional £20 over and above the fee of £7.50 which he had already paid
the receptionist. In spite of one problem which I am unable to resolve, I have
no hesitation in accepting in its entirety the evidence of Mr Price and Mr
Langley, who were both reliable witnesses, whose evidence could not be disputed
and who were not shown to have any reason for giving evidence which was not
true. The one problem is that the evidence adduced on behalf of Mr and Mrs
Ruparel was universally to the effect that only one woman of Indian origin was
employed at the premises from July 1978 onwards and that was a Mrs Singh. She
was produced in court during Mr Price’s evidence, but he said quite positively
that she was not the woman who had given him massage on his first visit in July
1978. As I have said, I am unable to resolve this problem. A number of
explanations are possible. I need not go into these. In the end I am satisfied
that Mr Price was telling the truth and that the events he described took
place. Having accepted his evidence and that of Mr Langley, I conclude that
between July 1978 and June 1979 the premises were on two occasions used for
immoral purposes. And I would, if it is necessary for me to do so, infer that
they were so used on other occasions during the same period. It is unnecessary
for me to decide whether the user was also illegal and I do not do so.
It not having
been suggested that Mr and Mrs Ruparel themselves used the premises for immoral
purposes, I must next consider whether they allowed them to be so used.
The substance
of the plaintiff’s allegation in this respect is that Mr Ruparel knew or ought
to have known of the immoral user, that he abstained from taking reasonable
steps to prevent it when it was within his power to do so, and that he thereby
‘allowed’ the premises to be so used: compare the judgment of Atkin LJ in Berton
v Alliance Economic Investment Co [1922] 1 KB 742 at p 759. I should
point out that Mrs Ruparel was not concerned in any way with the day-to-day
running of the business. She helped with the correspondence, did the books and
so forth, but that was the extent of her involvement. It is not suggested that
she personally allowed the premises to be used for immoral purposes. It is
enough for the plaintiff’s purposes if it establishes that Mr Ruparel allowed
them to be so used.
The plaintiff
says that Mr Ruparel did know what was going on and took certain steps which
were only consistent with his having that knowledge or at least with his not
caring whether the premises were being used for immoral purposes or not. In
particular the plaintiff relies on the fact that Mr Ruparel placed
advertisements for the Queensway Health Club in indecent and pornographic
publications which could only have led those who read them to expect that they
could receive immoral services if they attended the premises. There was a vast
amount of evidence on this topic. The essence of it was that in 1975 and 1976
advertisements were placed in three publications with substantial circulations
whose contents, both photographs and text, were frankly admitted by Mr Moshi, who
appears for Mr and Mrs Ruparel, to be pure filth. Mr Ruparel was then advised
not to advertise in those publications by the Westminster City Council, which
has a supervisory jurisdiction over establishments of this kind within its area
of responsibility. However, in 1978 and 1979 he placed a further series of
advertisements in three other publications with even larger circulations, in
which the photographs were admittedly of a less offensive nature, but in which
certain sections of the text were no better than the first. As to the
advertisements themselves, the main part of the text in both series was as
follows: ‘Come to West London’s most luxurious sauna for a super private
massage — assisted shower — VIP and Two Girl massage — beautifully friendly
masseuses’. Taking the text of the advertisements and their placing in the
publications to which I have referred together, and having seen and heard Mr
Ruparel in the witness box, I am satisfied that Mr Ruparel well knew that they
would be likely to lead those who read them to expect that they could receive
immoral services if they came to the premises. It was said that similar
advertisements were placed in respectable papers and magazines as well, but
that seems to me to be beside the point. The question is, what did Mr Ruparel
think would be the likely effect of the advertisements when they were placed
not in respectable papers and magazines, but in publications of an indecent or
pornographic nature? That question
admits only of the answer I have given. That answer is confirmed by the
unsatisfactory, and at times evasive, manner in which Mr Ruparel gave discovery
for the purposes of these proceedings.
There are
other matters which tend to show that Mr Ruparel knew or ought to have known
that the premises were being used for immoral purposes. First, it is said by
the plaintiff that the photographs on display outside the premises necessarily
suggested to the casual observer that he could receive immoral services inside.
I think that there is something, although not very much, in this point.
