Archive for the ‘notice to quit’ Category

Service of notice to quit on agent living at the property

April 26, 2013

In Tanham v Nicholson ((1871 – 72) L.R. 5 H.L. 561, HL) L served notice to quit on T’s daughter who lived at the property. She could be thought of as T’s agent. She never told her father of the notice and it was destroyed soon after service. She knew of the contents of the notice. It was held that the notice had been validly served. The agent living at the property has implied (ostensible?) authority to accept service.

Construction of notice exercising break right

April 25, 2013

Trafford MBC v Total Fitness (UK) Ltd ([2002] EWCA Civ 1513, CA (Eng)) concerned a six year lease. L had the right to bring it to an end at any time by giving two weeks’ notice. L purported to exercise this right on 8 October 2001 by giving 17 days’ notice. The notice confirmed ‘for the avoidance of all doubt’ that it would take back possession at the end of 24th October 2001. T contended that the notice was fatally flawed: it gave two inconsistent expiry dates and T could not know which was intended (T relied on the ‘rule’ in Lester v Garland to the effect that the date of giving the notice is to be excluded from the expiry period so that it was not clear whether the notice was intended to take effect on the 24th or the 25th October).

T failed. It was open to the draftsman to expressly provide that the date of giving the notice was to be included in the 17 day period ( to expressly disapply the Lester v Garland approach). In effect, this was what had been done by making it clear ‘for the avoidance of all doubt’ that the notice would take effect on 24th October 2001. The notice was clear and valid.

Break clauses and notices to quit: validity determined by reference to principles of contractual interpretation

April 24, 2013

In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd ([1997] A.C. 749, HL) two leases contained break clauses giving T the right to terminate the lease by a notice to expire on 13 January 1995. By mistake, the notice to quit referred to 12 January 1995. The question was whether the notice was valid or not. By a majority, the House of Lords held that it was.

The majority emphasised that notices exercising break right belong to the same class of legal document as notices to quit. The modern approach is to interpret a notice in the same way as any other contractual document would be interpreted. An older, stricter approach that saw these documents as being a class apart and as demanding strict compliance for validity (Hankey v Clavering) was disapproved.

Lord Steyn made the following points:

1. This was not a case in which the relevant break clause made the inclusion of certain content in the notice a condition of validity;

2. In general:

‘The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. and in considering this question the notices must be construed taking into account the relevant objective contextual scene.’ (768)

3. The fact that a notice exercising a break right has only one purpose is relevant to the interpretation of the notice:

‘Prima facie one would expect that if a notice unambiguously conveys a decision to determine a court may nowadays ignore immaterial errors which would not have misled a reasonable recipient.’ (768)

4. Break clauses and notices to quit ‘belong to the general class of unilateral notices served under contractual rights reserved.’ (768) Even if they contain an error they may be valid if they are sufficiently clear and unambiguous to leave a reasonable recipient in no doubt as to how and when they are intended to operate.

In this case, a reasonable recipient would have appreciated that the tenant wished to determine the lease on 13 January.

‘The question is not whether 12 January can mean 13 January: it self-evidently cannot. The real question is a different one: does the notice construed against its contextual setting unambiguously inform a reasonable recipient how and when the notice is to operate under the right reserved? As Lord Hoffmann has observed we no longer confuse the meaning of words with the question of what meaning in a particular setting the use of words was intended to convey.’ (772)

Lord Steyn cautioned against drawing the wrong conclusion:

‘I do not accept the extreme argument of counsel for the tenant that whenever a notice to determine refers to a break clause, and whatever the other circumstances of the case, the notice must be valid. That goes too far. One can easily conceive of much weaker cases where the test posed above could not be satisfied.’ (773)

Lord Hoffman, too, emphasised that the normal principles of contractual interpretation had to be applied and that according to these the notice in the present case was clearly valid.

Lord Clyde said:

‘The standard of reference is that of the reasonable man exercising his common sense in the context and in the circumstances of the particular case. It is not an absolute clarity or an absolute absence of any possible ambiguity which is desiderated. To demand a perfect precision in matters which are not within the formal requirements of the relevant power would in my view impose an unduly high standard in the framing of notices such as those in issue here. While careless drafting is certainly to be discouraged the evident intention of a notice should not in matters of this kind be rejected in preference for a technical precision.’ (782)

Clerical errors in notice exercising right to give notice to determine a lease

April 23, 2013

In Carradine Properties Ltd v Aslam ([1976] 1 W.L.R. 442) a lease included a break clause giving the landlord the right to determine the lease on September 27 1975. By mistake, the notice (served in 1974) purported to terminate the lease on September 27 1973. The question was whether or not this slip invalidated the notice. It was held that the notice was valid. As a matter of construction (having regard to the relevant factors as they applied in this case) it was clear that the notice sought to exercise the right to terminate the lease on September 27 1975. Goulding J. thought that the same approach to construction would be equally applicable to a notice to quit in relation to a periodic tenancy.

