Archive for the ‘Periodic tenancy’ Category

Fetter on landlord’s right to give notice to quit

May 16, 2013

Doe d Warner v Browne ((1807) 8 East 165, 103 E.R. 305) concerned a yearly tenancy. The agreement provided that the lessor could not bring the lease to an end so long as the lessee paid the rent and did not sell any article injurious to the lessor’s business. It was held that it was entirely repugnant to the nature of a tenancy from year to year that the option of determining it should rest solely with the tenant (167, Lord Ellenborough C.J.)

Michael Lower

Both parties must be able to bring a periodic tenancy to an end

May 15, 2013

In Centaploy Ltd v Matlodge Ltd ([1974] Ch. 1) the question was whether an agreement to grant a weekly tenancy ‘to continue until determined by the lessee’ was valid. It was held that it was not since the fact that the landlord had no right to give a notice to quit was repugnant to a periodic tenancy: both parties must have a right to bring the arrangement to an end (Whitford J. at 15)

Michael Lower

Quarterly tenancy determinable ‘at any time’. Did the notice have to expire at the end of a quarter?

May 14, 2013

In Lai Mai-yu v The Attorney-General ([1977] HKLR 382, SC) the Crown granted T a lease for a fixed term of one year and thereafter to be a quarterly tenancy. The lease provided that ‘the term hereby created may be determined at any time by either party giving to the other not less than three calendar months’ notice in writing to that effect.’ The Crown gave three months’ notice in accordance with the lease. The notice did not expire at the end of a quarter. The Crown, by mistake, demanded and accepted rent for a period after the expiry of the notice to quit.

Trainor J. held that when T remained in possession at the end of the fixed term, it did so in accordance with the express terms of the agreement; this was not a case of an implied periodic tenancy as a result of a holding over. Thus, the notice was valid. He went on to say that even if this had been an implied periodic tenancy, it would have been impressed with the provision as to notice and that the words ‘at any time’ in that clause were enough to give validity to a notice to quit that did not expire at the end of a quarter.

Once notice to quit had been given, the lease was at an end. It could not be withdrawn. At most, the demand and acceptance of rent could have been evidence of an intention to create a new lease but the evidence did not point to this as being the intention of the parties.

Trainor J. provides a useful summary of the possible relationships that can arise when a tenant holds over:

‘Holding over simply means that on the expiration of a term the tenant remains in occupation of the demised premises. If he does so without either the consent or disapproval of the owner he is a tenant at sufferance; if it is with the approval of the owner then there is a tenancy at will. If the occupant remains with the consent of the owner and pays him rent there arises between them by a presumption of law a relationship of landlord and tenant. When the rent paid is expressed to be at an annual rate, even though payable by instalments, then the nature of the relationship is presumed to be that of a tenant from year to year and such of the terms of the expired lease as are applicable to a yearly tenancy will apply. It is a presumption, however, that is rebuttable by the circumstances. It is when rent is paid and received that the relationship of landlord and tenant is established and the nature of the relationship can be ascertained, e.g. is the occupant a yearly tenant.’

 

Michael Lower

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

May 10, 2013

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

Periodic tenancy: holding over when rent under fixed term was payable weekly

May 9, 2013

In Adler v Blackman ([1953] 1 Q.B. 146, CA (Eng)) L and T had been parties to a fixed term tenancy. The rent was a weekly rent (not a yearly or quarterly rent payable in monthly instalments). T held over at the end of the term and continued to pay rent weekly. L gave notice to quit calculated on the basis that T had a weekly periodic tenancy. T argued that it had a yearly periodic tenancy. L succeeded.

‘But in a case like the present, where the rent is expressed to be per week, I think when the fixed period has come to an end one should not presume anything but a weekly tenancy, namely, a tenancy for the period in respect of which the rent is expressed. It is one of those cases (and there are many) when the law has to do its best to fill up a gap which has been left by the parties. The parties are obviously in some relationship of landlord and tenant but they have not taken the trouble to write down in black and white what the relationship is. That, I think, is the proper conclusion.’ (Somervell L.J. 150)

Michael Lower

Weekly tenancy: notice to quit

May 2, 2013

Lemon v Lardeur ([1946] K.B. 613, CA (Eng)) concerned a four weekly tenancy of a house. Notice to quit, signed by L’s husband (H), was served on T. The English Court of Appeal found that the notice was invalid for two reasons. First, L had not shown when the tenancy began and so it was not possible to say what date should appear in the notice to quit. Second, H only had a limited authority to act for L and so the notice had to state expressly that it was served on behalf of L.

Commencement date of an implied periodic tenancy when a tenant holds over on the expiry of a fixed term

April 30, 2013

In Croft v William F Bly Ltd ([1919] 2 Ch. 343, CA (Eng)) T held over at the end of a fixed term (Christmas day 1916). The rent during the fixed term was a yearly rent payable quarterly on the usual quarter days. The tenant held over at the end of the term without any express agreement having been entered into as to the terms on which T held over. L accepted a quarter’s rent on the quarter day after the holding over began. The question was as to when the yearly tenancy began. The English Court of Appeal held that the periodic tenancy began when the fixed term ended. Six months’ notice to quit expiring on Christmas day 1917 was valid.

Head landlord’s failure to end periodic tenancy: invalidity of dealings with sub-tenants

April 29, 2013

In Lew See-Chun v Yu Kin-Keung ([1995] HKDCLR 65, LT) L granted a yearly periodic tenancy to T who granted two sub-leases to ST1 and ST2 respectively. L did not bring the periodic tenancy to an end but invited ST1 and ST2 to enter into new sub-leases with L.T did not acquiesce in this arrangement. L may well have been right in his assertion that T did not have a sufficient title out of which to create the sub-leases. Nevertheless, as L had not given notice to quit, T’s lease remained in existence and so did the sub-leases granted by T.

The judgment is interesting as a Hong Kong authority setting out some fundamental propositions:

‘At common law a periodic tenancy is of indefinite duration determinable by notice to quit.’ (68, HH Judge Cruden).

‘In the absence of express provision to the contrary, yearly tenancies arise where rent measured with reference to a year, is paid and accepted.’ (68, HH Judge Cruden)

‘At common law a yearly tenancy, in the absence of agreement, may be unilaterally terminated upon either party giving to the other one half-year’s notice.’ (68, HH Judge Cruden)

There may even be a hint here of an acceptance of the contractual (non-proprietary) lease later recognised by the House of Lords in Bruton.

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.