Implied periodic tenancy on holding over? Open question in each case.

In Longrigg, Burrough and Trounson v Smith ([1979] 2 EGLR 42, CA (Eng) T refused to give up possession at the end of a fixed term. L tried to persuade T to leave and, when this failed, brought possession proceedings. In the meantime, L accepted several rent payments after the end of the fixed term. The question was whether the payment and acceptance of rent gave rise to an implied periodic tenancy.

The English Court of Appeal held that there was no presumption of an implied periodic tenancy from the fact that rent had been paid and accepted. It was an open question whether this was the right inference to be drawn from the facts of each particular case. Here there was no implied agreement that a new periodic tenancy was to arise.

Ormrod L.J. said:

‘The old common law presumption of a tenancy from the payment and acceptance of a sum in the nature of rent dies very hard. But I think the authorities make it quite clear that in these days of statutory controls over the landlord’s rights of possession, this presumption is unsound and no longer holds. The question now is a purely open question; it is simply: is it right and proper to infer from all the circumstances of the case, including the payments, that the parties had reached an agreement for a tenancy? I think it does not now go any further than that.’

Michael Lower

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