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122
He contended that the owner and the owner only i.e., Mr. Milne,
being liable for the expenses incurred, it could not be presumed that any
Act of Parliament gave authority for taking away the freeholders' property
to satisfy the owner's debt.
I think that, whether or not the freeholders have good grounds for
being aggrieved, the answer is that S. 28 of the Housing Town Planning
Act requires the owner and the owner only as defined by the Act to be
served with the Notices and that has been done. The Local Authority is
not required to serve any other persons who may have an interest in the
premises with Notices.
Therefore a charge on the premises having been created by the execution
of the work by the Local Authority and the owner having made default
in payment—so far as these freeholders are concerned the only question
is—are they persons having a proprietary interest in the premises? They
have a substantial interest, for the prpperty reverts to them on the termination
of the lease in 45 years—and in the meantime provided that the
property is kept in a habitable condition they will presumably receive their
ground rent, therefore the charge on the premises includes a charge on the
freeholders interest in proportion to its value. If the lease had been a
999 years lease (as in the Birmingham Corporation case) it would not have
been necessary to bring the freeholders before the Court as their interest
was nominal only and absolutely valueless, but it cannot here be said that
the freeholders' interest is not of appreciable value and that the putting
of the premises into habitable repair is not for their benefit.
Lastly Mr. Kean adopted the same line of argument on the part of
the Mortgagees but admitted that their position was identical with that
of the Freeholders.
I quite agree.
Obviously they are persons interested in the premises and the charge
thereon affects the interest of the Mortgagees as well as the Freeholders and
Leaseholders. It is still open to any of these parties to pay off the charge
before the sale is effected.
The plaintiffs having established that they are entitled to the relief
asked for I think the difficult question which will arise is what is the proportionate
value of the several interests of the parties concerned. That
however is no concern of the plaintiffs. It is a matter for the defendants
to settle between themselves.
The Plaintiffs therefore are entitled to a declaration asked for namely—
that the sum of £200 3s. Od. together with interest thereon at £5 per
cent, from 13th November 1920 until payment thereof is a charge on the
premises and that such charge is entitled to priority over the Mortgage
charges and encumbrances if any.
They are also entitled to the relief asked for under Paragraphs B, C,
and D of the Statement of Claim.
Costs.
Order to hand over to Plaintiff all deeds and documents.