The Appellant appealed against part of the decision of DJ Hart giving summary judgment against the entirety of his claim. Ed Hicks represented the Respondents in their application before DJ Hart and in defending the appeal before HHJ Baucher. The Appellant’s appeal failed in its entirety.
The case related to a building in Mayfair divided into two units; a maisonette situated on part of the ground and the upper floors and a “showroom” situated on part of the ground floor and in the basement. Both units had been let on 999 year leases in 1995. The Respondents were assignees of the lease of the upper maisonette. When the maisonette was originally let the upper floors comprised the first, second and third floor, above which was the roof. The Lease of the maisonette provided that the demise was “all that maisonette situate on part of the Ground, First, Second and Third Floor of [the building] . . . which flat shall be deemed to include . . . the roof thereof”. In an agreement for lease pre-dating the demise, the freeholder had given the Respondents’ predecessor in title consent to construct a new opening from the third floor to the roof for the purpose of constructing a roof terrace. In 2000-2001 the Respondents’ predecessor in title had constructed what was in essence a loft extension with a roof terrace to form a new fourth floor.
The Appellant had acquired the freehold for no consideration in 2011, almost immediately began pre-action correspondence and in 2012 issued wide ranging proceedings claiming as against the Respondents:
(a) Arrears of rent and insurance premiums;
(b) Forfeiture of the Lease, injunctive relief and damages on the basis that the construction of the fourth floor by the Respondent’s predecessors in title and certain works carried out by the Respondents in 2008 constituted breaches of various clauses of the Lease;
(c) Possession of the fourth floor and mesne profits on the basis that that the fourth floor was not included within the premises demised by the Lease and that the Respondents (and their predecessors in title) had been trespassing by reason of its construction and use, in particular on the basis that the reference to “roof” within the demise meant “ceiling”.
The Respondent applied to strike out the claim, alternatively summary judgment. DJ Hart allowed the application, granting the Respondents summary judgment against the Appellant, finding in particular:
(a) That the rent and insurance premiums had been paid;
(b) As to forfeiture and damages for breach of covenant:
i. That the forfeiture action was misconceived as the Appellant had not complied with the requirements of s. 168 Commonhold and Leasehold Reform Act 2002 as the Lease related to residential premises and no determination by any court or tribunal had been made that a breach of covenant had occurred and no admission of any breach had been made;
ii. In any event, a Mr C Rapose acting as agent of the Appellant’s predecessor as freeholder, had knowledge of the construction of the fourth floor and had collected ground rent, waiving any forfeiture;
iii. That the Respondents could not as a matter of law be liable for damages for breach of covenant by their predecessor in title;
iv. That the Appellant had no evidence upon which he could assert that the works in 2008 went beyond repair works so as to amount to a breach of covenant;
v. However, the argument that the Appellant himself had waived forfeiture by demanding rent was held not suitable for summary judgment as the Appellant appeared to have reserved his position in some respect.
(c) As to the claim in trespass:
i. The claim in damages was unsustainable in relation to the period prior to the Appellant acquiring the freehold as he could not in any event establish any loss until that time;
ii. That in any event the definition of the Premises in the Lease included the roof;
iii. Relying on Davie v Yadegar  1 EGLR 71 and Haines v Florensa  1 EGLR 73, the demise included the air space above the roof and the roof space;
iv. The argument that “roof” could be construed as “ceiling” had no prospect of success. The Appellant relied in part on the definition of the retained premises, which stated that it included “the main structural parts of the building . . . including the roofs . . . (but not . . . any part of the Premises)” to suggest that the external roof was intended to be retained. DJ Hart rejected this assertion observing that in the draft lease annexed to the agreement for lease the word “roofs” in the definition of the retained premises was struck through and that there may have been a clerical error in failing to strike the word out of the lease. In any event, she held that the word “roof” in the demise could not on its natural and ordinary meaning be construed as “ceiling”, nor would that be consistent with the agreement for the lease which plainly contemplated that the Respondents’ predecessor would construct and use a roof terrace, which she could not do if she did not have title to the roof.
