Landlord and Tenant Act 1954, Part II — Provision in section 29(2) that a tenant’s application for a new tenancy, following a notice by the landlord under section 25, shall not be entertained unless the tenant has duly notified the landlord that he would not be willing at the date of termination to give up possession — Whether a letter from the tenant indicating his willingness to discuss with the landlord the purchase of the freehold constituted a notice of unwillingness to give up possession — Whether a subsequent discussion between the parties, at which the landlord mentioned a price for the freehold and the tenant said it was too much, could be construed as a waiver by the landlord of the notice required by section 29(2) or as estopping him from taking the point as to its absence — Held, upholding decision of deputy county court judge, that the letter did not constitute the notice required by section 29(2) and that the facts did not support submissions as to waiver or estoppel — The letter was consistent with the tenant’s wishing to retain possession only if he could do so as freeholder — As to waiver or estoppel, the landlord had made it clear that he wanted the procedure under the 1954 Act to go ahead before discussing the purchase of the freehold — Appeal dismissed
This was an
appeal by the tenant, Bayram Mehmet, against a decision of Judge Russell at
Clerkenwell County Court dismissing the tenant’s application for a new lease on
the ground that he had not served the notice of unwillingness to give up possession
required by section 29(2) of the 1954 Act. The landlord was Timothy Mark
Dawson.
P Engelman
(instructed by Stanton Goldman & Co) appeared on behalf of the appellant; S
R Powles (instructed by Price Williams & Ostler) represented the
respondent.
Giving
judgment, EVELEIGH LJ said: This is an appeal from the judgment of His Honour
Deputy Judge Russell on a tenant’s application for a new lease under the
Landlord and Tenant Act 1954. The learned deputy judge held that he could not
entertain the application because notice in writing to the effect that the
tenant was not willing at the date of the termination of the lease to give up
possession of the property comprised in the tenancy had not been given as
required by section 29(2) of that Act.
The lease was
due to expire on June 24 1982. The landlord gave the usual form of notice on
October 3 1981, and the tenant gave no notice in writing unless, as has been
argued in this court, a letter written on November 23 1981 constitutes such a
written notice.
The details
are fully set out in the judgment of the learned deputy judge, who referred to
the letter of 23rd which it is contended constituted written notice. As appears
from the judgment and as is conceded in this court, counsel abandoned the
contention that that letter amounted to written notice. The argument proceeded
in the court below on the basis that what had transpired between the landlord
and the tenant amounted to a waiver or estoppel and that the landlord was
therefore not entitled to rely on the absence of written notice.
Briefly, the
facts which are relied upon to support the argument of waiver and estoppel are
that in the spring of 1981 the landlord mentioned to the tenant that the lease
would be expiring and that he would be serving the appropriate notice in due
course. There was a discussion as to the rent that the landlord would require
for a new lease and a figure approximately double that of the existing rent was
mentioned. Later the parties met and the tenant said to the landlord that he
was really interested in buying the freehold. The landlord said to the tenant
that he would be prepared to discuss that matter after the notice under the
Landlord and Tenant Act had been served. As I have said, the notice was served
on October 3. The tenant did nothing about it. He did, however, on November 23
write this letter to the landlord:
Dear Timothy,
Having received your notice, last month, I would like to discuss the shops
freehold with you. If we come to an agreement, then we will continue from
there. Hoping to see you soon.
The landlord
did not in fact reply to that letter, but some time at the beginning of
December he did discuss the question of the freehold and said that he wanted
£40,000 for it, which the tenant declared was far too much for him. So nothing
came of the negotiations for the purchase of the property, but towards the end
of December the tenant’s solicitors in writing notified the landlord that they
would make an application for a new lease.
As I say, in
the court below it was argued that in those circumstances the landlord, by
representing his willingness to discuss the purchase of the freehold, waived
the necessity of written notice. Alternatively, it is said that in the
circumstances he is estopped from taking the point as to the absence of written
notice. I deal with these points first because they were the ones argued in the
court below.
