§ Clause 5, page 4, line 17, leave out from ("the") to ("and") in line 21 and insert ("Leasehold Property (Repairs) Act, 1938, shall, irrespective of the rateable value of the property comprised in the tenancy, apply to the tenancy as it applies to a lease of which five years or more of the term remain unexpired;").
§ The Commons disagreed to the above Amendment, but proposed the following Amendment in lieu thereof:—
§ Page 4, line 20, leave out from ("to") to ("damages") in line 21, and insert ("bring any action against the tenant for").
§ THE LORD CHANCELLORMy Lords, I beg to move that this House do not insist on the Amendment at page 4, line 17, to which the Commons have disagreed. It refers to an entirely different topic from the three Amendments we have been discussing. It concerns what is to happen if, during the two years' extension, a tenant does not repair as he was obliged to repair under the covenants of the lease, assuming that they were operative during that period. The scheme of the Bill is that during the two years' extension the tenant cannot be turned out on the strength of an allegation that he has failed to carry out his repair covenant, but during this time the landlord has the right to go in and do whatever repairs he thinks necessary, and to recover the amount front the tenant after the two-year period. That is the framework of the Bill.
262 The noble Lord, Lord Llewellin, has just said that there are good landlords, and I readily assent. I must add that there are bad landlords, though I think that the good landlords are greatly in the preponderance. I have often thought, and have sometimes said, that if every landlord had been ready to enforce with rigour the rights which the law gives him, the whole system of land tenure would have been up for review a long time ago. It is idle to pretend that some landlords will not resent most bitterly the provisions of this Bill—they will. And over and above it there is the passing shadow of more permanent legislation which I am convinced any Government, no matter what their colour or complexion, will have to introduce in the very near future. Therefore, it might be of great advantage to a landlord to try to get rid of a tenant now. If he gets rid of him on the ground of not fulfilling a repair covenant, he gets out of the two years' period provided by the Bill; and, further, he puts himself in a better position in regard to future legislation which casts its shadow over him. I am not forecasting what that legislation might be, but he would be dull of wit who did not contemplate that it might be an advantage to be in the position of an occupying tenant. Therefore, it might be to the advantage of a landlord to get a tenant out in order to prevent him from being an occupying tenant when the material time came. I think all your Lordships will agree with that.
With these two inducements, landlords may now be ready to enforce the rigour of the law, instead of behaving as they have behaved heretofore in the great majority of instances. It is common knowledge that whenever a long lease draws to an end, it is almost inevitable that the premises are not in that state of repair which they would have been in had the covenants of repair seen strictly and accurately observed. Your Lordships' Amendment gives a landlord the right to go to the county court to enforce repair covenants, with the result that he may be able to turn out the tenant for not keeping the premises in the appropriate state of repair. It seems to me that that would put the tenant in a great difficulty. Confronted with a lawsuit, which is not a pleasant thing at any time, and with the cost and expenses of a lawsuit, he might 263 agree with his adversary quickly and consent to disadvantageous terms to get out. If I am right in saying that there is now this inducement, which there has not been heretofore, to landlords of the less scrupulous variety, we should be really inviting the bringing of lawsuits alleging, at the end of a long lease, that premises were not in an appropriate state of repair. By so doing we should be putting the tenant to the risk of a lawsuit, and causing complete uncertainty as to whether he had or had not security of tenure.
The Lords Amendment adopted the Leasehold Property (Repairs) Act, 1938, a very beneficial Act, which was passed to deal with this sort of situation. There were unscrupulous landlords, even in those days, and they were minded to try and get tenants out of premises on this very ground of non-repair. The lease might have twenty or thirty years still to run, and if the landlord could have obtained possession, he could have made a very good thing out of it. Therefore, the Legislature of that day said: "Unless you can establish that the lack of repairs is such as to involve serious damage to the reversion, you shall not be in a position to bring an action." It did not apply to the last five years of a lease—and for this very good reason. When it comes to the end of a lease (and we are dealing here with the last few minutes of a lease) any lack of repair involves damage to the reversion. That must be so. It is only if you have a substantial period to run that you can differentiate between those repairs which do, and those which do not, involve damage to the reversion. That was the Act of 1938.
Your Lordships' Amendment takes that Act completely out of its context and seeks to apply it to a case like this, where the lease is coming to an end. I venture to assert to your Lordships that this provision would be likely to produce a crop of lawsuits; would make the unscrupulously-minded landlord anxious to use this method of getting rid of the tenant; and, instead of bringing benefit to the tenant, would subject him to uncertainty and possibly the costs of a lawsuit. It was in those circumstances, considering all this, that we adopted the structure of the Bill which we did: an absolute extension of these two years, subject, of course, to the payment of rent, rates, and so on. But if the 264 tenant does not do his repairs, then the only remedy which the landlord has is to go in and do the repairs himself, and to recover the cost from the tenant at the end of the two years. That is the structure of the Bill, and it is for that reason that I ask your Lordships to accept the view which the Commons have taken, and not to insist on the Amendment to which they have disagreed. I beg to move.
§ Moved, That this House do not insist upon the Amendment to which the Commons have disagreed.—(The Lord Chancellor.)