The Appellant appealed to the circuit judge and obtained permission to appeal on the following limited basis:
(1) In relation to the Appellant’s claim for damages for breach of covenant, in particular on the basis that certain breaches of covenant (not to do or permit anything at the premises that would increase the insurance premium, and not to obstruct windows, nor to permit new windows, lights or openings) were continuing breaches for which the Respondents could be held liable, and that there was a triable issue in relation to the 2008 works carried out by the Respondents themselves;
(2) In relation to the Appellant’s claim for damages for trespass (but curiously not the claim for possession on the basis of trespass), arguing in particular that “roof” in the demise referred to the roof of a bay window situated at the rear of the maisonette on the 1st and 2nd floors, not the roof of the building as a whole and that DJ Hart was wrong to consider the draft lease;
(3) In relation to the Appellant’s claim for contractual interest; and
(4) In relation to the finding that any right to forfeit the Lease has been waived by reason of Mr C Rapose receiving rent as agent for the Appellant’s predecessor as freeholder, on the basis that whilst Mr C Rapose had held himself out as agent of the Appellant’s predecessor as freeholder, there was no evidence that he had sufficient authority to constitute him agent so as to bind the freeholder.
The Respondents cross appealed on the basis that any waiver had been forfeited by the Appellant’s own demands for rent, and that even if they were in some way equivocal that was nonetheless sufficient to amount to a waiver of forfeiture.
The appeal was heard over two days in April and May before HHJ Baucher who gave judgment on 5th June 2014.
In relation to the appeal in relation to breach of covenant she held:
(a) That the case was not pleaded on the basis of continuing breaches of the material clauses of the Lease and no application to amend had been made;
(b) She found in any event that as the Respondents had not constructed the fourth floor they could not be liable for a breach of the covenant not to do or permit anything at the premises that would increase the insurance premium, and in any event there was no evidence that the premium had increased at all;
(c) She also found that the covenant relating to construction of windows could not be construed so as to give rise to a continuing breach.
(d) She also upheld DJ Hart’s findings that there was no evidence for any breach of covenant by reason of the 2008 works.
In relation to trespass she referred to ICS v West Bromwich  1 WLR 896 as to the proper approach to construction. She also referred to Cockburn v Smith  2 KB 119 relied upon by the Appellant as authority that a top floor flat will not normally include the roof. However, she distinguished the case as in Cockburn v Smith there was no reference to the roof in the demise. The arguments in relation to the draft lease were not pursued, on the basis that it now appeared that there was a factual dispute as to whether or not the draft lease was indeed the one referred to in the agreement for the lease and therefore one that had been contractually agreed. She held:
(a) On the natural and ordinary construction of the words of the demise, the “roof” referred to the roof of the building. The words “the roof thereof” clearly related to the preceding words which referred to the building; to construe the clause otherwise would be a nonsense.
(b) This construction is consistent with the clause in the agreement for the lease which clearly contemplated the tenant using the roof;
(c) It is consistent with the repairing obligations in the Lease, importantly that the landlord was not responsible for repair of the “roof of the premises”, which could not mean the roof merely over a bay window; repair of the roof of the premises was the tenant’s responsibility
(d) It is consistent with the scheme of the repairing covenants in the Lease of the maisonette and the lease of the ground floor and basement premises. Under the Lease, the tenant of the maisonette is only liable to contribute 50% of the landlord’s repair costs. But the lease of the ground floor and basement premises provided that the tenant thereof was not obliged to contribute anything towards the cost of repair of the roof. Accordingly if the roof of the building was retained by the landlord, and therefore fell within his repairing obligations, he would only be able to recover 50% of the costs of repairs. If the roof of the building was part of the maisonette, it was down to the tenant of the maisonette to repair it;
(e) It is consistent with the landlord’s dealings with the tenant. A schedule of dilapidations served on behalf of the landlord required the tenant to carry out repairs to the roof both of the building as a whole and the bay window.
