Jones v Kay, Heron and Frith
| Jurisdiction | Bermuda |
| Judgment Date | 10 March 1989 |
| Date | 10 March 1989 |
| Docket Number | Civil Appeal No.11 of 1988 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
Blair-Kerr, P
da Costa, JA
Roberts, JA
Sir Alastair Blair-Kerr P.
Harvey da Costa J.A.
Sir Denys Roberts J.A.
Civil Appeal No.11 of 1988
Civil Appeal No. 11 of 1988
Civil Appeal No. 11 of 1988
and
and
and
and
Mrs. G. Marshall (Ann Frith Cartwright) for Appellant
Mr. M. Ray (Vaucrosson's) for Respondent
Mrs. G. Marshall (Ann Frith Cartwright) for Appellant
Mr. M. Ray (Vaucrosson's) for Respondent
Mrs. G. Marshall (Ann Frith Cartwright) for Appellant
Mr. M. Ray (Vaucrosson's) for Respondent
Neal v Del SotoELR [1945] 1 KB 144
Hutchinson v JaunceyELR [1950] 1 KB 574
Gladstone v BowerUNK [1960] 3 All ER 353
Rent Increases (Domestic Premises) Control Act 1971 s. 3, 11, 23(1)
Rent Increases (Domestic Premises) Control Act 1978 s. 24
Interpretation Act 1951 s. 16(1)
Landlord and tenant — Rent controlled premises — Status of Rent Commissioners certificate after repeal of 1971 Act — Tenancy not subject to rent control on continuing basis, due to fluctuating levels of maximum ARV
The Rent Increases (Domestic Premises) Control Act 1971 (‘the 1971 Act’) became operative on 10th January 1972. The object of the Act was set out in the Preamble which reads:
‘Whereas it is expedient to make provision for the temporary control of increases in rent of domestic premises, and for security of tenure of such premises and for purposes connected therewith:’
section 3 of the Act read in part as follows:
-
‘3(1) Save as otherwise provided in this section this Act shall apply to every domestic tenancy existing on the 15th day of September 1971, or which may thereafter subsist, ………………..
-
(2) ……………………………..
-
(3) This Act shall not apply to a tenancy of any premises if—
-
(a) ………………
-
(b) the annual rental value of the premises as determined by the current valuation list prepared for the purposes of the Land Valuation and Tax Act 1967, exceeds six thousand dollars.’
-
‘Increase in Rents’ was dealt with in Part III of the Act. Section 11 provided as follows:
-
‘11. No rent payable under any tenancy in being on the 15th day of September 1971, or which may thereafter subsist, shall be increased after that date ……………. save in accordance with the provisions of this Part; and any increase which is not made in accordance with the provisions of this Part shall be irrecoverable by the landlord’.
Section 12 of the Act provided for increases in rent where such increases were agreed between the landlord and tenant, and section 13 specified the procedure to be followed in cases where the landlord wished to increase the rent of the premises. The Commissioner, having considered the landlord's application and the tenant's comments, if any, thereon, if satisfied that an increase in rent ‘would be reasonable in the circumstances of the tenancy’, was empowered, by section 14 of the Act, to issue a certificate to that effect.
Section 23(1) provided as follows:
-
‘23(1) Where any tenancy comes into being after the 15th day of September 1971 (including a new tenancy between the same parties and of the same premises as a previous tenancy) and there has previously subsisted in relation to the premises the subject of the tenancy a previous tenancy which terminated at any time subsequent to the 1st day of January 1969, the maximum rent which may be charged in relation to those premises for any new tenancy shall not exceed the rent payable at the termination of such previous tenancy as increased, where authority to increase has been obtained under the provisions of Part III, under the provisions of that Part:
Provided that in determining the maximum rent payable under the provisions of this section no regard snail be had to—
-
(a) ……………….
-
(b) any increase under the provisions of section 12 where the agreement to an increase was made within a period of six months prior to the entering into of a tenancy to which this section applies.’
-
Section 41 provided as follows:
-
‘41. This Act shall expire at midnight on the 31st day of December 1972, and upon the expiry thereof the provisions of the Interpretation Act 1951 shall apply as if the Act had then been repealed.’
The Appellant is the landlord of the premises ‘Magrada’, Apartment 1, 4 Henryvale, Keith Hall Road, Warwick 7–19. On 26th April 1976, prior to re-letting the premises, he submitted an application to the Rent Commissioner; and, on 29th April 1976, the Rent Commissioner issued the following certificate:
‘Initial Certificate No. 3820.
