London Building Acts (Amendment) Act 1939 — Whether notice given by one of two joint tenants of leasehold interest, purportedly under section 47 of the Act, valid
The
plaintiffs, Mr and Mrs Lehmann, are the owner-occupiers of 35 Reddington Road,
London NW3. The defendant and his wife, Mr and Mrs Herman, own a long lease of
the ground-floor flat in the adjoining property, 33 Reddington Road; the
freehold of which is owned by Mrs Herman’s grandmother, Mrs Goodman. The
division between the back gardens of nos 33 and 35 is marked, inter alia,
by a true party wall. In February 1991 Mrs Goodman’s agents, Clifford Tee &
Gale, informed the plaintiffs that works were proposed at no 33 and, by a
letter dated October 13 1991, notice under section 47 of the London Building
Acts (Amendment) Act 1939 was purportedly given to the first plaintiff on
behalf of the defendant. By a letter dated December 23 1991 the plaintiffs’
solicitors informed the defendant that, by reason of the notice having been
served solely on his behalf, and because the defendant and his wife were the
joint tenants of the lease of their flat, the notice was invalid: the letter
invited the defendant to procure that his wife confirm that she was bound by
the notice. The defendant contended that the service of a notice by one of two
joint tenants was valid.
constitute the ‘building owner’ under the 1939 Act for the purpose of serving a
notice under section 47 or exercising any rights under section 46. The
definition of ‘owner’ in the London Building Act 1930, section 5, includes
‘every person in possession . . . or in the occupation of any land’ and ‘in the
occupation’ must be construed restrictively. Where there are joint tenants
occupying the premises, it cannot be said that either alone is in the
occupation of the premises; both are in the occupation and both must serve a
notice under section 47.
The following
cases are referred to in this report.
Crosby v Alhambra Co Ltd [1907] 1 Ch 295
Featherstone
v Staples [1986] 1 WLR 861; [1986] 2 All ER
461; [1986] 1 EGLR 6; (1986) 278 EG 867, CA
Hammersmith
and Fulham London Borough Council v Monk
[1992] 1 AC 478; [1991] 3 WLR 1144; [1992] 1 EGLR 65; [1992] 09 EG 135, HL
Newman v Keedwell (1977) 35 P&CR 393; 244 EG 469, [1977] 2 EGLR
4
Solomons
v Gertzenstein (R) Ltd [1954] 2 QB 243;
[1954] 3 WLR 317; [1954] 2 All ER 625, CA
This was a
hearing of an originating summons of the plaintiffs, Mr and Mrs Lehmann, to
determine the validity of a notice under section 47 of the London Building Acts
(Amendment) Act 1939 served on behalf of the defendant, Mr Herman.
Benjamin Levy
(instructed by Adlers) appeared for the plaintiffs; Michael Bowsher (instructed
by Eppel & Co) represented the defendant.
Giving
judgment, MR REID QC said: This is a dispute between neighbours. The
issue is whether a party wall notice under section 47 of the London Building
Acts (Amendment) Act 1939 served on behalf of the defendant on the first
plaintiff is valid. The defendant says that it is valid; the plaintiffs say
that it is not. They say that to be valid it should have been given on behalf
of the defendant and his wife and not on behalf of the defendant alone.
The
plaintiffs, Mr and Mrs Lehmann, are the owners and occupiers of 35 Reddington
Road, London NW3. Mr Herman, the defendant, and his wife live at 33 Reddington
Road. They have a long lease of the ground-floor flat there. The lease includes
the part of the back garden which abuts no 35. The freehold of no 33 is owned
by Mrs Herman’s grandmother, Mrs Goodman. The division between the back gardens
of nos 33 and 35 is marked not by one but by two walls. One wall is entirely on
no 33’s land, the other is, on the material before me, a true party wall.
It is evident
from the correspondence that relations between the Lehmanns and the Hermans
have been strained for some time, but the matters giving rise to these
proceedings began in February 1991, when managing agents acting for Mrs Goodman
wrote a letter addressed to the freeholder of no 35 indicating that works would
be done to a rear retaining wall and pathway at no 33. There followed
correspondence between Mr Lehmann and his representatives on the one hand and
Mrs Goodman and her representatives and Mr Herman and his representatives on
the other. The correspondence was lengthy and involved. For the purposes of the
present proceedings I need say only that it led eventually to Clifford Tee
& Gale, as surveyors and architects for Mr Herman, serving the document,
the validity of which is the issue in these proceedings. The notice was sent
under cover of a letter dated October 13 1991 and is in these terms:
To: R J
Lehmann Esq of 35 Reddington Road, NW3.