(f) She noted that the reference to “roof” in the singular should be read as “roofs” as required by a further clause of the Lease which provided that singular includes the plural and vice versa.
(g) She held that the reference to “roofs” in the definition of the retained premises was inconsistent with the rest of the lease and that in all likelihood it should have been deleted.
(h) She noted that references to the demised premises comprising only part of the ground, first, second and third floors in the land registry title pre-dated the construction of the fourth floor and were not determinative;
(i) She referred to correspondence at the time of the sale of the maisonette to the Respondents in which their predecessor had attempted to seek a deed of variation from the landlord to expressly include the fourth floor in the demise, which the Appellant contended was an unequivocal recognition that the demise did not include the fourth floor. However, construed as a whole, and in particular in the absence of consideration being offered, the correspondence was intended to express the reality that the fourth floor was part of the demise, rather than to effect a transfer.
She therefore found that “the roof thereof” means “the roof of the building”, that the demise included the roof space and air above it, and that the Respondents have every right to be in and use the fourth floor as being part of the demise, upholding DJ Hart’s decision.
As to waiver of forfeiture, she held that it was no leap of faith for DJ Hart to conclude that Mr C Rapose was the agent of the freeholder. In particular:
(a) HHJ Baucher noted that there were innumerable documents in which Mr C Rapose had held himself out as such, in particular demanding rent over a period of 8 years, requesting an inspection of the premises, and purporting to give the freeholder’s consent to the construction of the fourth floor.
(b) She noted that Mr C Rapose had demanded insurance payments. As the arrangement of insurance being the responsibility of the landlord the only way in which Mr C Rapose could have known the amount to demand was through the landlord.
(c) The only evidence advanced by the Appellant was contained in an e-mail from Mr C Rapose in which he claimed to have been acting for the tenant of the ground floor and basement premises. She held that this evidence was not a true reflection of the position and DJ Hart was entitled to find as much.
(d) The freeholder had never independently demanded anything of the Respondents’ predecessors in title
(e) The freeholder had allowed Mr C Rapose to correspond from the freeholder’s address
(f) The freeholder had in fact received the money sought by Mr C Rapose from the Respondents’ predecessors
(g) Mr C Rapose’s conduct could not be explained as a frolic of his own; his conduct only made sense if he was an agent.
Accordingly HHJ Baucher held that Mr C Rapose was the agent for the freeholder, and as he had collected rent as such DJ Hart was entitled to find that there had been a waiver of any act of forfeiture by the previous freeholder.
In any event, the cross appeal was allowed as it was clear that the Appellant himself had requested payment of rent, that a landlord cannot reserve his position in relation to forfeiture whilst demanding rent, and accordingly by demanding rent there was a waiver of any forfeiture by the Appellant’s own conduct.
The claim for contractual interest also failed because payment had been tendered by the Respondents to the previous freeholder’s address but was returned, and payment had been tendered to the Appellant prior to service of his s. 48 notice but the cheques had been returned. The Respondents having done all that was required of them to pay and accordingly the defence of tender succeeded.
The oral argument on the appeal focussed primarily on the trespass claim and the construction of the Lease. The arguments were also addressed at considerable length in skeleton arguments. Despite the point being hotly contested, HHJ Baucher was prepared to treat the point as one suitable for disposal on a summary judgment/strike out application, and in fact did not merely find that the Appellant’s claim was fanciful, but actually made a substantive decision as to the true construction of the Lease. Dealing with the point in this way has avoided a vastly more expensive trial of the matter.