Reference the application of the landlord dated the 26th day of April 1976, I hereby certify that I am satisfied that an increase of rent from $375 to $450 per month furnished for the premises …………… would be reasonable in respect of any new tenancy.’
It may be noted here that under section 14 the Commissioner was empowered to certify whether he was satisfied that the proposed increase in rent ‘would be reasonable in the circumstances of the tenancy.’
The 1978 Act is broadly in the same terms as the repealed 1971 Act. But whereas section 3(1) of the 1971 Act spoke of the Act applying to every domestic tenancy existing on the 15th September 1971, s.3(1) of the 1978 Act speaks of the Act applying to every domestic tenancy existing ‘on the date of commencement of this Act’. There is a similar change in the phraseology of s.12 of the 1978 Act as compared with s.11 of the 1971 Act.
Section 13, 14 and 15 of the 1978 Act are broadly in the same terms as sections 12, 13 and 14 of the 1971 Act.
Section 24(1) is broadly in the same terms as section 23 of the 1971 Act. It reads:
-
‘24(1) Where any tenancy came into being after the 15th day of September 1971 (including a new tenancy between the same parties and of the same premises as a previous tenancy) and there has previously subsisted in relation to the premises the subject of the tenancy a previous tenancy which terminated at any time subsequent to the 1st day of January 1969, the maximum rent which may be charged in relation to those premises for any such new tenancy shall not exceed the rent payable at the termination of such previous tenancy as increased, where authority to increase has been obtained, either under the provisions of Part III of the repealed Act’ (that is to say the 1971 Act) ‘or under Part III of this Act.
Provided that in determining the maximum rent payable under the provisions of this section no regard shall be had to—
-
(a) ……………
-
(b) any increase under the provisions of section 13 where the agreement to an increase was made within a period of six months prior to the entering into a tenancy to which this section applies.’
-
Subsections (1) and (4) of section 28 of the 1978 Act reads:
-
‘(1) Where a tenant has paid on account of rent ……. any amount in excess of the amount permitted by this Act, then, subject to subsection (4), the tenant who paid it shall be entitled to recover that excess from the landlord who received it or his personal representatives.
-
(4) No amount which a tenant is entitled to recover under subsection (1) shall be recoverable at any time after the expiry of two years from the date of payment.’
On 30th January 1982, the Appellant let the apartment to a Mr. Clive Jones for one year at a monthly rent of $1250. On 7th July 1982 he let the apartment to a Mr. Lawrence Nixon for one year at the same rent ($1250 per month). On 22nd January 1983, he let the premises to a Mr. Geoffrey Titheridge for one year at the same rent ($1250 per month). Finally, on 1st October 1983, he let the apartment to the Respondents for one year at a monthly rent of $1350 per month.
Having agreed to pay $1350 per month, the Respondents later consulted their Attorneys who advised them that the Appellant was not entitled to charge them $1350 per month. On 21st November 1984, the Respondents' Attorneys wrote to the Appellant as follows:
‘It is clear that you, as landlord, have been in breach of the terms of the Rent Increase (Domestic Premises) Control Act 1978 in that:
(a) Contrary to section 25(1)(b) of the Act you failed to provide our client or her co-tenants with a written statement setting out the rent last paid; and
(b) Contrary to section 24(1) of that Act you increased the rent from $1250 to $1350 without obtaining authority to do so.
Our client and her co-tenants are therefore entitled under s.28 of the Act to recover from you the excess amounts which they have paid and this excess will be calculated by deducting from $1350 the monthly payment which was being paid up till 30th June 1980, which monthly payment automatically becomes the new base rent controlled by the Act.
Please, therefore, provide us as soon as possible, with documentary evidence of the amount of monthly rent paid for the month of June 1980, otherwise we shall proceed on the basis that the 29th April 1976 rent of $450 per month still applies.’
In other words, the Respondent's Attorneys accepted that if $1250 was the rent charged immediately before 30th June 1980, that was the new base rent controlled by the Act; and their only complaint at that stage was the fact that the Appellant had not sought the Commissioner's approval for an increase in rent from $1250 to $1350 per month.
To understand the Attorneys reference to ‘the new base’, it may be convenient to refer again to section 3 of the 1971 and 1978 Acts. The object of the Legislature was, of course, clear. It was to give a measure of protection to certain classes of tenants who were perhaps the less affluent members of society. Apparently, the Legislature was in some...
To continue reading
Request your trial