Archive for the ‘Periodic tenancy’ Category

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.

Yearly tenancy: notice to quit expiring on anniversary of commencement

April 18, 2013

Sidebotham v Holland ([1895] 1 Q.B. 378, CA (Eng)) concerned a yearly tenancy that began on 19th May 1890. On 17th November 1893, L served notice to quit on 19th May 1894. There was a question as to whether the notice was invalid since it expired on the anniversary date of the term rather than on the expiry date of a period (18th May). It was held that the notice was valid.

A.L. Smith L.J. made the following suggestion:

‘I would point out that the plaintiff has only himself to blame for the difficulties he is in in this case. Had he added the words which are very ordinarily inserted in a notice to quit, “or at the expiration of the year of your tenancy, which shall expire next after the end of one half-year from the service of this notice,” and which are inserted to avoid such a point as that now taken, all would have been in order; but the words are not there.’ (389)

In the absence of express agreement (and leaving aside feast day tenancies)  a yearly tenancy can be ended by a six months’ notice to quit.

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.)

Tenant holding over on expiry of fixed term: rent expressed to be weekly

April 15, 2013

In Ladies’ Hosiery and Underwear Limited v Parker ([1930] 1 Ch. 304) T held over at the end of a three year lease. The rent was paid weekly and was expressed as a weekly rent. During the holding over, no rent was paid to L and there was no agreement that L was to have a new lease of any type. There was no tenancy from year to year.

Did L’s acquiescence combined with receipt of the rent (had rent been received) give rise to a yearly tenancy? No, since the rent was expressed to be weekly and was payable weekly (328 – 9 per Maugham 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.

Implied obligation to use property in a tenantlike manner

October 1, 2012

In Warren v Keen ([1954] 1 Q.B. 15, CA (Eng)) a landlord had to spend money to repair defective internal and external walls where the disrepair was the result of fair wear and tear. The landlord sought to recover the cost from a weekly tenant on the basis that periodic tenants are under a duty to keep property wind and watertight. The landlord failed both because it was denied that weekly tenants were under any such duty and because, anyway, even such a duty could not cover the damage in this case.

Denning L.J. said:

‘Apart from express contract, a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the same thing, a tenantlike manner … But what does “to use the premises in a tenantlike manner” mean? It can, I think, best be shown by some illustrations. The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it: and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.’ (20)

A periodic tenant’s notice to quit is not a disposition

January 29, 2011

When a periodic tenant gives notice to quit, the tenancy comes to an end by effluxion of time. The notice is not a disposition of property.

Newlon Housing Trust v Alsulaimen ([1999] 1 AC 313, HL) concerned a weekly periodic tenancy. The tenancy was in the joint names of a husband and wife. The wife gave notice to quit. It was held that the giving of notice was not a disposition of property for the purposes of section 37(2)(b) of the UK’s  Matrimonial Causes Act. A notice to quit given by a periodic tenant does not dispose of anything. The landlord simply becomes entitled to possession because the lease has come to an end by effluxion of time.