Landlord and Tenant Act 1954–Application for new tenancy of premises used as a restaurant–Decision on preliminary point–Request by tenant for new tenancy–No application made to the court following request within time-limits laid down in section 29(3) of Act–Subsequent request purported to be made by tenant for a new tenancy, this time followed by an application to the court within the time-limits–Whether second request valid–Held, following Stile Hall Properties Ltd v Gooch, that it was not–First request set machinery of Act in motion–Existing tenancy terminated immediately before date specified in request for beginning of new tenancy–Not possible to withdraw first request and substitute second request and timely application–Tenant loses all rights under Act–Appeal from county court judge dismissed
This was an
appeal by the tenant, Polyvious Polyviou, from a decision of Judge Hutton at
Bristol County Court in favour of the landlord, George Andrew Seeley, relating
to restaurant premises in St Paul’s Road, Bristol, occupied by the tenant.
Judge Hutton held, on a preliminary issue under the Landlord and Tenant Act
1954, that the tenant’s application for a new tenancy was invalid, the request
on which it was based not being a valid request.
Roderick
Denyer (instructed by Church, Adams, Tatham & Co, agents for Leaman, Sparks
& Co, of Bristol) appeared on behalf of the appellant; James Wigmore
(instructed by Donald Bennett & Legat, of Bristol) represented the
respondent.
Giving the
first judgment at the invitation of Megaw LJ BROWNE LJ said: This is an appeal
from a decision of His Honour Judge Hutton given at the Bristol County Court on
May 1 of this year. He gave judgment for the respondent landlord on a
preliminary point arising under the Landlord and Tenant Act 1954. The appellant
is the tenant (and I shall so call him); and the landlord is the respondent in
this court. His Honour Judge Hutton held that the tenant’s application for a
new tenancy under that Act was out of time and invalid and that his request for
a new tenancy on which the application to the court was based was not a valid
request. The result of that decision on the preliminary point is that the
tenant has lost his right to apply for a new tenancy under the 1954 Act.
The history of
this case is as follows. By a lease dated March 4 1977 for three years from
July 16 1976 the present landlord granted to a Mr Serrat a lease for three
years of the premises with which we are concerned, which are premises in St
Paul’s Road, Bristol, which were and are used as a restaurant. By an assignment
and other operations that lease became vested first in the present tenant and
his brother and later in the tenant himself alone. In those premises the tenant
carried on, and carries on, the business of a restaurant. That tenancy, being
for three years from July 16 1976, would expire on July 15 1979.
On August 11
1978 the tenant made a request for a new tenancy pursuant to the 1954 Act. It
asks for a new tenancy commencing on July 16 1979; and it asks for a fresh
tenancy of, again, three years. On September 5 the landlord served a
counternotice to that, setting out various grounds on which he stated that he
proposed to oppose any application to the court for the grant of that new
tenancy.
Nothing more
happened about that request. No application was made to the court within the
time limited by the Act, which would have been between October 11 1978 and
December 11 1978. However, on January 12 of this year the tenant made, or
purported to make, a further request for a new tenancy. It relates to these
premises, the Le Chalut Restaurant, St Paul’s Road, and it again asks for a new
tenancy beginning on the same day as that specified in the first request: that
is, July 16 1979. It again asks for a fresh term of three years.
In reply to
that, by letter dated January 26, the landlord took the point that this request
was invalid because of the previous request, and also repeated in the
alternative the same grounds as those set out in his previous counternotice,
saying that he would object to the grant of a new tenancy.
The
application to the court for a new tenancy, based on that request, was dated
March 15 1979; and it was a preliminary point in respect of that application
which came before His Honour Judge Hutton on May 1. It sets out the history as
I have stated it. It does not refer to the first request for a new tenancy and
is based on the request of January 12 1979.
The relevant
provisions of the Landlord and Tenant Act 1954 are as follows:
Section 24
(1): A tenancy to which this Part of this Act applies shall not come to an end
unless terminated in accordance with the provisions of this Part of this Act;
and, subject to the provisions of section twenty nine of this Act, the tenant
under such a tenancy may apply to the court for a new tenancy. . . . (b) if the
tenant has made a request for a new tenancy in accordance with section twenty
six of this Act.
