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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ealing Family Housing Association Ltd. v McKenzie & Anor [2003] EWCA Civ 1602 (10 October 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1602.html Cite as: [2003] EWCA Civ 1602 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE OPPENHEIMER)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE CLARKE
MR JUSTICE RIMER
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EALING FAMILY HOUSING ASSOCIATION LTD | Claimant/Respondent | |
-v- | ||
JOHNSON MCKENZIE | First Defendant/Appellant | |
SHARON McKENZIE | Second Defendant |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS ALEXANDRA STAGI (instructed by Prince Evans of Ealing, London) appeared on behalf of the Respondent
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Crown Copyright ©
"I, Mrs Sharon McKenzie, of [No 38] hereby give you notice that I intend to quit and deliver up possession of [Flat 2] now held by me as your tenant on 17 July 2000."
" ... the notice to quit demonstrates quite conclusively, in my judgment, the intention of Sharon McKenzie to quit and deliver up possession of [Flat 2] ... "
He said:
"A clearer intention, in my judgment, cannot be demonstrated, and it was coupled with her going into possession of [No 38] ...on that day, 17 July 2000."
For these reasons the judge found it unnecessary to consider the relevance, if any, of the second notice to quit. But he said that, if he was wrong so far, that notice was -
"prima facie a document that means what it purports to say, and yields an intention which is patent on its face. In the good old days the doctrine used to be, as expressed in Latin, omnia praesumuntur rite esse acta - that things are presumed to have been done correctly unless the contrary is proved."
"an outrage if Mrs McKenzie still had tenancies of two of Ealing's properties."
If he was right on any of these alternatives it is not disputed that Ealing was entitled to the possession order he made.
"all the old cases will be found to depend on the principle to which we have adverted, namely, an act done by or to the owner of a particular estate, the validity of which he is estopped from disputing, and which could not have been done if the particular estate continued to exist. The law there says that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the result of intention. It takes place independently and even in spite of intention. Thus, in the cases which we have adverted to of a lessee taking a second lease from the lessor, or a tenant for life accepting a feoffment from the party in remainder, or a lessee accepting a rent-charge from his lessor, it would not at all alter the case to show that there was no intention to surrender the particular estate, or even that there was an express intention to keep it unsurrendered. In all these cases the surrender would be the act of the law, and would prevail in spite of the intention of the parties."
"There can be no estoppel by mere verbal agreement; there must be in addition to such agreement some act done which is inconsistent with the continuance of the lease. If after the agreement the landlord actually takes possession or does what virtually amounts to it, if he not only attempts to let, but actually does let, then there is a palpable act done with regard to the premises raising an estoppel~..."
11 July 2000
17 July 2000
22 January 2001
"Of course, unilateral conduct by one of the parties to a tenancy cannot by itself bring to an end the tenancy. Surrender by operation of law requires unequivocal conduct by both landlord and tenant. The landlord council, it seems, was not entirely clear as to the legal effect of the conduct of Miss Vyas. So the council did three things. On December 19, 1988, it ceased to charge rent as from December 12, 1988; thereafter no rent was charged to Miss Vyas in respect of the tenancy at 33, Donovan Court. Second, the council served a document, purporting to be a notice to quit, terminating the tenancy as at the end of January 1989; and, third, by any number of internal memoranda, the council showed that it regarded Miss Vyas's tenancy of 33, Donovan Court as having come to an end. I refer, in particular, to the comments describing the occupation of Mr Sharma, who had been living with Miss Vyas at 33, Donovan Court, as in 'unlawful occupation'.
The council's conduct in December 1988 may, correctly viewed, have been equivocal. But, in my judgment, by February 1989 at the latest the council's conduct had become entirely unequivocal. If both tenant and landlord are unequivocally treating a tenancy as at an end, the law has no business to insist on its continuance."
"In my judgment the combination of no longer charging rent to the tenant, the service of the notice to quit - which, as my Lord in the course of argument said, was really a belt and braces effort by the council, but which clearly showed that from the expiration of the notice they were treating the tenancy as at an end - coupled with the fact that for months the tenant, to their knowledge, was not in possession or occupation of the premises and the fact that they did not demand any rent during that period, is really overwhelming evidence that they were showing by their conduct that the tenancy no longer existed."
"If both tenant and landlord are unequivocally treating a tenancy as at an end the law has no business to insist on its continuance."
Order: Appeal dismissed with costs.