Secondly, in July 1978, there was a public inquiry to hear Mr and Mrs Ruparel’s
appeal against the refusal of the Westminster City Council to continue the
authorised use of the premises for planning purposes. Before then the plaintiff’s
advisers had obtained a report of Mr Price’s visit to the premises on July 14
1978 and its managing director, Robin Gibbon, asked for leave to call Mr Price
to give evidence to the inspector. Having consulted the department, the
inspector refused that request. But Mr Gibbon, in the presence of Mr Ruparel,
had already outlined in broad terms to the inspector what Mr Price was going to
say, that he would give evidence of having attended at the premises and would
say what he saw and what services he had been offered. I am satisfied that Mr
Ruparel then, if not before, knew perfectly well what was being alleged against
him by the plaintiff. In my judgment, this is an important point and it tells
against Mr Ruparel. Thirdly, and perhaps equally important, in December 1978
the first defendant served a section 146 notice on Mr and Mrs Ruparel based on
the alleged user of the premises for illegal and immoral purposes. Mr Ruparel
said that he knew what this meant, that he called the masseuses together and he
threatened any of them who was caught committing an immoral act with immediate
dismissal. I have some doubts whether Mr Ruparel did do this, but if he did, Mr
Langley’s evidence of what happened in June of the following year shows that
the steps he took were inadequate. Fourthly, there was evidence as to how much
the masseuses earned from their employment. Mr Ruparel said that a masseuse
made £30 to £40 for a week of about 30 hours: £15 of this would be a basic wage
of 50 pence an hour, and the balance would be made up by commissions at varying
rates not exceeding £1 per client. He made no mention of tips. Mrs Singh said
that she expected to earn about £65 per week, of which about £35 to £38 would
be wages (including commission) and the balance tips. I do not regard Mrs Singh
as a reliable witness. It seemed to me that her evidence either exaggerated or
played down events as the occasion required. I therefore conclude that Mr
Ruparel’s estimate of the normal earnings of a masseuse is likely to be nearer
the truth. And then it might be said that Mr Ruparel ought to have realised
that the women would not be content with £35 to £40 per week and might well
have been earning additional remuneration by providing services of an immoral
nature. However, it was not put to Mr Ruparel quite in that way and I therefore
do not think it would be right to attach any great weight to this particular
point.
On the other
side, evidence was given by two clients of the business to the effect that
there had never been any indication of impropriety when they visited the
premises. That is not conclusive evidence of the absence of impropriety,
particularly when it is alleged to have taken place behind the closed doors of
the massage rooms. Nor is it at all conclusive as to the state of Mr Ruparel’s
knowledge. And it appeared that one client had only had about 10 massages in
all, between about 1970 and 1978, for the specific purpose of treating his bad
back. The other had never had a massage and had used the premises mostly for
the purpose of visiting the gymnasium. There was also evidence that checks were
carried out by Mr Ruparel himself, by the manager, Mr Mehra, and by Westminster
City Council, but having considered the whole of that evidence I am satisfied
that the checks were neither thorough nor regular enough to prevent immoral
services being offered and accepted behind the closed doors of the massage
rooms, and even though there were no locks on the doors. In particular, I think
that Mr Mehra’s evidence on this point was exaggerated and unreliable.
Having
considered all the evidence on this question, and in particular that of Mr
Ruparel himself, I am satisfied that he either knew that indecent and immoral
acts were being committed on the premises or, it matters not which, that he shut
his eyes to whether they were being committed or not. For this conclusion I
rely in particular on the advertisements, on Mr Ruparel’s knowledge of what Mr
Gibbon told the inspector in July 1978, and on the service of the section 146
notice on him in December of that year. It is also clear that although it was
within Mr Ruparel’s power to prevent the immoral user, he abstained from taking
reasonable steps to do so. To a large extent I have covered this point already.
I need mention only two further matters. First, it appears that shortly before
this action came on for trial the doors of the massage rooms were taken off. If
that could be done then, it could and should have been done after Mr Ruparel
heard what Mr Gibbon told the inspector in July 1978. Secondly, after July
1978, Mr Ruparel still continued with the second series of advertisements which
advertised, among other things, ‘private’ massage by ‘beautiful friendly
masseuses’. He clearly ought then, if not before, to have stopped advertising
in that form. In all the circumstances I conclude that Mr Ruparel did allow the
premises to be used for immoral purposes between July 1978 and June 1979.