I, I Herman,
of [then no address is given] as owner of 33 Reddington Road, London, NW3 which
adjoins your premises known as 35 Reddington Road, London, NW3, hereby serve
you with notice that in accordance with my/our rights under S46(1) and with
reference to the party fence wall separating the above premises, it is intended
to carry out the works detailed below after the expiration of one month from
service of this notice. The proposed works are:
The
reconstruction of a new retaining wall including special foundations running
parallel with the rear wall of no 33 to replace the existing defective
retaining wall and to rebuild part of the defective boundary wall of no 33
which runs parallel with and touches the party fence wall. It is intended to
commence works as soon a notice has run, earlier by agreement. Under S49 if you
do not consent to the works within fourteen days you are deemed to have
dissented and a difference is deemed to have arisen. In such case S55 of the
Act requires that both parties should concur in the appointment of a surveyor
or should each appoint one surveyor and in those circumstances I/we would
appoint Mr C J Graham, of Clifford Tee & Gale . . .
— and the
address is given. It is then signed on behalf of Mr Herman and dated as I have
indicated. With it was enclosed a form of acknowledgement, the relevant parts
of which read:
I/we, R J
Lehmann Esq, 35 Reddington Road, London NW3 having received the notice served
by I Herman in respect of 33 Reddington Road, London NW3 which joins with
my/our premises known as 35 Reddington Road in relation to which the works
proposed under S46(1) . . .
— then there is
provision for either consent or dissent.
Mr Lehmann
passed the letter and its enclosure to his solicitors. They replied on behalf
of both Mr and Mrs Lehmann raising a number of points. This led to further
detailed correspondence between the parties’ advisers. I do not need for the
purposes of these proceedings to go through it, save to say that the Lehmanns
appointed a surveyor pursuant to the Act, but the appointment was expressed to
be under protest and without prejudice to their contentions as to the validity
of the notice.
The
culmination of the correspondence was a letter dated December 23 1991 from the
plaintiffs’ solicitors, in these terms, sent to Mr Herman:
We act on
behalf of Mr and Mrs Ralph Lehmann, your neighbours at 35 Reddington Road, with
regard to the above.
— The above
being 33 and 35 Reddington Road, London NW3, party wall matters —
We hereby
formally put you on notice that the Party Structure Notice dated 15th October
1991 served on Mr Lehmann appears to have been served solely on your behalf. We
should inform you that in view of the fact that you are joint owner of Flat A,
No 33 Reddington Road, with Laurel Susan Herman, your wife, and in view of the
provisions of the London Building Act 1930 and London Building Acts (Amendment
Act) 1939 the above said notice is not a valid notice for the purposes referred
to therein. Accordingly, our clients require you to procure and your wife
formally to undertake to treat herself as bound by the said notice as well as
yourself. Moreover our clients require written confirmation of the same. You
should be left in no doubt that should you fail to provide such evidence within
seven days of the date of this letter or seek to prevaricate, our clients will
forthwith commence proceedings to have the said notice declared invalid. Yours
faithfully . . .
— and signed by
the solicitors. The invitation to Mrs Herman to treat herself as bound by the
notice was not taken up and these proceedings then followed.
The basis upon
which Mr Herman acted and the reasons why Mrs
to treat herself as bound by it, appear from two paragraphs in the affidavit
sworn by Mr Herman. They read as follows:
I am advised
and verily believe that as a matter of law service by one of two joint tenants
or tenants in common is sufficient just as service upon one of two joint
tenants will suffice. In the circumstances I respectfully submit that service
by me, a joint tenant together with my wife, of a notice upon the first
plaintiff, a joint tenant together with the second plaintiff, is sufficient. In
any event, however, I am the person who proposes to carry out the works. I
appointed the party wall surveyor, Mr Graham, I have appointed Tant Building
Management Limited to design and supervise the works, I shall be entering into
the building contracts in my own name, I shall pay for the works by cheques
drawn on my account. My wife has had no involvement in any of this and it is
not intended that she will become involved, save perhaps to the extent of
offering mugs of tea to the building contractors from time to time. I
respectfully submit that even if the assertion in paragraph 15 above is wrong
my wife cannot be construed as the building owner.
Those, then
are the facts.
