Estoppel and waiver in relation to the time established by statute for application to court

Kammins Balrooms Co Ltd v Zenith Investments (Torquay) Ltd ([1971] AC 850, HL) concerned the lease renewal procedure in Part II of England’s Landlord and Tenant Act 1954. At the end of its lease, the tenant had served a request for a new tenancy under section 26. The landlord served (in time) a counter-notice indicating that it would oppose the grant of a new tenancy. The tenant then sought to protect its rights by making the application to court envisaged by section 29(3) but did so earlier than the time specified in the section. Section 29(3) states that no application for a tenancy shall be entertained unless made not less than two nor more than four months after the tenant’s request. The tenant’s application was made earlier than this. There was some correspondence between the parties’ solicitors and between them and the court concerning the application. It was not until after the four month period had expired that the landlord told the tenant that it intended to take the point that the court could not entertain the application because it had been made too early.

The House of Lords held, by a majority, that despite the apparently clear wording of the statute, the landlord did have the power to waive its right to object to the early application and allow the court to entertain it. Lord Diplock based this conclusion on a purposive (rather than literal) interpretation of the provision. The provision regulated the rights of private parties inter se and the party who could benefit from the provision could waive it (at 881).

The House of Lords also held, however, that the landlord had not waived its right to object to the early application. Lord Diplock thought that this waiver would be a type of estoppel and said:

‘the party estopped by acquiescence must, at the time of this active or passive encouragement, know of the existence of his legal rights and of the other party’s mistaken belief in his own inconsistent legal rights. It is not enough that he shall know of the facts which gave rise to the legal right. He must also know that he is entitled to the legal right to which those facts give rise.’ (at 884).

The landlord knew the date of the application but there was no evidence to show that he had appreciated that the application had been made too early before the four month deadline had passed.

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