Goulding J. explained the test as follows:

‘I would put the test generally applicable as being this: “Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?” Applying that test, if applicable, to the present case, I think the notice would be saved because the tenant receiving that notice and knowing the terms of the lease must have seen there was a mistake, as it would not say “1973” in 1974. Once that is accepted, it is obvious that the notice is for 1975 and not 1973. In no ordinary circumstances would a reasonable tenant knowing the terms of the lease take the notice as being other than for 1975. It therefore seems to me that if one applies the test I have mentioned, then the notice would be saved.’ (444)

A little later:

‘In an option clause the requirement is that a party must strictly comply with the condition for its exercise. If the condition includes the giving of a particular notice, it seems to me that the logical first approach is to interpret the notice, looking at the words and applying legal principles to their construction, and then ask whether it complies with the strict requirements as to exercise of the option. If that is right, I think a benevolent approach could be applied in this case, as in the Duke of Bedford’s case (1796) 7 Term Rep. 63, because reasonably read by a reasonable tenant the mistake is obvious on the face of it, and there is no doubt what the mistake was. Therefore one interprets the notice as asserting an intention to  determine in 1975. It is true that if whoever made the mistake had typed 1976 instead of 1973, the error would probably have been incurable because although the tenant might suspect there was a slip, it might be that the landlord did intend 1976, not knowing or understanding his rights under the lease. In such a case the tenant would be entitled to disregard the notice but because a past date was given in the notice it is insensible and therefore an authority such as the Duke of Bedford’s case is in point.’ (446)

Notice to quit brings tenancy to an end at midnight on the last day of the period

April 22, 2013

Crate v Miller ([1947] K.B. 946, CA (Eng)) concerned a weekly tenancy that began on a Saturday. The landlord served notice to quit on 5th July to expire on Friday 19th July. The question was whether this was valid or whether the notice should have brought the lease to an end on the Saturday. It was held that the notice was valid. Somervell L.J. approved Sidebotham v Holland which he saw as authority for the view that a periodic tenancy must be brought to an end at midnight on the last day of the term (948).

The notice in this case used the formula suggested by A.L. Smith L.J. in Sidebotham v Holland ‘or at the end of the next complete week of your tenancy from the date hereof’. If applied in this case, it would have resulted in insufficient notice having been given. The point had not been taken, however.

Notice to quit brings a periodic tenancy to an end

April 19, 2013

Clarke v Grant ([1950] 1 K.B. 104, CA Eng) concerned a yearly tenancy. The landlord served notice to quit but then accepted rent paid in advance. The question was whether the landlord was therefore unable to rely on the notice to quit. The English Court of Appeal held that this was not the case and that the notice still brought the lease to an end:

Lord Goddard C.J. said:

‘if a notice to quit has been given in respect of a periodic tenancy such as a yearly tenancy, the result is to bring the tenancy to an end just as effectually as if there had been a term which had expired. Therefore, when a landlord has brought a tenancy to an end by means of a notice to quit, a payment of rent after that date will only operate in favour of the tenant if it can be shown that the parties intended that there should be a new tenancy. A new tenancy must be created.’  (105 – 106)

There was no evidence of an intention to create a new tenancy here.

Periodic tenancy: restriction on right of landlord to serve notice to quit

April 17, 2013

Breams Property Investment Co Limited  v Stroulger ([1948] 2 K.B. 1, CA (Eng)) concerned a quarterly tenancy. The landlord was prohibited from serving notice to quit for three years unless it needed the property for its own occupation. This was held to be a valid restriction that was not repugnant to the nature of a periodic tenancy.

The landlord had assigned the reversion. Another question was whether the successor was bound by the restriction. It was held that the successor was bound by the restriction. It had reference to the subject matter of the lease for the purposes of section 142 of the Law of Property Act 1925.

Periodic tenancy: landlord and tenant can have different notice arrangements

April 16, 2013

In Allison v Scargall ([1920] 3 K.B. 443) L granted T a yearly tenancy. Either side could determine the tenancy by giving 6 months’ notice to expire on the following 6th April. L also had the right to serve notice to quit after sale of the property with the notice to take effect on the 6th April following the sale. This was held to be a valid arrangement:

‘I know of nothing which prevents parties, in entering into an agreement for a tenancy from year to year, from stipulating that it should be determinable by a notice to quit shorter than the usual six months’ notice; or that the notices to quit to be given by the landlord and the tenant respectively should be of unequal length; or that the tenancy should be determinable by the one party only by notice to quit and by the other party either by notice to quit or in some other way.’ (449 – 450, per Salter J.)

Proprietary estoppel and notice to quit

October 23, 2012

In CKW Co Ltd v Secretary for Justice ([2005] HKEC 340) the Government had granted CKW a two year tenancy. At the end of the two years, there was to be a quarterly tenancy terminable by three months’ notice on either side. At the end of the fixed term, the Government gave notice to terminate the lease. CKW refused to give up possession and argued that the Government was estopped from serving notice to quit until it needed the land for a proposed development. The estoppel was based on a representation alleged to have been given by a Government official to the effect that notice would not be given until the Government needed the land for its proposed development.

It was accepted on all sides that proprietary estoppel could have the effect contended for by CKW. CKW’s claim failed because it failed, as a matter of fact, to establish any of the elements of proprietary estoppel were present in this case.

Fixed term lease but landlord required to give one month’s notice to quit

March 29, 2012

林玉芬 v 姜滿盛 ([2012] HKEC 236) concerned an intended fixed-term lease for a term of three months expiring on 28 February 2011. The lease required the landlord to give one month’s notice to quit. The Lands Tribunal held that, on its true construction, this meant that the landlord would not be entitled to recover possession even after the expiry of the fixed term unless notice was duly served. L purported to serve a notice to quit by registered post on 9 March 2011. This attempt failed and the letter containing the notice was returned to the sender. The tenant paid rent for March and April. An application to court to recover possession was served on the tenant on 11 April 2011. The Lands Tribunal held that the application to court was premature since the landlord had no right to possession on 11 April; the landlord had not yet served the necessary notice to quit. It could have been argued that in fact no lease was created since there is a clear doubt as to certainty of term (no certainty as to when the landlord would serve the notice). This would probably have made no practical difference since the court could have given effect to the arrangement as a contractual licence (at least this is the current English view).