I deal next
with the question whether the first defendant allowed the premises to be used
for immoral purposes. Shortly after the planning inquiry in July 1978 the
plaintiff’s advisers sent the first defendant a copy of the written report of
Mr Price’s visit to the premises on July 14. In all material respects that
report was to the same effect as the evidence given by Mr Price in these
proceedings. I need not deal in detail with what the first defendant did or did
not do after receiving that report, because it is clear that it did not take
reasonable steps to prevent the immoral user from continuing. Indeed Mr Pryor,
who appears for the first defendant, while making no concession on the point,
found it difficult to argue the contrary. The facts are that it accepted rent
from Mr and Mrs Ruparel after serving the section 146 notice in December 1978.
It did not serve a fresh notice. It did not take forfeiture proceedings against
Mr and Mrs Ruparel. In my judgment, the first defendant ought to have taken
those steps. Since it did not do so it is clear that it, too, allowed the
premises to be used for immoral purposes.
On that
footing and, subject to questions of relief, the plaintiff is entitled to
judgment for possession against the first defendant. That will necessarily
involve the forfeiture of Mr and Mrs Ruparel’s subtenancy of the basement. That
means that the plaintiff’s secondary claim based on annoyance, inconvenience
and nuisance becomes of less importance, but I must nevertheless deal with it
as shortly as I can in relation to the plaintiff’s claim against Mr and Mr
Ruparel under the direct covenant contained in the deed of December 23 1974.
Mr Bompas, who
appears for the plaintiff, emphasised that as against Mr and Mrs Ruparel this
claim is not based on their having allowed or permitted or suffered something
to happen. Clause 2(14) of the agreement dated December 29 1969, when suitably
abstracted for present purposes, requires the lessees not to do on the premises
anything which may be or become an annoyance, inconvenience or nuisance to the
plaintiff or the other owners or occupiers of any adjoining or neighbouring
property and so forth. Mr Bompas, assuming at this stage that Mr and Mrs
Ruparel are still liable under the direct covenant contained in the deed of
December 23 1974, says that they are in breach of this covenant because they
have carried on on the premises a business which has become an annoyance,
inconvenience and a nuisance to the plaintiff and its residential tenants of
the upper parts of the building. As to this, evidence was given by Mr McGregor,
Mr and Mrs Ralph and also Miss Kathleen Ralph. Without going into great detail,
I am entirely satisfied on the evidence that the presence of Mr and Mrs
Ruparel’s business in the basement has caused annoyance and inconvenience and
has been a nuisance to the plaintiff’s residential tenants above. Many incidents
were described in evidence. In particular, evidence was given of men ringing
the doorbells to the flats late into the night on frequent occasions, asking if
the sauna was open or whether massage was available and even explicitly asking
for sexual intercourse. Mrs Ralph gave evidence that this request was made to
her on one occasion in respect of a named woman in terms which were so
offensive to her that she asked to be allowed to write them down on a piece of
paper. Then there was ample evidence that the tenants and their visitors had
been subjected to various forms of importunity and insult from persons standing
in or outside the common entrance passageway which leads from the front door
both to the stairs down to the basement and the stairs up to the flats. On one
occasion Mrs Ralph, who is an elderly lady, was prevented from going down the
passageway by two youths, one of whom threatened her in a way which frightened
her badly. In general I have every sympathy with the tenants in respect of
their complaints on these matters and I am quite satisfied that the events
which they described were the direct result of the presence of Mr and Mrs
Ruparel’s business in the basement.
The convenient
course will be for me to deal next with the question whether the direct
covenant by Mr and Mrs Ruparel with the plaintiff contained in the deed of
December 23 1974 expired with the contractual term on June 30 1977 or whether
it continues while Mr and Mrs Ruparel hold over under Part II of the Landlord
and Tenant Act 1954. As I have said, the material words are ‘and
extended by the supplemental tenancy agreement’. On one reading of those words
it certainly might be said that the covenant expired with the contractual term,
on the ground that that and no more was the term granted by the agreement of
December 29 1969 as extended by that of January 30 1974. But it seems to me
that such a reading ignores the effect of section 24(1) of the 1954 Act, which
provides that a tenancy to which Part II applies shall not come to an end
unless terminated in accordance with the provisions of Part II. It is now well
established that this means that the term granted by the tenancy continues by
way of a statutory extension and with a statutory variation as to the mode of
determination: see, for example, Cornish v Brook Green Laundry Ltd
[1959] 1 QB 394 at p 409. In the circumstances, it seems to me that the term
granted by the first agreement as extended by the second is still subsisting,
albeit that it has been further extended by the 1954 Act. It is still the same
term. On that footing, it seems to me that the better reading of the material
words in the direct covenant is to construe the obligation as continuing so
long as Mr and Mrs Ruparel hold over under Part II of the 1954 Act. And I am
fortified in that conclusion by the knowledge that the rival construction would
produce an anomalous state of affairs which cannot have been within the
contemplation of the parties to the deed. It follows that the plaintiff’s claim
against Mr and Mrs Ruparel for damages for breach of the direct covenant in the two respects I
have mentioned succeeds. I will deal with quantum at the end of this judgment.