The first of
the relevant statutory provisions is section 46 of the 1939 Act. It begins:
(1) Where lands of different owners adjoin and at
the line of junction said lands are built on or a boundary wall being a party
fence wall or the external wall of a building has been erected, the building
owner shall have the following rights: —
(a) A right to make good underpin thicken or
repair or demolish and rebuild a party structure or party fence wall in any
case where such work is necessary on account of defect or want of repair of the
party structure or party fence wall.
Section 47(1)
then sets out requirements that have to be fulfilled before the rights given by
section 46 can be exercised. It provides:
Before
exercising any right conferred on him by section 46 (Rights of owners of
adjoining lands where junction line built on) of this Act a building owner
shall serve on the adjoining owner notice in writing (in this Act referred to
as ‘a party structure notice’) stating the nature and particulars of the
proposed work the time at which it will be begun and those particulars shall
where the building owner proposes to construct special foundations including
plan sections and details of construction of the special foundations with
reasonable particulars of the loads to be carried thereby.
In section 48
there is provision for a counternotice to be served on the ‘building owner’
which in context means the building owner who served the party structure
notice. There are then further provisions and section 55 provides for the
settlement of differences by a surveyor or surveyors, for appeals from their
decisions and for the award of the costs. Section 56 relates to the
apportionment of expenses as between the building owners and the adjoining
owner. It begins:
The following
provisions shall apply with respect to the apportionment of expenses as between
the building owner and the adjoining owner: —
(a) Expenses incurred in the exercise of the
rights conferred by paragraph (a) subsection (1) of section 46 (Rights
of owners of adjoining lands where junction wall built on) of this Act shall be
defrayed by the building owner and the adjoining owner in due proportion regard
being had to the use which the two owners respectively make or may make of a
party structure or party fence wall;
Section 57
enables an adjoining owner to obtain security for expenses from a building
owner.
Under section
1 of the Act it is necessary to look at section 5 of the London Building Act
1930 for the definitions of ‘adjoining owner’, ‘building owner’ and ‘owner’.
The definition section is prefaced by words: ‘In this Act, save as is otherwise
expressly provided therein and unless the context otherwise requires, the
following expressions have the meanings hereby respectively assigned to them,
that is to say: . . .
— and then the
definitions follow. The respective definitions are as follows:
‘Adjoining
owner’ and ‘adjoining occupier’ respectively mean any owner and any occupier of
land buildings storeys or rooms adjoining those of the building owner; . . .
‘Building
owner’ means such one of the owners of adjoining land as is desirous of
building or such one of the owners of buildings storeys or rooms separated from
one another by a party wall or party structure as does or is desirous of doing
work affecting that party wall or party structure;
‘Owner’ is
then defined:
‘Owner’
includes every person in possession or receipt either of the whole or of any
part of the rent or profits of any land or tenement or in the occupation of any
land or tenement otherwise than as a tenant from year to year or for any less
term or as a tenant at will;
As is clear
from those definitions, for the purposes of the 1939 Act there can be more than
one building owner in respect of a building. It is also common ground that Mr
and Mrs Herman together could constitute the building owner for the purpose of
serving a notice under section 47 or exercising rights under section 46.
Mr Bowsher,
for the defendants, went further. He contended that Mr Herman alone could be a
building owner for the purpose of section 47. Basing himself on the statutory
material that I have cited he submitted that the Act was not intended to raise
complex issues of property law. It was, he said, intended that any one of the
owners of an interest in the property should be able to serve a notice under
section 47(1) of the Act if he were desirous of doing works to which section 46
applied and there was nothing in the Act which required all joint tenants to
join in serving a notice. He submitted that each joint tenant was, by himself,
a building owner within the meaning of the Act and so capable of serving a
notice under section 47(1), independently of any other joint tenant. Mr and Mrs
Herman were both occupying their flat and therefore each alone is a building
owner for the purposes of the section. He argued that only the owner who desires
to carry out work affecting a party structure is required to serve a party
structure notice.
In support of
his submission he referred to Crosby v Alhambra Co Ltd [1907] 1
Ch 295, a case on the London Building Act 1894. In that case the issue was as
to the meaning of the term ‘adjoining owner’ in the 1894 Act. Neville J said,
at p299:
I hold,
therefore, that the true interpretation of the two sub-sections is that all the
persons coming within the definition of ‘owner’ in sub-s 29 must be served,
except in the case where several persons hold, as tenants in common or as joint
tenants, some particular interest in the land, in which case service on one of
such tenants in common or joint tenants would be sufficient.
This, said Mr
Bowsher, showed by analogy that one of two joint tenants could serve a notice
under section 47(1) of the 1939 Act.
