Tenant allowed into possession during lease negotiations: periodic tenancy or tenancy at will?

In Javad v Aqil ([1990] 2 EGLR 82, CA (Eng)) L and T were negotiating a fixed term lease. L allowed T into possession during the term and accepted rent. The negotiations failed. The question was whether T was a periodic tenant or a tenant at will. The court emphasised that it depended on the objective intention of the parties. If T was alleging that a periodic tenancy existed he would have to show it. Here there was no evidence to show that the parties intended a periodic tenancy. T was a tenant at will.

Nicholls L.J. said:

‘The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply. Thus if one party permits another to go into possession of his land on payment of a rent of so much per week or month, failing more the inference sensibly and reasonably to be drawn is that the parties intended that there should be a weekly or monthly tenancy. Likewise, if one party permits another to remain in possession after the expiration of his tenancy. But I emphasise the qualification “failing more”. Frequently there will be more. Indeed, nowadays there normally will be other material surrounding circumstances. The simple situation is unlikely to arise often, not least because of the extent to which statute has intervened in landlord-tenant relationships. Where there is more than the simple situation, the inference sensibly and reasonably to be drawn will depend upon a fair consideration of all the circumstances, of which the payment of rent on a periodical basis is only one, albeit a very important one. This is so however large or small may be the amount of the payment.’ (at 84)


Michael Lower


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