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are a charge on the premises. That is what has occurred in this case and
therefore the Plaintiffs are entitled to the declaration asked for i.e., that
the sum of £200 3s. Od. is a charge on the premises.
Then there was the question as to the meaning of a charge on the
premises.
That was discussed and defined in the case of Birmingham Corporation
v. Baker. 17 Ch. D. 782—a case under the P.H. Act—when the charge
was for expenses incurred by the Local Authority for sewering and other
works and such expenses were to be a charge on the premises. It was held
that—the work having been executed for the benefit of the property—the
charge was not a charge on the interest of any particular owner, but on
the total ownership i.e., on the respective interest of every owner for the
time being in proportion to the value of his interest, and not merely a
charge on the interest of the person on whom the Statutory notice has to
be served.
See also Lord Justice James' Judgment in Tottenham Local Board of
Health v. Rowell (C.A.) 15 Ch. D. 378. Therefore the charge is a charge
on the whole premises and involves interests of all those persons who have
been brought before the Court and who have a proprietary interest in the
premises namely the Freeholders, Leaseholders and Mortgagees.
Then there was the question whether this charge took priority over
any other incumbrance there might be on the property. The property is
mortgaged to the Westbury Property Co., Ltd.
There appears to be no doubt that the charge takes priority over that
Company's mortgage because it includes a charge on the interest of the
Mortgagees.
That was clearly stated by Mr. Justice Warrington (as he then was)
in the case of the Croydon Rural Council v. Betts (1914); 1 Ch. at p. 875
in which he said “it has been decided that so far as the charge is a charge
under S. 257 (i.e., Public Health Act) it is a charge on the premises and
not on the interest of the person who is in receipt of the rents and profits
of the premises when the works are completed.
It is a charge on the whole of the premises so that while the owner
may be a Mortgagor in possession it is not a charge on the equity of redemption
in the premises but on the entire premises. It is a charge on the
property of the Mortgagee as well.”
Therefore it takes priority of the Mortgage. Then there seems to be
no doubt that the only way in which a charge can be enforced is by sale.
See Tennant v. Trenchard. 14 Ch. App. 537.
Lord Hatherley at P. 542 said “it seems on the whole settled that if
there is a charge simpliciter not a mortgage or agreement for a mortgage
then the right of the parties having the charge is sale and not foreclosure.”
See also the case of Re Owen (1894) 3 Ch. p. 220. There the owner of
a charge endeavoured to make out he was entitled to foreclosure.
Mr. Justice Stirling said "it is quite clear where you have a charge,
however that charge is created, whether by Act of Parliament or other
instrument the owner of the charge is entitled to have the property sold
unless the persons interested redeem by paying it off." The plaintiffs then
in this case are entitled to the order for Sale they ask for.
Mr. St. John Field for the freeholders contended that the order could
not be made against the freeholders on the grounds that no Notice was
ever given them that the work was to be done, and that they never had
the opportunity of doing the work and that they derived no benefit from
the work which was done.