015-NLR-NLR-V-58-E.-NALLATHAMBY-Appellant-and-MRS.-G.-M.-LEITAN-Respondent.pdf
Presoil : Gunasekara, J., and Sinnetamby, J.
E. NALLATHAMBY, Appellant, and .MRS. G. M. TJ31TAN-Respondent/?. C. 1-5G—D. O. Oampaha, 3151}31
Kent licstriction Act—Cleaning of term “premises ”—How far it includes land onrwhich a building .stands.
Where a property consisting of a house and garden is let as one unit, thc-l.mdlord cannot subsequently claim that the standard rent should bo calculatedon the basis that the premises let consists of two parts and that only the portionwhere the house Stands is subject to the provisions of the Rent Restriction Act._to the exclusion of the remaining baro hind..
Where a house has been let together with land, what one has to ascertain iswhether the house is an adjunct of the land or the lund an adjunct of the house-It is a pure question of fact. If the land'is considered to be an adjunct of the-house, the Rent Restriction ^ct "'ill apply, but if the converse is the case the-.Act will not apply.
..^LPPJvAL from a judgment of the District Court,, Gampahn.
//. IF. Jayeicardene, Q.C., with j)/. Sonut.mutlrram and S. Sharmnantht,for the plaintiff appellant.
Walter Jayaicardcne. with Xccillc li'ijcralne. for the defendant.respondent-.
Cur. adv. vult.
iScjit ember 25, 1956. Sixxetamby, J.—
In this case the plaintiff who was a tenant under Agreement D2 of-30/9/46 of the premises described therein as bearing Assessment No. 245,Sea Street, Ncgombo, sued his landlord, the defendant, for the recoveryof excess rent over and above the standard rent of the premises forthe period 1st August, 1949 to 31st December, 1951, aggregating toIts. 1,544'25. According to the evidence the property let is about.21- or 3 acres in extent with a dwelling house standing on a site of aboutone rood in extent. The rest of the land is planted in coconuts. At the-commencement of the tenancy the entire premises were let as one unit■and bore Assessment No. 245 which in 194S was changed to No. 156.The premises were described in the Assessment Register PI as “ Tiledhouse and garden In December, 1951 the premises were dividedby the Municipality at the instance of the defendant into two parts and.given two separate assessment numbers. The house described in PI.as “ tiled house ” was given No. 154 and the garden described in PI as“garden” was given No. 156 as a separate entity, the Annual Valueof Rs. S49 being apportioned between them as follows : Rs. 5S9 for thetiled house and Rs. 2G0 for the garden. By agreement of the partiesdefendant took over possession of the garden bearing Assessment No. 156and the plaintiff continued in possession of the dwelling house.
The evidence discloses that the annual value in 1941 was Rs. 2S9and it is not disputed that on this basis the standard rent would beRs. 36'75 but the defendant has recovered at the rate of Rs. 90 permensem: Rs. 53'25 per month represents the excess rent paid. The-defendant however contends that the premises let consists of two partsrepresented now by the two portions bearing the assessment numbersT54 and 156 ; that there has been an apportionment of the rent betweenthem ; and that it is only the portion where the house stands which issubject to the provisions of the Rent Restriction Act and not the other.The argument in the trial Court proceeded on the basis that if the houseand its immediate adjuncts are to be considered as a separate unit subjectto the provisions of the Rent Restriction Acts and the garden anotherunit not subject to the Act in respett of which the landlord could recover
any rent he pleases there would be no overpayment, and it is on thisbasis that the learned trial judge based his decision. It is against this-finding that the present appeal has been preferred.■
Ordinance No. GO of 1942 by which rent restriction was first introducedapplied to all “premises” within certain proclaimed areas and theword is repeated in the Act of 1948 2. There is no definition given to theword “ premises ” in either of the enactments and it has been left tothe Courts to evolve a definition which would give effect to the intentionof the legislature. This Court has held in Pakiadasan v. Marshall Appu 3that the term does not apply to a bare land and for the Act to be applicablethere must be a building on the land : the expression used is “ a buildingwith the land appurtenant thereto devoted to residential or businesspurposes”. For the purpose of that decision it was only necessaryto hold that land without any building on it docs not come within theambit of the Ordinance. The Court was obviously confining its comments-to the facts of that particular case. I do not think this decision speci-fically defines “premises” as something which must be limited to thebuilding and the land appurtenant thereto, in the sense that if the propertylet contains a building and more land than can be regarded as strictly“appurtenant” thereto, it cannot be regarded as “premises”. If soit would raise problems of a difficult nature and it would be contraryto the view taken in the- earlier decision of Nicholas Hamy v. JamesAppu 4 by a Bench of two judges reported in 52 N. L. R. 137 where theword is defined as “ building ” or “ building on a land ”. Thisearlier decision was not cited at the subsequent hearing of Pakiadasan v.3Iarshall Appu when the Bench consisted of a single judge sitting alone.In Nicholas Hamy v. James Appu the word “ premises ” was held toinclude not only the building and the land on which it stands but eventhe machinery .and tools in the building which was being used as aworkshop. Each case must be decided on the facts and circumstancesestablished by the evidence, given in the course of the trial and commentsmade in connection with facts established in one case may be whollyinappropriato in another case where the facts arc entirely different-.