By section
26(2):
A tenant’s
request for a new tenancy shall be for a tenancy beginning with such date, not
more than twelve nor less than six months after the making of the request, as
may be specified therein.
Then there is a
proviso which does not matter.
Subsection
(3):
A tenant’s
request for a new tenancy shall not have effect unless it is made by notice in
the prescribed form given to the landlord and sets out the tenant’s proposals.
. . .
It is
accepted, I think, that in this case both the requests which were made were
made in the prescribed form.
Then
subsection (5):
Where the
tenant makes a request for a new tenancy in accordance with the foregoing
provisions of this section, the current tenancy shall
[Subject to
certain other provisions as to the interim continuation of tenancies]
terminate
immediately before the date specified in the request for the beginning of the
new tenancy.
Then
subsection (6) provides for a counternotice by the landlord.
Section 29(3):
No
application under subsection (1) of section twenty four of this Act shall be
entertained unless it is made not less than two nor more than four months after
the giving of the landlord’s notice under section twenty five of this Act or,
as the case may be, after the making of the tenant’s request for a new tenancy.
It was because
of that section, as I have said, that the application to the court, if it had
been made as a result of the first request of August 11 1978, would have had to
be made between October 11 and December 11 1978.
The county
court judge based his decision on the view that this case was indistinguishable
from an earlier decision of this court in the case of Stile Hall Properties
Ltd v Mary Elizabeth Gooch (1968) 207 EG 715. That case apparently
is only reported briefly in ESTATES GAZETTE; but the judge was supplied, and we
have been supplied, with a transcript of the judgment of this court, which
consisted of Danckwerts LJ, Arthian Davies LJ and Edmund Davies LJ. The facts
in that case, as they appear from the judgment, are these. The appellant, Mrs
Gooch, was the tenant of property in Brentford under a lease dated March 21
1960 for seven years from January 7 1960. So that that lease would have expired
on January 6 1967. The tenant first gave a notice on September 9 1966, but that
notice was invalid because the date specified for the commencement of the new
lease was more than 12 months after the date of the notice and was therefore
invalid under the provisions of the Act which I have read. Then a
commencement of the new tenancy should be September 29 1967 and that the lease
should be for 14 years. Nothing was done under that notice by way of making an
application to the court. On September 8 1967 the landlords wrote and said: ‘As
proceedings have not been commenced within the statutory four months, we
therefore assume that your client will be vacating on the due date.’ As a result of that, on September 26 1967,
that being only two or three days before the termination of the tenancy by
virtue of the previous notice, the tenant’s solicitors wrote to the landlords’
solicitors: ‘We enclose tenant’s request for a new tenancy of the above
property. This is in place of our client’s earlier request dated March 20 1967,
which was withdrawn by our letter . . . dated April 21 1967.’ That enclosed a notice which was in the
statutory form and which specified June 24 1968 as the date for the
commencement of the new tenancy, that being, of course, about nine months later
than the date which had been specified in the previous request for a new
tenancy.
Danckwerts LJ
said this: ‘Therefore there was an attempt by the tenant to withdraw her second
notice, which was perfectly valid, and substitute a fresh one after the period
of four months mentioned in section 29 had expired.’ Danckwerts LJ then went through the relevant
provisions of the Act; and said this:
The only
other thing to which I need refer is the passage in Woodfall on Landlord and
Tenant, 26th ed, vol 1, at p 1410, in which it is observed in the middle of
the page: ‘It is important to observe that if the tenant fails to make this
application to the court, irrespective of whether the landlord has served a
notice of intention to oppose, the current tenancy ends immediately before the
date specified by the tenant in his request for the commencement of the new
tenancy and the tenant loses his right to a new tenancy and indeed all his
rights under the Act.
Danckwerts LJ
goes on:
Apparently
there is no case which deals with the observations in this book, Woodfall,
and so far as we have been informed no text-book or other book of that kind has
commented on it in any way. It seems to me that the observations are plainly
right. The effect of what the tenant did was that, by her request, she fixed
the date of the termination of the continued tenancy that the Act conferred
upon her by section 24 by reference to the date when she was asking for a new
lease, and accordingly automatically under the provisions of section 26 the
continued tenancy came to an end. That was the end of the matter, unless she
had followed it up within two or four months as required by section 29 by an
application to the appropriate court. She made no such application and
accordingly the tenancy determined on September 28 1967, and that is the end of
the matter.