As to waiver
and estoppel I propose to take them together. I cannot see that the facts of
this case come anywhere near supporting an argument under either of those two
heads. The view of the facts which seems to me to be the correct one was that,
far from making any representation and far from inducing the applicant (the
tenant) to proceed upon the basis that the landlord would not insist upon a
written notice and that the landlord would not set in motion the procedure
under the Landlord and Tenant Act, the position is quite the contrary. The
landlord was saying to the tenant: ‘I hear you when you say that you wish to
buy the freehold, but let us first get on with the Landlord and Tenant Act
procedure and I will serve the notice, and thereafter we can discuss the
question of the purchase of the freehold.’
Once it is put that way, it seems to me that any argument in any greater
detail on this point is quite out of the question.
The learned
deputy judge went into the matter in rather more detail than I have done. I
would adopt everything he says in respect of those two arguments. So one is
then left with the argument that has perhaps occupied most time in this court,
which was the subject of an amended notice of appeal, namely, that the letter
of November 23 in the circumstances of the case did constitute written notice.
In support of that argument Mr Engelman submitted, as indeed I would accept,
that no formal notice is prescribed in order to comply with section 29(2) of
the Act. It is sufficient that there is some writing which conveys to the
landlord the information that the tenant is unwilling to give up possession at
the end of the tenancy. The question is whether or not this letter did so.
We have been
referred to a case of Lewington v The Trustees of the Society for the
Protection of Ancient Buildings reported in The Times on February 12
1983*. In that case the landlord and the tenant had not only discussed the sale
of the property but had agreed upon the price, namely £46,500 subject to
contract. There was correspondence about the proposed sale and the landlord’s
solicitors sent a draft contract to the tenant for her approval. About a month
later, the landlord’s solicitors wrote to the tenant’s solicitors enclosing a
section 25 notice terminating the tenancy. They also referred to the draft
contract and the tenant’s solicitors replied acknowledging the notice and
accepting service. Subsequently they wrote to the landlord’s solicitors
returning the draft contract and saying that they were enclosing the tenant’s
part of the agreement, duly signed, together with a cheque representing 10%
deposit. The landlords then wrote to confirm that they were holding the
tenant’s part of the contract and the deposit cheque. In that case this court
came to the conclusion that the correspondence in the case made it absolutely
clear that the tenant had no intention of giving up possession. It made it
clear that she was considering the purchase of the property and that
continuance of the negotiations was sufficient evidence that she did not intend
to leave it.
*Editor’s
note: Now fully reported at (1983) 266 EG 997, [1983] 1 EGLR 80.
Each case must
of course depend upon its own facts. In that case the parties had gone to great
lengths in their negotiations and indeed had reached a position where it was
being agreed between them that the tenant would be retaining the property. This
case is far removed on the facts from that case. The question we have to
consider is whether this letter of November 23 constitutes in all the
circumstances of the case notice in writing of the intention not to
give up possession. I, for myself, cannot see that it does constitute such
notice.
The position
as to the purchase or the proposed purchase was rather vague. It was quite
consistent with the tenant taking the view that he only wanted to retain
possession of the property if he could do so as the freeholder. There is
nothing in the letter or the other attendant circumstances of the case to say
that that is the wrong view to take of the position. At the very highest it
could be put in the appellant’s favour, it seems to me that this letter gives
no indication one way or the other. That of course is not enough to constitute
notice, but one goes a stage further. This argument was abandoned in the court
below. It was not developed in the way in which the evidence of the applicant
was presented to the court. It is not surprising in those circumstances that
the landlord did not go into the witness box to give evidence in the case. In
those circumstances I find it quite impossible to say that the evidence is such
that this court can come to the conclusion that the letter of November 23 in
all the circumstances constituted written notice. That being so, I would
dismiss this appeal on all the grounds upon which it has been presented.
SIR DAVID
CAIRNS agreed and did not add anything.
The appeal
was dismissed with costs, the order for costs not to be enforced against the
appellant without the leave of the court and not to be enforced against the
Legal Aid Fund before the expiration of 10 weeks, during which the Law Society
was to have liberty to apply.