The appeal did raise an interesting point of law. The Appellant had initially claimed both possession of the fourth floor on the basis of trespass and mesne profits (damages for wrongful occupation). DJ Hart gave judgment against the Appellant in relation to the entirety of his claim, necessarily rejecting both forms of relief sought. However, the Appellant only appealed the dismissal of the damages claim, not the possession claim. There is some suggestion in the case law that the Appellant could not do so. A claim for damages for trespass can only normally be brought by a person in possession of the land in question. See Clerk and Lindsell at 19-10. That rule meant that lawful owners out of possession could not sue for damages, so the law developed the concept of trespass by relation; a legal fiction by which the party having the right to possession was, upon entry, deemed to have been in possession from the date when his right of entry accrued. The courts did not treat the right of possession as equivalent to possession; they still required a claimant seeking mesne profits to go through the form of entry or making a formal claim. A claim for mesne profits can therefore be joined with an action for recovery of land. However, it is questionable whether it can be brought against a trespasser in possession if it is not so joined. If so, the Appellant would not have standing to pursue a claim merely for mesne profits whilst not appealing the dismissal of the claim for possession on the basis of trespass. HHJ Baucher considered that there was nothing in the point as if the Appellant was correct about the construction of the lease then the Respondents could not be regarded as in occupation. Ed comments, “I am not convinced that this adequately deals with the point, but it made no difference to the outcome of the case given the findings in favour of the Respondent. A trespasser who enters and expels the person in possession will obtain possession and can in fact pursue an action in trespass of their own against the evicted person if that person submits to the expulsion by failing to expel the intruder within a reasonable time, divesting themselves of possession (albeit not necessarily a right to possession); see Clerk & Lindsell at 19-17 to 19-19 and the cases discussed therein. The point is rather anomalous, and possibly highly academic; why would anyone seek merely damages and not possession against a trespasser in possession of their land? But as this case demonstrates, it may have a relevance in practice and a modern authority on the point might be welcome”.
The question of whether Mr C Rapose was in fact the agent of the Appellant’s predecessor as freeholder might have been considered a matter suitable for trial, after all it is ultimately a dispute of fact. However, HHJ Baucher referred to the judgment of Lewison J in J D Wetherspoon plc v Van de Berg & CO Ltd  EWHC 1044 (Ch) at  in which he noted that whilst the court must not conduct a mini trial, that does not mean that the court must take at face value everything that a claimant says in his statements before the court; it may be clear that there is no real substance in the factual assertions made, particularly if contradicted by contemporaneous documents. The Appellant’s case in relation to agency is an example of just such a situation.
The Appellant’s counsel observed that it would be a “rum thing” if a person could bind a “principal” merely by holding himself out as the “principal’s” agent. There was no evidence of the freeholder having expressly held Mr C Rapose out as his agent, which would have put his authority beyond doubt. However, there was overwhelming circumstantial evidence pointing towards Mr C Rapose having authority as agent. Indeed, it would be an even “rummier thing” if a landlord could stand by for eight years whilst someone purports to act as his agent, operates out of the freeholder’s address, demands rent on the freeholder’s behalf from the tenants which he pays on to the freeholder, arranges insurance for the building, demands access to the tenant’s premises in purported exercise of the landlord’s entitlement, serves a schedule of dilapidations on the tenants requiring them to repair their premises, and purports to give the freeholder’s consent to major works of improvement, and years later credibly deny that the person was in fact his agent. The overwhelming inference is that the person did such things because he was the agent of the landlord. Even if he did not initially give the “agent” actual authority, by his conduct he has probably given implied authority, almost certainly held the “agent” out as having authority to give rise to an estoppel preventing his denying the “agent’s” authority, and by accepting rent he has almost certainly ratified the “agent’s” acts constituting him agent.
It was in any event no good the Appellant complaining that there was “no evidence” that the previous landlord had given Mr C Rapose authority to act on his behalf, without also considering the merit of the case that the Appellant was actually advancing. If the Appellant was to seriously resist the conclusion that Mr C Rapose was the agent for the previous freeholder, he had to advance a coherent case backed by at least some evidence, or the prospect of some evidence being adduced at trial, that explained the circumstantial evidence. The evidence advanced by the Appellant was patent nonsense, was clearly contradicted by the contemporaneous documentation, and was therefore a case that could be rejected on a summary judgment or strike out application. The case constitutes a warning to respondents to applications for summary judgment or strike out to ensure that they are able to advance or point to credible evidence in support of their case; they cannot bank on the court simply holding that factual disputes should be disposed of at trial.