Periodic tenancies and freedom of contract

Re Threlfall ((1880) 16 Ch D 274, CA (Eng)) concerned a lease at a yearly rent of GBP 800 payable in equal quarterly installments.  The landlord had the right to enter at any time after three months from the date of the lease without giving notice. The lease was contained in a mortgage deed (the mortgagee granted the lease to the mortgagor and the re-entry provision reflected this context). The question was whether this was a periodic tenancy or a tenancy at will. The English Court of Appeal held that there was a periodic tenancy despite the re-entry provisions.

Cotton LJ said:

‘But I know of no law or principle to prevent two persons agreeing that a yearly tenancy may be determined on whatever notice they like. There is freedom of contract in this respect. ‘ (at 281 – 2).

Michael Lower

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