Case No.:

AC-REV-195-1958

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Landlord and Tenant—Rent Restriction Ordinance. s. 20 (1)—Waiver of statutory conditions by accepting rent

Defendant tenant sub-let plaintiff landlord’s house without plaintiff’s cons Plaintiff knew of the sub-letting for six months and accepted rent. The quest of whether this amounts to waiver is a question of fact: this case amounts. waiver.

Judgment

(COURT OF APPEAL)*

IBRAHIM OSMAN EL ARABI v. HASSAN AHMED EL HAKIM

AC-REV-195-1958

Advocate: Hassan Koheil ………. for the applicant

    M. A. Abu Rannat C.J. November 6, 1958 :— the action was brought by the landlord (plaintiff) against the tenant (defendant) seeking an. order for re-possession. After the first issues were framed, and the parties head it was agreed that the decision in the case depends on one issue, namely whether the sub-letting of the house to a third person was without the consent of the landlord.

To enable the court to make such a decision, it added on August 1958, two issues namely:

" 1. If so was such consent waived by agreement or conduct ?

 “2. If so is such waiver binding on plaintiff ?

Applicant’s advocate contends that these two issues were without his consent and were tried without hearing evidence on them.

The answer to this contention is this. On August 28, 1958, advocates for plaintiff and defendant appeared and the two newly-fl issues were read to them. Evidence covering these two issues was in heard and the last issue is one of law only. Instead of asking the c hear additional evidence, if any, both advocates promised to file submissions in writing. This shows that both advocates considered. their case was closed and applicant’s advocate cannot raise this point the Court of Appeal. So much, for technical objections.

As to the merits of this case, the real issue is whether the estopped from claiming recovery of possession on the ground that tenant sub-let the premises without his consent.

Court: M. A. Abu Rannat C. J.

Rent Restriction Ordinance, s. 20 (1). rcads:

“With effect from July 1. 1953 it shall be a condlt1on of every tenancy whether statutory or otherwise

that the tenant shall not assign or sub-let or otherwise part with the possession of the premises or any part thereof without the consent of the landlord in writing ."’

It is admitted by the tenant that he did not obtain the consent of the landlord in writing when he sub-let part of the house to a third person

The next point to be decided is whether acceptance by a landlord from a statutory tenant with knowledge of the statutory tenant’s breach of the covenant amounts to waiver. This point has been solved in Oak Property Co., Ltd. v. Chapman [ 1947] KB. 886. It was decided, inter alia, in that case as follows:

“The principles of waiver applicable to a common law tenancy where the landlord continues to accept rent from his tenant after acquiring knowledge of the latter s breach of covenant are applicable in part also to a statutory tenancy. The question whether in any given case the acceptance of rent by a landlord from a statutory tenant with knowledge of the latter’s breach of covenant is an unequivocal act of affirmation of the tenancy is one of fact for the county judge to determine. and if he decides the question affirmatively then the ordinary legal consequences would prima facie follow”

The facts show that the plaintiff knew of the sub-letting for more than six months and accepted rent.

This amounts to waiver of the breach and the application is summarily  dismissed .