Business premises — Fixed term leases — Notices required by lease to determine on third anniversary of commencement date — Notices given by tenant to determine one day before third anniversary — Whether notices valid — High Court judge finding in tenant’s favour — Appeal allowed — Judgment for landlord
The defendant landlord (“Eagle Star”) demised the second-floor office premises and a car park at Brook House, 98/99 Jermyn Street, London SW1, to the plaintiff tenant (“Mannai”). The term was for 10 years “from and including the 13th January 1992” and was subject to clause 7(13) of the leases which provided: “The tenant may by serving not less than six months notice in writing … such notice to expire on the 3rd anniversary of the term commencement date …”. It was agreed that the third anniversary of that date was January 13 1995. The tenant gave notice to “determine the lease on 12th January 1995”. The tenant contended that although the notices referred to January 12, it was clear that their effect was to determine the leases on January 13, being the only date on which they could have determined. Alternatively, the notices did not take effect until that moment of time which was both the last moment of January 12 and the first of January 13, so that they did determine the leases on January 13. The judge found for the tenant on the second of the two grounds.
Held The landlord’s appeal was allowed.
1. The tenant’s argument on the first ground had to be rejected. The court could not accept that the date inserted in the notice was not essential to its operation and was contrary to authority: see Hankey v Clavering [1942] 2 KB 326.
2. Thus, if a notice clearly and specifically purported to determine a demise for a fixed term on a date not authorized by the lease, the date could not be corrected simply because: (1) it was clear what the correct date ought to have been; (2) that the wrong date was inserted by a slip; and (3) that the recipient might guess, or even be certain, that that was what had happened.
3. An exception could only be made where the date specified was an impossibility either because it had passed or because it was, on some other ground, inconceivable that it was the date intended. In this case the date given in the notice did not fall within such exception.
4. The second submission, if correct, would result in a notice to determine a fixed term on January 12 taking effect either on that day or on January 13. There was no authority to support such a proposition. The two moments of time, albeit separated by an immeasurable stroke of midnight, had always been treated as separate.
5. In deciding that point in favour of the tenant, the judge at first instance had relied on Sidebotham v Holland [1895] 1 QB 378. However, that case was concerned with a special rule for determining periodic tenancies, whether yearly, weekly or for any intermediate period, at common law. This allowed determination at the end of the period by a notice to quit of the requisite length either on the last day of the period or on the anniversary of the commencement date. It was not authority for the proposition that a notice to determine a fixed term could take effect as a notice to determine on the last day of the period, when the anniversary of the commencement date was specified.
Nicholas Patten QC (instructed by Rosling King) appeared for the appellant landlord; John Cherryman QC and Kenneth Monroe (instructed by Manches & Co) appeared for the respondent tenant.