I deal next
with the question of relief against forfeiture. Taking it by stages, it is
clear, first, that I cannot, or at least that I should not, grant relief to Mr
and Mrs Ruparel. It is the established practice of the court not to grant
relief in cases where the breach involves immoral user, save in very
exceptional circumstances such as those which were considered in Central
Estates (Belgravia) Ltd v Woolgar [No 2] [1972] 1 WLR 1048. There
are no such circumstances in the present case so far as Mr and Mrs Ruparel are
concerned.
The position
of the first defendant is more difficult. As I have said, the plaintiff’s
primary objective is to get Mr and Mrs Ruparel out of the basement. If the only
way it can achieve that is to forfeit the head lease in toto, then that is what
the plaintiff seeks. On the other hand, provided that the plaintiff can be sure
of obtaining possession of the basement, it has said that it will not object to
the first defendant remaining in possession of the ground floor. This has
raised a novel and interesting question. Has the court got jurisdiction to
grant relief against forfeiture in respect of part only of the property
comprised in a lease?
I should start
by saying that if the only way in which the plaintiff can get possession of the
basement is to forfeit the head lease in toto, I would think it clear that this
is not a case in which I ought to grant the first defendant relief: compare Borthwick-Norton
v Dougherty [1950] WN 481. But if there is jurisdiction to grant partial
relief, I would think it equally clear that I ought to do so. Indeed, since the
plaintiff has said that it will not object to the first defendant remaining in
possession of the ground floor, this is a question which has effectively been
removed from my decision. I assume, of course, that the first defendant will be
able to satisfy the plaintiff and the court that the plaintiff will not suffer
in costs as a result of this action and that it will not be prejudiced in any
material way by the severance of the ground floor from the basement.
Accordingly, I turn to consider whether there is jurisdiction to grant partial
relief. On this question, Mr Bompas, being apprehensive that it might not be
possible to grant such relief without at the same time procuring a surrender by
the first defendant of the head lease so far as it concerns the basement, thus
leaving Mr and Mrs Ruparel as direct tenants of the plaintiff, has argued
against there being jurisdiction. Mr Pryor has argued in favour. Mr Moshi has
argued against.
It is to be
noted that section 146(2) of the Law of Property Act 1925, under which the
first defendant’s application is made, does not specify the nature of the
relief which the court can grant. It says that ‘the court may grant or refuse
relief, as the court, having regard to the proceedings and conduct of the
parties under the foregoing provisions of this section, and to all the other
circumstances, thinks fit’. It appears from cases such as Bowser v Colby
(1841) 1 Hare 109 and Dendy v Evans [1910] 1 KB 263 that regard
will readily be had to the practice of the old Court of Chancery before the
Landlord and Tenant Act 1730 when relief against forfeiture was exclusively a
matter for that court. This is not of direct assistance in the present case. In
those days relief was confined to cases of non-payment of rent, and since rent
issues out of the property as a whole there could have been no question of
relief in part. But it is, I think, important to notice that the Court of
Chancery, acting in personam, either restrained the landlord from
proceeding to take possession at law or, if he had already done so, required
him to grant a new lease. Either result could have been achieved by the
landlord of his own volition. The court did not seek to impose a result which
could not have been arrived at by the landlord himself.
Relief against
forfeiture was a process by which equity restricted a landlord from enforcing
his rights at law. In my judgment it could not then, and cannot now, be granted
so as to impose upon the parties a legal relationship which could not have been
procured by the act of the landlord. If, therefore, I am to grant partial
relief in the present case I must first be satisfied that the plaintiff could,
had it wished, have forfeited the lease so far as concerns the basement alone.
