Rights of adjoining building owners — Right to do work relating to party walls — Party wall notice — Meaning of “building owner” — Notice given on behalf of one joint tenant only — Whether notice valid — High Court holding that notice served on behalf of only one of two joint tenants was not served by building owner within meaning of London Building Acts (Amendment) Act 1939 — Notice invalid
The plaintiffs, Mr and Mrs Lehmann, were the owners and occupiers of 35 Redington Road, London NW3. The defendant, H, and his wife lived at 33 Redington Road, where they owned a long lease of the ground-floor flat as joint tenants. The lease included the part of the back garden which abutted no 35. The freehold of no 33 was owned by H’s grandmother. The division between the back gardens of nos 33 and 35 was marked by two walls. One was entirely on no 33’s land. The other was a true party wall.
In inner London the rights of adjoining owners in relation to party walls were regulated by the London Building Acts (Amendment) Act 1939. Section 46 set out the rights of such owners. Section 47 (1) provided that before exercising any rights under section 46, a building owner should serve on the adjoining owner notice in writing stating the nature and particulars of the proposed works and the time when they were to be done, etc. The defendant purported to serve a party wall notice under section 47 (1) indicating that work was to be done to a “rear retaining wall and pathway” at no 33. The plaintiffs questioned the validity of the notice arguing that it should have been given on behalf of the defendant and his wife as joint tenants of no 33 and not on behalf of the defendant alone.
Held The notice was invalid.
1. There could be more than one “building owner” in respect of a building for the purposes of the 1939 Act. It was also clear that the defendant and his wife together could constitute “the building owner” for the purposes of serving a notice under section 47 or exercising rights under section 46.
2. However, in practical terms, it would be very odd if the statute provided for one of two joint tenants to deal with an adjoining owner without the other joint tenant being involved. In real property terms, the concept of one joint owner being able to deal with the property, without the other being party to the transaction, had 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, did not carry the matter any further forward. The question was whether the definition of “building owner” compelled such a conclusion.
3. For a person to be a “building owner” for the purposes of the 1939 Act, he must be an “owner”. The definition of owner was not exhaustive. It began “Owner includes …”: see section 5 of the London Building Act 1939. It then continued “…every person in possession or receipt either of the whole or any part of the rent or profits of any land”. That phrase itself must be read as being in a limited sense. It did not include an agent who was in receipt of rents: see Solomons v Gertzenstein [1954] 2 QB 243.
4. 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. The whole rent would be payable to them jointly as trustees and the money (so far as available for distribution) paid out as trust income distributable to each beneficiary according to his entitlement.
5. The remaining words of the definition were “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” had to be construed restrictively. The Act was concerned with persons who were in “the occupation”, not persons who “are occupying”. Where, as in the present case, there were two joint tenants occupying the premises it could not be said that either alone was in “the occupation” of the premises. Nor could the definition of “owner” properly be stretched to include one of the occupiers on the basis that the definition was not exhaustive.
6. It followed that a notice under section 47 served on or on behalf of only one or two joint tenants was not served by a “building owner” within the meaning of the section and was invalid.
Benjamin Levy (instructed by Adlers) appeared for the plaintiffs; Michael Bowsher (instructed by Eppel & Co) appeared for the defendant.
