House converted into flats — Breach of covenant — Claim for forfeiture of lease — Fourth party ordered to forfeit — Defendant and third party to reinstate at future date
In this case a dwelling-house let on a lease which prohibited structural alterations without the landlord’s consent, was, in alleged breach of covenant, converted into flats by a sub-lessee. The landlord claimed against the tenant for forfeiture of the lease and mesne profits or damages for breach of covenant. The tenant brought in as third party his sub-lessee, from whom he claimed indemnity, and the third party claimed indemnity from his sub-lessee, who admitted that the alternations had been made but denied that they were a breach of covenant entailing forfeiture of the lease.
The parties were: Plaintiff, the Duke of Westminster, represented by Mr George Bankes (instructed by Messrs Boodle, Hatfield & Co); defendant, Brigadier Alan Henry Campbell Swinton, of Chester Square, London, SW1, represented by Mr Colin Duncan (instructed by Messrs Radcliffes & Co); third party, Colonel Donovan Guy Adams, of Sloane Street, London, W (represented by Mr Donald McIntyre (instructed by Messrs AJ Adams & Adams); fourth party, Mr Donald Rees Williams, of Harrow Road, London, W, represented by Mr Leonard Pearl (instructed by Messrs JM Isaacs and Co).
The premises concerned were No 40, Chester Square, London, SW, which were leased in 1923 on a 62¼ years’ term to Alan Archibald Campbell Swinton, and the lease became vested in the defendant. Plaintiff’s case was that the lease provided that the premises were to be used as a private dwelling-house and that no alterations were to be made without the previous consent of the ground landlord. In July, 1946, in breach of those terms, the house was converted into six separate flats. Evidence was given that the cost of reinstating the house would be £480 and would take three to six months.
Brigadier Swinton said that he had never occupied the house and made no alterations. On Colonel Adams’ behalf it was stated that from 1940 to 1945 he was a prisoner-of-war in Germany, and was now serving there in a civilian capacity.
An official of the Westminster City Council, called on behalf of Mr Williams, said that, in 1946, the Council served a requisitioning notice on Mr Williams, but this was withdrawn when Mr Lewis said he wished to live on the premises with five other families.
Mr Frank Lewis, builder and property-owner, and partner of Mr Williams, gave evidence that the conversion was not permanent and was carried out without first obtaining the ground landlord’s permission because of the threat of requisitioning. He estimated that reinstatement would take about six days.
Mr Williams, in the witness box, agreed that he and his partner “took a chance” in not getting the ground landlord’s permission.
Counsel for the defendant and third party pointed out that the alterations were carried out without their knowledge.
Mr Pearl argued that there had been no breach of the covenant. The premises were still used as a private dwelling-house, and the alterations made did not come within the meaning of alterations prohibited by the lease since they were not permanent.
In his judgment, Mr Justice Denning said that before the last war all the houses in Chester Square were private residences, but after the war a vast change had taken place. Some houses were destroyed by enemy action, some were requisitioned for offices, and others were requisitioned for housing families. As a result little more than a half of the properties was now used for private residential purposes.
During the war, No 40 was empty, and was not occupied until 1946, when Mr Williams took the lease at £350 a year. He was quite certain that that was with the intention of converting the house into flats, otherwise that rent would not have been offered. Lewis and Williams carried out the conversion without attempting to notify the landlords. The conversion was clearly a breach of the terms that the house should be used as a dwelling-house and that no alterations should be made without consent. He also believed that the statement on which the City Council withdrew its requisitioning was a falsehood, and Mr Lewis did not intend living at the house.
In the present circumstances of housing it would be beating the air to order immediate restoration to a singe dwelling-house.
Mr Justice Denning then made the following orders:
Brigadier Swinton not to forfeit his lease but to restore the premises to their previous condition within two years or such further time as the Court might allow;
Colonel Adams to have the same relief;
Mr Williams to forfeit his lease and pay the costs of the other parties to the action.
The Judge also awarded £200 damages to Colonel Adams against Mr Williams, to be put into a joint account to pay for the cost of reinstatement of the premises.
His Lordship said he could not allow Mr Williams to flout the law as he had done. Any tenants without their landlord’s consent could convert a house into flats, claim relief, and make large profits.
“I decline to sanction such lawlessness,” he declared.
He added that Colonel Adams would now get the benefit of the income from the flats and should repay to Brigadier Swinton arrears of rent from that income.