If the definition is to be confined to the “ building and land appurtenantthereto ” a difficulty with which one is immediately confronted is thedifficulty of deciding what extent of land can be regarded as appurtenantto a building. It will become a variable and an uncertain quantityand a fruitful source of much litigation. What one may regard asappurtenant to a building in the countryside will not be so regarded ina busy section of the built up portion of the City, etc. It was suggestedthat to come within that term the land might be limited to Jrd the areaof the actual site on which the building stands in view of the provisionsof the Housing and Town Improvements Ordinance, where presumablyfor health reasons, it is provided that no building should cover morethan §rd the area of the land on which it stands. This is an express –
provision in that particular Ordinance -which cannot he willy niflyimported into another merely because it may provide a satisfactorysolution to a difficult question.
Xo assistance can be derived from a consideration of the English Actswhere the word “ premises ” is not used. The original Act of 1915 wasintroduced in the United Kingdom immediately after the commence-ment of the first World War and was applicable to
“ a house or part of a house let as a separate dwelling where suchletting does not include any land other than the site of the dwellinghouse and a garden or other premises within -the curtilage of thedwelling house.” (1950 2 A. E. It. 10S'2)
The word “ site ” has been held to mean the portion of land upon whichthe four walls of the house stands. " Curtilage ” is defined in theConcise Oxford Dictionary to mean “ area attached to a dwelling house ”.This provision was found to be unsatisfactory and was superseded bythe Act of 1920 which provided as follows in Section 12 (2) :
“ For the purpose of this Act any land or premises let with a houseshall, if the rateable value of the land or premises let separately wouldbe less than £ the rateable value of the house, be treated as part ofthe house, but, subject to this provision, this Act shall not apply toa house let together with land other than the site of the house.”(I960 2 A. E. R. JOSS)
It will thus be seen that if the rateable value of the land when let to ahypothetical tenant exceeds £ the rateable value of the house alonethe Acts would not apply: something more definite and more readilyascertainable than the vague term “ curtilage ” was brought into force.It is important to note that to be treated as part of the house the landshould have been let together with the house and in considering whether-this was so the English Courts have held that it is important to considerwhether the two lettings were treated by the -parlies as one (Megaivy,7th Ed. p. 92) and this far out-weighed the circumstance that the housewas on a weekly tenancy and the land on a lease Qlegarry, 7th Ed. p. 92where reference is made to decided cases). The Act of 1939 amendedthese provisions further and provided that
“ any land or premises let together with the dwelling house shall"unless the land or premises consist or consists of agricultural land'exceeding 2 acres in extent be treated as part of the dwelling house.”
It will be seen that the English Acts from time to time extended thescope of the Rent Acts. In 1915 it covered only the site and the curtilage ;the 1920 Act extended the meaning of the term *' dwelling house ” to- -include not only the curtilage but also land let with the house provided -its rateable value was not more than £ the rateable value of the house.-
The Act of 1939 widened the protection given to tenants stilt furtherand included within the scope of the Acts any land however large letwith the dwelling house subject to the condition that if it was agriculturalland it did not exceed two acres provided of course the rateable valueof the entire unit did not exceed the figures mentioned in the Act : theterm “ agricultural land ” was defined. The learned trial judge wasmistaken in regard to the scope and effect of the English Acts when he*observed :
“ Even under the English Law where a house is let with land otherthan the site of the house the letting ceased to be protected by the.Rent Act
At no stage in the development of the Kent Acts was this the law inEngland. The learned trial judge was perhaps influenced by thiserroneous impression he had of the law prevailing in England under theRent- Acts. He purported to follow Pakiadasan v. Marshall in whichthe observations of the Appeal Judge must be regarded as obiterHe did not consider, presumably because it was not brought to his notice,the case of Nicholas Hamy v. James Appu.