§ LORD LLEWELLINMy Lords, one thing which will probably be of interest to all your Lordships is that in this case the Commons give no reasons for disagreeing with our Amendment.
§ THE LORD CHANCELLORMay I interrupt the noble Lord? Wherever the Commons put in a further Amendment—and they have put in a drafting Amendment here—it is a rule of the House that they shall give no Reason for so doing.
§ LORD LLEWELLINBut the further Amendment, although it may be appropriate to be brought in at this stage, does not deal with this point at all. Of course, they could not have brought in an Amendment unless they had tagged it on to this one. It seems as if that is what has happened. Under the structure of the Bill, if we do not insist on our Amendment, what will the position be? It will be that a landlord can still get possession and an order for forfeiture or re-entry for non-payment of rent, if the holder of the lease has failed in his covenants to keep the premises insured, or if the premises are being used for illegal or immoral purposes. Putting aside all questions as between landlord and tenant—which rent and the failure to insure certainly are—and looking at it from the general national point of view, one of the most essential things, especially with the housing programme not going at all well, is to keep existing houses in good repair.
What will be the position if the Bill remains as it was when it came to us, and we do not insist on our Amendment? Wherever there is a convenant in a lease putting on the leaseholder the obligation to repair, for two years he will be released from that covenant. Therefore, there is no direct obligation upon anyone. It is true that the landlord may go in 265 and carry out the repairs, but he cannot charge for them at the time; he can only try and get the money back from his tenant—whose obligation it still remains, although he has not to fulfil it—in two years' time. This is all on the basis that the Act will come to an end in two years' time—and I would not put any money on that. We have seen a number of Acts dealing with property of this sort which, although originally intended to be temporary, have been extended from year to year and have been temporary for so long that they are now pretty well permanent. So, whether it be for two years, or two years extending, there will be nobody upon whom the obligation will rest to keep the house property in repair. If we look at the matter from the point of view of the country, it is far more essential that property should be kept in repair than that an individual landlord should get his rent. If the individual landlord fails to get his rent, then he may turn out the tenant; but if, to the disadvantage of the country as a whole, another house, or row of houses, becomes a slum, nothing is done about it.
All we sought to do was to say that the obligation to repair should continue, but that no one, provided he complied with the simple form of giving notice under the Act of 1938, could be turned out, except by leave of the court. Years ago, when I was in practice at the Bar, I used to deal with a number of rent cases, and I found that county court judges, quite properly, were most reluctant to turn people out of their homes unless there had been a flagrant breach of their obligations as tenants of houses. In my view, we should have kept in reserve the sanction that these leaseholders should keep this property in repair, and we should have made it possible for them to be turned out only after a full and impartial hearing by what are recognised to be very good tribunals to deal with matters of this sort. The main purpose behind our Amendment was not to take the landlord's side against the tenant's side, or the tenant's side against the landlord's side. It was to try and preserve in good repair some of the house property in this country (and everybody knows, if he looks at the housing lists in one city after another, how short the supply of houses is), and by this measure to preserve the status quo. We have tried to do that. The Government 266 do not seem to care very much whether these houses are kept in repair or not, otherwise they would have supported this Amendment.
As I have said, however, if your Lordships were to insist upon your Amendments it could be represented in the country as saying: "The House of Lords are all against the tenants; they are all against any kind of modification of some parts of the leasehold system and the Lords are with the landlords"—which indeed we are not, any more than we are with the ordinary, common, everyday people of this country. Bur it could be so represented in the country. We have done our best to try and see that somebody still has an obligation to keep these houses in proper repair. We have failed. Nobody can do more than try to do his best. It is not a question of our putting this Bill off until another Session. I think that that would probably be wrong, and therefore, with great reluctance, because I hate to see more house property going into disrepair—and I believe that that will be the effect—I assent to the suggestion made from the Woolsack this afternoon.
§ 3.13 p.m.
LORD SALTOUNMy Lords, I am sorry on one ground that we are being asked to assent to the noble and learned Viscount's proposal; and that is the ground of dry rot. Dry rot is a serious menace in this country, and has gained a grip on our houses owing to the neglect of requisitioned houses during the war. There is a great temptation for any occupier to neglect dry rot and to pretend not to notice it, because the treatment means such great hardship on the occupier himself. As the noble Lord, Lord Llewellin, has said, the Government have proceeded on a policy of limiting the construction of houses. I am sorry that the noble Lord, Lord Lucas, has left the Chamber, because I remember that in the debate on the gracious Speech he frankly acknowledged that on behalf of the Government. In fact, I think he founded a conundrum which he put to the noble Marquess who leads us on this side. He then gave the answer and, if I may say so, he gave the wrong answer to his own conundrum. However, it seems to me that if the Government are limiting the programme for new houses, they should certainly do everything they 267 can to ensure that existing houses are kept in a proper state of repair. I wish to put on record my great regret that the Government are asking us to forgo this Amendment.
§ 3.15 p.m.