Arthian Davies
LJ referred to the request of March 1967 and said:
The effect of
that request would be, under section 26 (5) of the Act, to terminate the
current tenancy on September 28 1967. Of course, if the tenant had applied
within the statutory period of four months the interim provisions for the
continuation of the tenancy would have come into effect. But she did not. And
therefore once the four months had expired the tenancy was due to come to an
end on September 28. Speaking for myself, I agree with the observations by the
learned editor of Woodfall which have been read by my Lord. It would
seem to me, as Mr Avgherinos [counsel for the plaintiff landlords] suggests, to
cut right across the intent of the Act if a tenant, such as the present
defendant, having given a perfectly valid notice and having failed to take the
necessary follow-up step to apply to the court for a new lease, could a couple
of days before the statutory expiration of the tenancy serve (as was attempted
to be done in the present case) another notice for June 24 1968 which would,
under the statute, continue the tenancy to June 23 1968, and then, I suppose,
on June 21 serve another one, and so on and on and on ad infinitum.
Pausing there,
it is that last sentence on which Mr Denyer particularly relies; and I will
come back to that later. Arthian Davies LJ went on:
The landlord
would never know where he stood. The statute, as we all know, is an invasion of
the landlord’s right, for perfectly proper and sound reasons; but it must be
construed strictly in accordance with its terms, and I can see nothing
whatsoever in it that would permit the procedure that was adopted by the tenant
in the present case. I entirely agree with my Lord that this appeal, bravely as
it is sought to be supported by Mr Beaumont on behalf of the defendant, is
quite hopeless and should be dismissed.
Edmund Davies
LJ said:
In the
present case Mr Beaumont has had to struggle with a really impossible task and
he has failed, despite his efforts to discharge it. The suggestion put forward
that it is open to the tenant, without the concurrence of the landlord, to
withdraw his request for a new tenancy is one which would cut entirely across
the statutory scheme. The Act vests radical rights in the tenant of business
premises. It also recognises that the landlord also has certain rights and must
be protected against exploitation and against harassment. If what is suggested
here were indeed the position and the tenant could go on indefinitely serving
the landlord with fresh requests, it appears to me that a quite impossible
situation would result. The tenant having served an entirely valid request on
March 20 1967, it had certain legal consequences. If she did nothing more,
section 26 (5) came into operation and would operate to terminate that tenancy
immediately before the date specified in the request for the beginning of the
new tenancy, in this case on September 28 1967. In order that the tenant should
prevent that event occurring it was up to her, pursuant to section 29(3), to
make an application to the court for a new tenancy, that application being made
not less than two nor more than four months after the making of the tenant’s
request to her landlord for a new tenancy. This tenant never proceeded under
section 29(3), and accordingly the landlords perfectly properly sent her a
letter of September 8 1967, in which they said
what I have
already quoted: that they assumed that as no application had been made the
tenant would be giving up possession.
Edmund Davies
LJ went on:
The result of
that was, very belatedly, to evoke from the tenant the purported further
request on September 26, to which reference has already been made. In my
judgment that clearly will not do. The whole scheme would be frustrated were
such a request to have any validity. I have no doubt, any more than my Lords
have, that the learned editor of Woodfall has perfectly correctly
expounded the effect of the Act, and particularly of the operation of section
26(5) and section 29(3), in the passage on p 1410 in the first volume of the
26th edition, which has already been cited.
All three of
their Lordships, accordingly, had no hesitation in dismissing the appeal.
