Fuller v Happy Shopper Markets Ltd and another
Fuller v Happy Shopper Markets Ltd and another
- 2001
- Estates Gazette [2001] 25 EG 159-164(6) .
ChD 14 February 2001. The claimant tenant (F) occupied a shop with residential accommodation, which he held on a 21 year lease granted by the defendant landlord (H). In January 1994 the shop was severely damaged by a storm. F continued to pay the full rent until September 1995, but then ceased his payments. Under the insurance provisions of the lease only 30-40% of the rent was payable while the shop was in disrepair. F made no demand for repayment. In February 1997 H levied distress for arrears of rent, and the bailiffs sold the goods in the shop, allegedly undervaluing them. F claimed the distress was unlawful, as H was bound to return earlier rent payments mistakenly made. The court considered whether H should have been notified of F's claim beforehand, and whether A had an immediate right to repayment at the date of distress. The Human Rights implications were also considered. "Held": On the proper construction of the settlement agreement the damages claimed were to be ignored; F was entitled to immediate repayment of the overpayment without any prior demand for such payment; the legal right of set-off cannot be offset against rent arrears where a landlord is exercising his remedy of distress; and that F was entitled to invoke the doctrine of equitable set-off, the self help remedy of distress interfering with F's human rights under the European Convention of Human Rights Art 1 and Art 8.
DISREPAIR
DISTRESS
EQUITABLE SET-OFF
CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 1
FULLER V HAPPY SHOPPER MARKETS
OVERPAYMENT
RENT
RENT ARREARS
ChD 14 February 2001. The claimant tenant (F) occupied a shop with residential accommodation, which he held on a 21 year lease granted by the defendant landlord (H). In January 1994 the shop was severely damaged by a storm. F continued to pay the full rent until September 1995, but then ceased his payments. Under the insurance provisions of the lease only 30-40% of the rent was payable while the shop was in disrepair. F made no demand for repayment. In February 1997 H levied distress for arrears of rent, and the bailiffs sold the goods in the shop, allegedly undervaluing them. F claimed the distress was unlawful, as H was bound to return earlier rent payments mistakenly made. The court considered whether H should have been notified of F's claim beforehand, and whether A had an immediate right to repayment at the date of distress. The Human Rights implications were also considered. "Held": On the proper construction of the settlement agreement the damages claimed were to be ignored; F was entitled to immediate repayment of the overpayment without any prior demand for such payment; the legal right of set-off cannot be offset against rent arrears where a landlord is exercising his remedy of distress; and that F was entitled to invoke the doctrine of equitable set-off, the self help remedy of distress interfering with F's human rights under the European Convention of Human Rights Art 1 and Art 8.
DISREPAIR
DISTRESS
EQUITABLE SET-OFF
CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 1
FULLER V HAPPY SHOPPER MARKETS
OVERPAYMENT
RENT
RENT ARREARS