§ VISCOUNT MAUGHAMMy Lords, I did not intend to intervene, but I did not see this Amendment until I came to the House this afternoon. I am intervening in the hope of obtaining from the noble and learned Viscount on the Woolsack an explanation, because it may be that I have not quite understood the effect of the Commons Amendment. It seems to me that the Amendment is doing something which was not intended by the Government. I hope that I am wrong, and if I am I shall be glad to admit it. The effect of the Commons Amendment will be that paragraph (a) of subsection (1) of Clause 5 will read thus:
The landlord shall not be entitled, by action or otherwise, to enforce any right of forfeiture or re-entry in respect of any failure to comply with a term or condition of the tenancy"—that is right enough, but mark these words which come in under the Amendment—or to bring any action against the tenant … in respect of such a failure.
§ LORD LLEWELLIN"For damages": "damages" remains in, I think.
§ VISCOUNT MAUGHAMYes. It was not intended by paragraph (a) to prevent the landlord obtaining payment of rent. Under that paragraph he was entitled to bring an action for rent, but not to turn his tenant out for non-payment of rent. I think that was the intention of the draftsman of this Bill.
§ THE LORD CHANCELLORMay I help the noble and learned Viscount? If he looks at the Bill he will see that there is a proviso to that clause. The result which would otherwise follow from (a) is obviated by the proviso, which says:
Provided that nothing in paragraph (a) of this subsection shall affect forfeiture or re-entry for non-payment of rent. …
§ VISCOUNT MAUGHAMI was going to read that, because that tends to support my idea that a landlord was entitled to bring an action in the county court for his rent, but could not turn the tenant out. The words which the Lord Chan- 268 cellor has just read show that the proviso limits the landlord to a right of forfeiture or re-entry for non-payment of rent. But it may very well be that the landlord does not want anything of the sort. He wants his money. His term may be coming to an end in a few months, and he would not know what to do with the property if he turned the tenant out. To my mind, that is a very serious thing, because with a long lease the last thing which the landlord with an approved ground-rent—to use the technical term—wants to do, is, as a result of his tenant not paying, to go into a house which may have a large number of bedrooms and so forth. If the tenant has any money at all, what the landlord wants is to get £x which is due for rent. That does not seem to me to be provided for in the clause as it stands, and I hope the Lord Chancellor will be able to explain that that is not affected. I think it is affected, and accordingly, with great respect, I suggest to him that the clause wants further amendment if it is to carry out the object which I believe it was intended to carry out. I do not believe it was observed that the first part of the proviso here refers only to forfeiture or re-entry and does not refer to an action to recover a small, or, it may be, a considerable, sum for rent which happens to be due.
§ LORD LLEWELLINMy Lords, may I ask the Lord Chancellor a question? I do not think a landlord sues for damages for failure to pay rent; he sues for the rent, and I do not think that this clause in any way precludes persons from doing that. But I should like to have that confirmed.
§ THE LORD CHANCELLORThat is perfectly right. An action for rent is a different thing from an action for damages. Subsection (1) (a) contains nothing to take away the right of the landlord to bring an action for rent. It does not take away the right of forfeiture or re-entry except in the case of failure to comply with a condition. The proviso says that nothing shall affect the right of forfeiture or re-entry for non-payment of rent. The action for rent has never been interfered with, and therefore there is no need to protect it in the proviso.
§ VISCOUNT MAUGHAMDoes the right remain, in view of this Amendment? I do not want to pursue this matter. If my noble and learned friend the Lord 269 Chancellor is content, well and good, but I should not like the matter to leave this House without somebody in the House who claims to be a lawyer raising the question.
§ THE LORD CHANCELLORI am quite satisfied.
§ On Question, Motion agreed to.
§ THE LORD CHANCELLORNow we come to the Commons Amendment in lieu. It is interesting as showing something of the procedure of the two Houses. Your Lordships may remember on this point, that an Amendment concerning repairs was inserted in this House on the Report stage. On the Committee stage the noble Lord, Lord Macdonald, had moved an Amendment which he correctly described as a drafting Amendment, and we agreed to it. Consequently we had inserted our drafting Amendment of the words. Then an Amendment arose on Report stage and the words went out, and with the words went out the drafting Amendment. When the Bill went back to another place, they compared it with the Bill as it left them. They, of course, would know nothing about our Committee stage. It is an odd rule that neither House gives any Reason for its Amendments—either we to the Commons or they to us. That Parliamentary practice dates far back. I confess that it struck me as odd. I was at great pains to know why it was in this case that the Commons did not give any Reason, and I was informed on inquiry, that it was a practice of Parliament that when an Amendment of this kind is made, it does not contain an explanation. I beg to move that this House do agree with the Commons in the Amendment proposed in lieu.
§ Moved, That this House do agree with the Commons Amendment in lieu.
§ —(The Lord Chancellor.)
§ LORD LLEWELLINI am very much indebted to my noble and learned friend for the explanation which he has given. It certainly struck me as odd that the Commons had not given any Reason for disagreeing with our Amendment. I thought in my ignorance that it was perhaps a lack of courtesy on the part of the other place, but it now understand the reason. we all assented to the Amend 270 ment when the noble Lord, Lord Macdonald, proposed it, and I have no hesitation in agreeing with it now.
§ On Question, Motion agreed to.