I start with
the proviso for re-entry which is in common form and allows the plaintiff ‘into
and upon the premises or any part thereof in the name of the whole to
re-enter’. It is therefore possible for the plaintiff to forfeit as to the
whole by entering on part, but I do not read those words as restricting any
right to forfeit as to part which is otherwise available to the plaintiff. As
to that, my instinct was against the notion that a landlord can forfeit in
part. But Mr Pryor referred me to Dumpor’s Case (1603) 4 Co Rep, 119b,
in which the Court of King’s Bench established the once well-known rule of
common law that a licence to do an act in breach of a condition in a lease
determined the condition. That rule was abolished by section 1 of the Law of
Property Amendment Act 1859 (Lord St Leonard’s Act), which (with amendments) is
now section 143 of the Law of Property Act 1925, and it is possible that this
has caused the ‘divers points’ which, as the report of Dumpor’s Case
says, were there ‘debated and resolved’ to be forgotten. One of them is treated
at 4 Co Rep 120b, in this way: ‘But it was agreed, that a condition may be
apportioned in two cases. 1. By act in law. 2. By act and wrong of the lessee’.
Apportionment by act in law is then dealt with and the report proceeds as
follows:
2. By act and
wrong of the lessee, as if the lessee makes a feoffment of part, or commits
waste in part, and the lessor enters for the forfeiture, or recovers the place
wasted, there, the rent and condition shall be apportioned, for none shall take
advantage of his own wrong and the lessor shall not be prejudiced by the wrong
of the lessee. . . .
Having
considered this passage with very great care, I can only conclude that the
Court of King’s Bench were of the opinion that it was in certain circumstances
possible for a landlord to forfeit in part. Although the words ‘and the lessor
enters for the forfeiture’ do not expressly refer to an entry on part, it
appears clear from the context as a whole that that is what they mean. Once
that point is overcome, the whole passage is seen to contemplate forfeiture in
part and a consequential apportionment of the rent and the conditions of the
lease between the part taken by the landlord and that retained by the tenant.
It is true that what was under consideration in that case was re-entry for
breach of condition without an express power to re-enter. But I can see no
distinction in principle between that and re-entry under a common form proviso
such as that found in the present case. There being no express restriction on
the right to re-enter on part, I conceive that that right must exist as much in
the latter case as in the former.
In the
circumstances, the researches of counsel having revealed no other authority
either way, I think that I am entitled to treat Dumpor’s Case as
establishing that a landlord can in certain circumstances, such as those found
in the present case, forfeit in part. Had it not been for that case I might
have found some difficulty in acceding to Mr Pryor’s arguments on this point.
But there it is, and it seems to me to be a perfectly respectable peg on which
to hang a decision which I believe will produce a fair and workable result as
between the plaintiff and the first defendant. I emphasise that I do
not intend to go beyond the circumstances of the present case, where the two
parts of the demised property are physically separated one from the other and
are capable of being distinctly let and enjoyed, and where the breaches
complained of were committed on one part of the property and on that part
alone. I have not considered what would have happened if the circumstances had
been different.
I therefore
propose to grant the first defendant relief against forfeiture by restricting
the order for possession to the basement. I will make that order against all
three defendants. I have already indicated the matters on which I shall first
wish to be satisfied in favour of the plaintiff and I will discuss those
matters with counsel at the end of this judgment. I agree with Mr Pryor that
the order for possession of the basement alone will not cause any conveyancing
difficulties, because it is clear on the authorities that the apportionment of
rent and any other questions consequential on the severance of the two parts of
the property can, if necessary, be settled by the court. No doubt an attempt
will first be made to settle those matters by agreement. I should add that I
cannot see how the order which I propose to make could operate as a surrender
by the first defendant of the head lease so far as it concerns the basement,
with the consequences of which Mr Bompas was apprehensive. A surrender could
not be made without the concurrence of the first defendant. The order for
possession of the basement is made in invitum as against the first
defendant, which has claimed relief in respect of the whole and has only
obtained it in part.
Finally, I
return to the quantum of the damages which I should award the plaintiff for Mr
and Mrs Ruparel’s breaches of the direct covenant contained in the deed of
December 23 1974. Having achieved its primary objective of getting Mr and Mrs
Ruparel out of the basement, the plaintiff is less concerned with its claim
against them for damages. I propose, therefore, to award a sum which makes
every allowance in favour of Mr and Mrs Ruparel. The sum I award is £500.
