OCCUPANCY OF A DWELLING.

Taranaki Daily News, 16 December 1919, Page 6

OCCUPANCY OF A DWELLING.

WHO GIVES NOTICE TO QUITT In the Supreme Court yesterday, Hia Honor the Chief Justice, Sir Robert Stout, gave reserved judgment as follows in the ease of Clemow and T. Fairhall v. John Cock, a claim for possession of land and a dwelling. The plaintiff in the action, Bertha Jane Fairhall, agreed to lease the land mentioned to R. C. Clemow, but no agreement was drawn in writing. The lease, which expired on August Ist, 1918, was for a term of one year. Clemow had the option of extending the lease for a further term of one year, and though he did not exercise it, he remained in possession and continued to pay the rent, and therefore became a tenant at will under section 16 of the Property Law Consolidation Act, 1880. Such tenancy would be determinable at the will of either party by one month's notice in writing. .. . . Clemow possessed no authority to sublet to Cock for a term of three years, as stated by Cock, and as there was no document as to the sub-teinancy, Cock was therefore only a tenant at will, whosfe tenancy could be determined by a month's notice. His landlord, Clemow, served such a notice upon him for the purpose of determining the tenancy, The defence raised was that Clemow had surrendered his lease, and was therefore not j entitled to serve the notice terminating j the tenancy. . . The judgment con-1 tinues: I am of opinion that the evi- • dence shows there was no actual surrender, and that what occurred was that Clemow and Miss Fairhall agreed that possession was to be given up by Clemow to the latter. Miss Fairhall was unaware of any tenancy by Cock, who declined to leave, and Clemow therefore could not give up possession in the terms of his agreement with Miss Fairhall. Clemow then notified Cock to leave, which he had r. right to do, and Cock could not deny that right unless it could be shown that Clemow had surrendered. The fact that an agreement to lease to Ansford was not. registered, "but was held in esero until 1 Cock gave up possession, showed that the • lease was not to operate until Cock had left the premises, and that Clemow still

remained the tenant of Miss Fairhall until that occurred, "ft am therefore of opinion," continued His Honor, "that Clemow was within his rights in giving notice to Cock to determine the tenancy, that the notice operated, and that Cock, not having acted in accordance with it, is practically a trespasser." He therefore, gave judgment against Cock for the plaintiff, Clemow. Defendant was ordered to pay the costs of the action, with witnesses' expenses •ind disbursements. Costs were fixed on the lowest scale. Mr. C. D. Croker appeared for plaintiffs, and Mr. Ronald H. Quiiliam for defendant.