When this
matter came before His Honour Judge Hutton, he set out the facts in his
judgment and referred to the relevant provisions of the Act, and to the
applications. He went on: ‘Mr Wigmore’–who appeared for the landlord there, as
he has here–‘has submitted that it was only possible for the tenant to make one
request. That once a request is made the procedure starts working. The clock
starts running and cannot be stopped and started again by a further
request.’ He then referred to the Stile
Hall case, and said: ‘That case is similar to this one in all respects
except one.’ Then he refers to the
judgments of Danckwerts LJ and Edmund Davies LJ and quotes the passages which I
have already quoted, including the quotation from Woodfall. He went on:
That case is
distinguished by Mr Denyer on behalf of the tenant. In the Stile Hall
case, he says, the final request used a different date for the start of a new
tenancy, a later date. So there was there a complete lack of merit on behalf of
the tenant who was simply stalling for more time. Mr Denyer submits that here
the same date is requested, so no hardship could be alleged and the landlord is
being purely technical and lacking in merit. He further says that the Act in
itself does not provide that no further request can be made. I reject the
submissions by the tenant. The Stile Hall case sets out the law not only
on the facts of that case but generally, and the findings in that case apply
equally here. Merit has no relevance to the decisions. The landlord is entitled
to rely upon the provisions of the Act, as set out by the court in Stile
Hall. Therefore the tenant’s application is invalid as being out of time
following the original request.
Mr Denyer in
this court has sought valiantly to distinguish the Stile Hall case, on
the same ground as that on which he relied before the judge–that is, that the
ground of the decision in the Stile Hall case was that the second
request specified a date for the commencement of the new tenancy which was
different from and later than that specified in the first request; whereas here
the second request specified the same date.
It seems to me
that the ratio of the Stile Hall case was this. By virtue of
section 26(5) the existing tenancy terminates immediately before the date
specified in the request for a new tenancy, unless the tenant within the time
specified by section 29(3) makes an application to the court. If he does make
an application, the tenancy continues till three months after the final
disposal of the proceedings: see section 64. But if the tenant does not make
such an application, the tenancy automatically comes to an end on that date. If
the tenant fails to make an application within the proper time, he cannot
withdraw the first request and make another. In the Stile Hall case the
court was obviously impressed by the hardship to the landlord if the tenant
could go on serving successive notices and so continuing the tenancy ad
infinitum. Here, of course, the tenant is not trying to do any such thing.
It is true that the particular hardship to the landlord which impressed this
court in the Stile Hall case would not arise in this case. But I find it
impossible to distinguish this case from Stile Hall on the ground put
forward by Mr Denyer.
I have already
read section 29(3) and I need not read it in full again; but it provides that
no application under subsection (1) of section 24 of the Act ‘shall be
entertained’ unless it is made within the specified time. Mr Denyer accepts
that the first request was a valid request and that it had one of the
consequences laid down: that is, the consequence of terminating the tenancy on
July 15 1979. He does not explicitly ask to withdraw that request, but in
substance I think that is really what he does ask: that is, that the request
should be treated as withdrawn so as to allow the application based on the
second request to be made. In Stile Hall this court held that the first
notice could not be withdrawn. If Mr Denyer’s submission were right, I can see
no reason why a tenant should not specify a later date in his second request
than the date specified in his first request. It seems to me that in principle
this case is indistinguishable from the Stile Hall case. It seems to me
that the case is exactly covered by the passage from the judgment of Danckwerts
LJ which I have already read. I do not think I need read it again: it is the
passage which begins ‘The effect of what the tenant did was that, by her
request, she fixed the date of the termination of the continued tenancy’ and
ends with the words ‘and that is the end of the matter.’
In spite of Mr
Denyer’s very brave attempt to distinguish Stile Hall, it seems to me
that it is quite impossible to distinguish that case from this; that decision
is binding on this court; and accordingly this appeal must, in my judgment, be
dismissed.
Agreeing MEGAW
LJ said: Mr Denyer, with, if I may say so, proper and admirable economy of
words, has put forward his submission that there is a material distinction
between the ratio decidendi of the decision of this court in the Stile
Hall Properties case and the present case. In my judgment there is no such
material distinction.
The only other
thing that I should add, in case it might be of relevance in certain other
contexts, is that the solicitors who have represented the tenant on the hearing
of the preliminary issue in the county court and again on the appeal in this
court are not the same as the solicitors who apparently, as agents for the
appellant in this appeal, put forward the notices of August 11 1978 and January
12 1979 and the formal application for a new tenancy of March 15 1979.
The appeal was dismissed with costs. Leave to appeal
to the House of Lords was refused.
