case 13,2003 承租人与房东之间的争议

Go West Ltd. v Spigarolo & Anor [2003] EWCA Civ 17 (31 January 2003)

在PILL大法官、POTTER大法官、MUNBY法官之前。

主要的判决理由是由Munby法官给出。

租约争议—转让租约—房东拒绝—Landlord and Tenant Act 1988—法定通知义务

案情大致是：

The claim was brought because the tenant had on 27 February 2001 entered into an agreement with a third party to assign the lease, subject to consent to assign being granted by the landlords. A substantial sum was to be paid by the third party under the agreement. The agreement provided that if no licence was granted by 27 August, the third party could rescind. By reason of the consent being withheld, the assignment did not proceed and the tenant suffered loss.

主要问题在于：

i) First, whether, the effect of the letter of 30 May 2001 was to bring to an end the reasonable time allowed to the landlords by section 1(3) of the 1988 Act.

ii) Second, whether, the parties were in any event proceeding after 30 May 2001 on the basis that there was either a continuing application or a renewed application (or applications) for licence to assign.

Munby法官回顾了以往的权威观点。首先，在Norwich Union Life Insurance Society v Shopmoor Ltd [1999] 1 WLR 531一案中，Sir Richard Scott V-C 说过：

The landlord has a statutory duty to the tenant within a reasonable time to give consent, except in a case where it is reasonable not to give consent. In judging whether it is reasonable not to give consent, the position must, in my view, be tested by reference to the state of affairs at the expiry of the reasonable time. If, at that time, the landlord has raised no point and there is no point outstanding which could constitute a reasonable ground for refusal of consent, then it seems to me that the landlord's duty is positively, as expressed by section 1(3), to give consent. The question whether the case is one "Where it is reasonable not to give consent" ought, in my judgment, to be tested by reference to the point at which the reasonable time for dealing with the application has expired. If at that point it cannot be shown that it is reasonable for the landlord not to give consent, then the statutory duty of the landlord is to give consent, the court can so declare and the tenant can, in my judgment, proceed on the footing that the assignment in question would not constitute breach of a covenant not to assign without consent."

也就是说：it is not open to the landlord to seek to justify a refusal of consent by reference to matters not raised with the tenant prior to the expiry of the reasonable period. 如果房东没有在一段合理的时间内书面给出拒绝的理由，他将不能在法庭上依靠这些理由。

在另一个案件：in Footwear Corporation Ltd v Amplight Properties Ltd [1999] 1 WLR 551中，Neuberger法官持相同的看法：

if the landlord does not within a reasonable time give his reasons for refusing consent in writing, then it is not open to him to rely on those reasons in court for justifying his withholding of consent.

接着他说;

Given that the Act specifically requires consent or refusal of consent in writing, I find it hard to see how one can resist the conclusion that, if I am right so far, reasons given orally are not sufficient.

也就是说，口头给出理由是不充分的。因为立法（section 1(3)(b)）已有明确要求，这要求谅必有其原由。所以，Munby法官再次重申：it is not … open to a landlord to put forward reasons justifying the withholding of consent if those are reasons which were not put forward … in writing within a reasonable time.在一段合理时间内书面给出理由不可或缺。Munby法官也引用Richard Scott爵士对1988年法的评价：

The Act was intended to remedy the state of affairs in which a landlord, by his dilatory failure to respond to an application for consent to an assignment or to subletting, could cause substantial financial damage to the tenant without the tenant having any remedy for that damage. A tenant might lose a valuable property transaction because of the landlord's failure to deal expeditiously with the application for consent. It is clear that it was an intention of the Act to remedy that state of affairs. The Act creates a statutory duty requiring landlords to attend promptly to applications for consent to assignments, or underletting or parting with possession of premises comprised in a tenancy where there is a covenant not to do those things without consent."

书面要求是为了给承租人一些救济，当他有意转让租约，而房东不愿书面给出理由，这种拒绝对承租人毕竟是一个损失。在1988年法下，房东有法定义务立即对承租人的转让请求做出反应。

他认为;

By taking the final step that has to be taken within the reasonable time allowed by the Act the landlord himself necessarily brings that time to an end. If the landlord is able to, and does, serve the written notice required by the Act further time cannot reasonably be required: by sending the notice the landlord shows that he does not need any more time, so any further time would be unreasonable. By the very act of serving the written notice required by section 1(3)(b) the landlord is, in effect, saying "I have had enough time" – what the 1988 Act calls a reasonable time – "to do what I have to do, I do not need any more time, so here is my notice". By his act the landlord shortens what might otherwise be a reasonable time.

法官宣布：

I accept that, in principle, there can be, though I think the court should not be astute to find that there has in fact been, a variation agreed between the parties and which is binding on them if there has been consideration. But the simple fact is that, on any sensible reading of the correspondence, there was quite plainly no such agreement here.

Nor, in my judgment, can Mr Dutton establish any case of waiver, estoppel or release. Again, the simple fact is that there was never an unequivocal withdrawal either by the landlords of the refusal in the letter of 30 May 2001 or by the tenant of its assertion that it was entitled to rely upon the fact that the refusal was unreasonable. It is impossible to extract from the correspondence factual support for any waiver, estoppel or release.

他提到了一个海事案件：Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068. 这涉及有关合同更改、弃权、禁反言的判断标准。这案件关系到准备就绪通知书的效力。他同意承租人的观点：

Mr Cole says that what happened here was merely that the tenant sought to avoid the risk, expense and delay involved in litigation by attempting to persuade the landlords to change their minds before resorting to litigation; that by acting in this way the tenant did not release the landlords from their breach of statutory duty on 30 May 2001; that the landlords remained in breach of statutory duty after 30 May 2001; that nothing that happened after that date expunged the breach or absolved the landlords from its consequences; that the tenant had asserted and maintained the position that the landlords' refusal on 30 May 2001 was unreasonable and that it was contemplating proceedings; and that when the attempt to persuade the landlords to change their minds was unsuccessful, the tenant was entitled to commence proceedings based on the breach of statutory duty on 30 May 2001. I agree entirely with Mr Cole's analysis.

他判承租人胜诉。