TENANCY APPEAL

Press, Volume LXXXII, Issue 24899, 12 June 1946, Page 3

TENANCY APPEAL

SUPREME COURT DECISION JUDGMENT FOR APPELLANT An appeal by the tenant, Thomas Dalzell - from an order made by Mr Raymond Ferner, S.M.. In favour of Norman s H?. lth for Possession of a tenement at 108 Kingsford street, and about two acres of land, has been allowed in a judgment issued in the Supreme Court by Mr Justice Fair. The appeal raised questions as to the construction of the Fair Rents Act, 1936, said his Honour in his judgment, which were of general importance and application. * *1? 1935. the property was let to the appellant by the respondent’s predecessor in title at a rental of £1 2s 6d a week, presumably without any agreement as to the term of the tenancy,” said his Honour. "At the time he obtained the tenancy and entered into occupation the appellant was working as a day labourer/ and acquired the property as a home for himself, his wife, and family of five children. At that time the land itself was *a wilderness,’ and the house had been 'unoccupied.' At the commencement of the tenancy the appellant worked the land in his spare time, and kept on it a cow, a pig, and fowls, all for purely domestic use. About seven years ago, that is, in 1939, he commenced to sell some of the produce from the land.” He then began to enlarge his market garden activities, continued his Honour, and since Christmas, 1945, had been away from the land for only a few days at casual work. In the last three years he had made £BO a year net profit from these activities, and now cultivated the land as a market garden. Notice to Quit "The respondent acquired the ownership of the property, subject to the existing tenancy, in December, 1945. He gave the appellant one calendar month’s notice to quit, expiring on March 8, 1946, and the acceptance of this notice is admitted by the appellant. Upon the latter failing to give up possession, the respondent commenced an action in the Magistrate’s Court at Christchurch claiming to recover possession of the land and dwelling house. The action was heard ‘ on April 9, 1946, when it was contended for the appellant that the subject matter of the tenancy constituted a ‘dwelling-house’ within the meaning of the Fair Rents Act, 1936. The respondent contended that the tenancy was outside the scope of the Fair Rents Act, having regard, in particular, to the use which the appellant was making of the land 'concerned. "On April 16 the learned Magistrate delivered an interim judgment, holding that the house and land were not a dwel-ling-house within section .2 of the act, and on May 15 made an order for possession' forthwith in favour of the respondent, but granted the appellant leave to appeal on the ground that an important question of -law was involved. "However, I have come to the conclusion that the mote extensive use of the land, in the later years, for the growing of produce for sale, does not take the tenement out of -the definition if it was originally within it.

Meaning of Word “Premises” "The counsel for the respondent (Mr R. A. Young) contended that the word 'premises’ in section 2 of the act does not include an area of land such as the two acres under consideration in the present case. Tire section excludes from the meaning of dwelling-house ‘any land other than the site of the dwelling house or a garden or other premises in connexion therewith.’ It seems to me on a fair reading of the section in its context, that the word 'premises’ would include a horse paddock used in conjunction with the house, certainly where trie horse was used for pleasure purposes, and a cow paddock where the produce of the cow was used for domestic purposes even though some of it were sold, as well as an entrance drive to stables, or paddock. “It seems clear to me, therefore, that the word 'premises’ does include land used in these ways in connexion, that is in conjunction with a dwelling-house. The facts as found, and particularly the keeping of a cow and pigs, show that originally, and for some four years or more, the land was used solely for domestic purposes. The fact that it was a 'wilderness' when let, and that the appellant was in regular employment as a day labourer on wages, negatives any inference that it was intended other than for residential purposes. Section 2 of the act makes it clear what the Court has to consider is the purpose for whiqh the premises were let at the commencement of the tenancy.” Protection by Fair Rents Act Regarding an alternative suggestion by Mr Young that the sale of produce from the land deprived the premises of the protection of section 2 of the act, his Honour said that if the whole of the premises, including the dwelling-house, had been let or used for business purposes, they would not remain a dwellinghouse within the meaning of the act. That was clearly not the case, though. The land had been originally within the protection of the Fair Rents Act, and the onus of proving that it was not now protected rested with the respondent. This he had failed to do. . "Moteover, the word 'premises m section 6 of the Fair Rents Amendment Act, 1942;, must bear the same meaning as in section 2 of the principal act, and the fact that part of the land is used for business or trade is definitely excluded as a ground for not holding premises are not within the meaning of the act. “The appeal is therefore allowed, with costs and disbursements, and the case remitted to the Magistrate with a direction that the order for possession should be refused and judgment entered accordingly,” concluded his Honour.