Landlord's right to double rent

Citation

Waterson, G. and Lee, R. (1999), "Landlord's right to double rent", Property Management, Vol. 17 No. 3. https://doi.org/10.1108/pm.1999.11317cab.009

Landlord's right to double rent

Ballard (Kent) Ltd v. Oliver Ashworth (Holdings) Ltd [1999] The Times 1'April; [1999] 19 EG 161

Readers may possibly be familiar with the provisions of s. 18 of the Distress for Rent Act 1737. For the benefit of any who are not, and because they are central to the question in this case they are set out, so far as material, below:

And whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same: Be it further enacted ... that ... in case any tenant ... shall give notice of his ... intention to quit the premises by him ... holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, that then the said tenant ... shall ... pay to the landlord ... double the rent or sum which he ... should otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent or sum, before the giving such notice, could be levied, sued for, or recovered; and such double rent or sum shall continue to be paid during all the time such tenant ... shall continue in possession ...

The question at issue in this case was whether the provisions covered, not only the situation where the tenant had given notice to quit and then stayed on in the premises, wilfully refusing to give up possession, after the expiration of the notice to quit, but whether they extended beyond that to cover also the situation, as in this case, where the tenant had given notice (in this case to exercise a break-clause) and the landlord contended, albeit incorrectly, that the notice given by the tenant was ineffective and the tenancy therefore continued. In effect, of course, in such a situation the landlord would seem to be trying to have his cake and eat it too, in the sense that the landlord is saying on the one hand that the tenancy is continuing but contending also that if he is wrong in this then the tenant should have left by the appropriate date and that if he has failed to do so, perhaps pending clarification of the legal position by the courts, then the tenant should nonetheless be held liable for double rent under the Act of 1737.

This was a position which the Court of Appeal was unable to accept. In the words of Laws L J, as reported in The Times:

The 1731 Act addressed specifically the situation where a landlord had given notice to quit and the tenant wilfully held over. Nothing was more obvious than the statutes concern to redress the wrong to a landlord arising where his tenant continued in occupation as a trespasser, and where that was the very fact of which the landlord complained.

It was plain that section 18 of the 1737 Act was concerned with the same mischief.

The appeal ought to be concluded in the tenant's favour on the distinct basis that the right to double rent conferred by section 18 only arose where (a) the tenant holding over after his own notice to quit was in fact a trespasser, thus, the notice had to be valid, and (b) the landlord treated him as such. Any other case departed from the plain purpose of the section.

Reading the 1731 and 1736 Acts as a whole, including the latter's preamble and recitals, it was entirely clear that the legislature was concerned only to compensate landlords for the potential loss of rent arising where a tenant held over against the landlord's insistence that he should comply with his own notice to quit.

On the undisputed facts the claim for double rent lay outwith the right conferred by section 18.