Mr Levy on
behalf of the plaintiffs submitted that the context and purpose of the London
Building Acts (Amendment) Act 1939 required that any notice served by joint
tenants be served by or on behalf of all of them. He pointed out that it would
be unsatisfactory if one joint owner could serve a notice which created new
rights and obligations between the parties to the notice and that the objection
to a notice served by only one joint tenant could not be regarded as a mere
technicality. He suggested that if Mr Bowsher’s submission were right, where
there were joint tenants, one of whom was impecunious, that one could serve the
notice and the adjoining owner would effectively be left without remedy in
respect of any award of costs under section 55 and perhaps would also have
difficulties in recovering expenses, though he accepted that the securities
provisions of section 57 provided some protection in that respect. He also submitted
that it might be very difficult to operate the expenses provision of section
56(1) properly where one of two joint tenants could be the building owner.
He drew a
distinction between the service of a notice on one of two joint tenants as in
the Alhambra case and the service of a notice creating rights by only
one joint tenant. In support of his argument he cited Newman v
Keedwell (1977) 35 P&CR 393 and referred to Featherstone v
Staples [1986] 1 WLR 861 and Hammersmith & Fulham Borough Council v
Monk [1992] 1 AC 478. There would, he submitted, be difficulties about any
ensuing arbitration which would bind only one of two joint tenants. In his
submission it would be unreasonable to expect the Act to be formulated so as to
enable one of two or more joint tenants to take the benefit and bear the burden
of the notice and for the others to say ‘we shall not be bound’. The words in
section 5 of the 1930 Act ‘such one of the owners of adjoining land as is
desirous’ must therefore be construed as meaning ‘such owner of any layer of
ownership of adjoining land as is desirous’. By ‘layer of ownership’ he
explained that he meant, for example, that the freehold was one layer, a lease
another layer and an underlease a third layer.
In my
judgment, it would be surprising if the statute were intended to have the
effect for which Mr Bowsher contends. Simply in practical terms it would be
very odd if the statute provided for one of two joint owners to deal with an
adjoining owner without the other joint owner being involved. In real property
law terms the concept of one joint owner being able to deal with the property
without the other being party to the transaction has been foreign to English
law since the 1925 property legislation. The fact that notice could validly be
given to one of two joint tenants so as to be effective as notice to both and
to bind both, does not carry the matter any further forward. Does the
definition of building owner then compel such conclusion? In considering that, of course I bear in mind
the opening words of section 5 ‘unless the context otherwise requires’, and I
take the view that even if Mr Herman alone could otherwise be a ‘building
owner’ within the definition, the context here requires otherwise. But could he
anyway be described as a ‘building owner’?
In order for a person to be a building owner for the purposes of the
Act, he must be an ‘owner’. The definition of ‘owner’ is not exhaustive, it
begins ‘owner includes’. It then continues:
. . . every
person in possession or receipt either of the whole or of any part of the rent
or profits of any land . . .
It is not
suggested that Mr Herman alone could be regarded as being in possession of his
flat, nor that he is in receipt of any rents or profits. In any event this
phrase itself must be read as being limited in some sense. It does not include
an agent who is in receipt of rents: see Solomons v R Gertzenstein
Ltd [1954] 2 QB 243. Similarly, in the ordinary case, neither joint tenant
of premises let at a rent could be said, when taken alone, to be in receipt of
any part of the rent. Technically the whole rent would be payable to them
jointly as trustees (even if received by one as agent for both) and the money,
so far as available for distribution paid out as trust income, distributable to
each beneficiary according to his entitlement.
The remaining
words of the definition are ‘or in the occupation of any land or tenement
otherwise than as a tenant from year to year or for any less term or as a
tenant at will’. Here ‘in the occupation’ must be construed restrictively. This
is clear from the following words; the Act cannot be intended to be construed
so that a tenant for 11 months certain is not an owner, but a mere licensee is.
The clue lies in the words ‘the occupation’. The Act is concerned with persons
who are in the occupation, not persons who are occupying. Where, as in
the present case, there are joint tenants occupying the premises, it cannot be
said that either alone is in the occupation of the premises. Nor can the
definition of owner properly be stretched as to include one of the occupiers on
the basis that the definition is not exhaustive.
It follows
that, in my judgment, a notice under section 47 served by or on behalf of only
one of two joint tenants is not served by a building owner within the meaning
of the section and is invalid. I, therefore, hold that the plaintiffs are
entitled to succeed in these unfortunate proceedings.