The Ceylon Ordinance and the subsequent Acts afford no guidanceas to' what is meant by' the term “ premises ” and no attempts havebeen made except, as far as I can gather, by the decisions already referred"to, to define it. It seems to me that where a house has been let togetherwith land what one has to ascertain is whether the house is an adjunctof the land or the land an adjunct of the house. It is a pure questionof fact but this aspect of the matter lias not been considered by the.learned trial judge. If the land is considered to be an adjunct of thebouse, in my view, the Kent Restriction Act will apply but if the converseis the case the Act will not apply. In order to decide this it seems tome the simple test to apply is to consider how the parties regarded thetransaction. Did they regard it as the letting of a house with a garden-attached in which event it will come within the purview of the KentRestriction Act or did they regard it as a lease of a land in which therehappens to be a house or hut in which event the rent paid cannot beregarded as coming within the control of the Rent Restriction Act ?Applying this test it is abundantly clear that the parties regarded the-contract in question as a letting of a house with a garden as an adjunct.This is quite manifest on an examination of the contract D2. Paraprovides that the tenant shall on 30/9/47 deliver peaceful possessionof the premises as the landlord requires the same for his and his family’soccupation—a contingency which did not eventually arise. It is onlya house that can be occupied. Para 6 provides that the landlord willnot attend to any repairs of the premises during the tenancy, and para 7•provides that if the landlord requires the house before the terminationof the said period he will give three months’ notice to the tenant. What–was uppermost in the minds of the parties was the house and not thesrarden. “ Repairs ” is a term used in connection with a building andthere are no covenants which one associates with a plantation in this
■aerccnient. Learned Counsel for the respondent, however, argued, ifI understood him aright, that where the value of'a house as a househas been increased by' the existence of a garden then the Kent RestrictionAct would not apply. Xo doubt, where the land is fairly largo in extent*.and is planted with coconuts, the land apart from the house wouldhave an appreciable income value but I cannot conceive of a case wherethe value of any building would not appreciate in value at least to thetenant by the existence of a garden, however small in size or in produc-tivity. The test suggested by learned Counsel would be too vague anduncertain.
The mere fact that what was originally one jmit has since beenseparated into two would notin my opinion make any difference. LearnedCounsel relied on the ease of Langford Property Co. Ltd. v. Batten1 in.support of his argument. In that case two separate units which wereoriginally separately let were subsequently let together as one unitand it was held that the premises subsequently let formed an entitydifferent to the house alone which was originally let to the tenant forthe purpose of the Kent Restriction Act. and that therefore the standardrent of the new unit was not the standard rent of the house alone. Withthis statement of the law one cannot possibly disagree, but it does notmean that the converse proposition is necessarily' correct, viz., thatwhere laud and a house are let as one unit its subsequent division intotwo will make it legitimate to regard the original letting as divisibleinto two separate units anti that the Rent Act will apply only to thatportion on which the house stands, the standard rent being the rentat which it could in 19-il be let to a hypothetical tenant and not to thebare land which can be let at any rent. . To subscribe to such a pro-position would have the cffcc-t of depriving the tenants of the protectionAvliich our Rent Act gives them, for an unscrupulous landlord can alwayssubdivide or claim that he can subdivide his property into a portioncontaining the house and a portion not containing the house and socontend that he can charge what rent he pleases for the bare land. Theresult would be that the Rent Act cannot be applied to any house whichhas npimrtenanb to it a plot of land however small over and above thesite on which the house stands. If the house and its surroundingsare let as one unit it must remain one unit and neither in common sensenor in law can it be regarded as two units merely because it is capable•of being subdivided later into two.
In my view the only rational test to apply is to ascertain whetherit was the house that was let with the garden ns an adjunct or whetherit was the garden that was let with the house as an adjunct. In decidingthis question great importance must be attached to the intention ofthe parties. If the intention is clear and unmistakable there is inmy view no need to go beyond it. Applying this test to the facts ofthe present case the only- conclusion possible is that it was the housethat was let to the plaintiff. The Rent Act would in consequence apply
{1000) 2 A. E. Ii. 1070.
to the letting. The plaintiff having paid more than the standard rentis entitled to recover the overpayments. I would accordingly set asidethe judgment of the learned District Judge and enter judgment fovplaintiff as prayed for with costs in both Courts.
Appeal allowed
Guxjsekaka, J.—I agree.