Landlord and tenant — Periodic tenancy — Whether periodic tenancy can be determined by notice to quit given by one of the joint tenants without the concurrence of the other — Held periodic joint tenancy effectively determined by one joint tenant
respondent local authority granted Mr Monk, the appellant, and a Mrs Powell, a
weekly tenancy of a flat at 35 Niton Street, London SW6, where they cohabited —
By its terms the tenancy was terminable by four weeks’ notice to expire on a
Monday — In 1988 the appellant and Mrs Powell fell out and Mrs Powell left the
flat — The respondents agreed to rehouse her if she terminated the tenancy of
the flat — Mrs
respondents immediately notified the appellant and in due course brought
proceedings to recover possession — In the county court it was held that the
notice to quit was ineffective and the claim for possession was dismissed — The
Court of Appeal allowed the respondents’ appeal and made an order for
possession — Mr Monk appealed from that decision
A and B contract with C on terms which are to continue in operation for one
year in the first place and thereafter from year to year unless determined by
notice at the end of the first or any subsequent year, neither A nor B has
bound himself contractually for longer than one year — To hold that A could not
determine the contract at the end of any year without the concurrence of B and
vice versa would presuppose that each had assumed a potentially irrevocable
contractual obligation for the duration of their joint lives — The application
of ordinary contractual principles leads one to expect that a periodic tenancy
granted to two or more joint tenants must be terminable at common law by an
appropriate notice to quit given by any one of them whether or not the others
are prepared to concur — There is support for the proposition that a yearly
tenancy continues only so long as each and all joint tenants concur: see Blackstone’s
Commentaries, and Doe d Aslin v Summersett — Additionally
there is Court of Appeal authority in Leek & Moorlands Building Society
v Clark and Greenwich London Borough Council v McGrady —
Accordingly, unless the terms of the tenancy agreement otherwise provide,
notice to quit given by one joint tenant without the concurrence of any other
joint tenants is effective to determine a periodic tenancy
of a statutory trust for sale meant that the appellant and Mrs Powell held the
legal estate in the periodic tenancy as trustees — The submission that trustees
act unanimously and neither of them individually could give a valid notice to
quit failed — It was doubtful whether Mrs Powell was in breach of trust, but
even if the giving of a notice by her was a breach, the notice to quit was
effective to terminate the tenancy
The following
cases are referred to in this report.
Alford v Vickery (1842) Car&M 280
Bull v Bull [1955] 1 QB 234; [1955] 2 WLR 78; [1955] 1 All ER 253
Doe d
Aslin v Summersett (1830) 1B&Ad 135
Doe d
Kindersley v Hughes (1840) 7 M&W 139
Doe d
Whayman v Chaplin (1810) 3 Taunt 120
Gandy v Jubber (1865) 9 B&S 15; (1864) 5 B&S 78; 33 LJQB
151; 9 LT 800; 10 Jur NS 652; 12 WR 526
Greenwich
London Borough Council v McGrady (1982) 81
LGR 288; 46 P&CR 223; [1983] EGD 519; 267 EG 515, [1983] 2 EGLR 32, CA
Howson v Buxton (1928) 97 LJKB 749
Leek
& Moorlands Building Society v Clark
[1952] 2 QB 788; [1952] 2 All ER 492; [1952] 2 TLR 401, CA
Smith v Grayton Estates Ltd 1960 SC 349; 1961 SLT 38
Warren,
Re [1932] 1 Ch 42
This was an
appeal by Mr Monk, who with Mrs Powell held a weekly tenancy of a flat at 35
Niton Street, London SW6, granted to them by the respondent local authority,
from a decision of the Court of Appeal [1991] 1 EGLR 263, who had allowed the
respondents’ appeal from a decision of Judge Roger Cooke in the West London
County Court, who had dismissed the respondents’ claim to possession of the
flat.
Robert Reid QC
and Paul Staddon (instructed by Oliver Fisher & Co) appeared for the
appellant; and Stephen Sedley QC and Beverly Ann Rogers (instructed by the
solicitor to Hammersmith and Fulham London Borough Council) represented the
respondents.
In his speech,
LORD BRIDGE OF HARWICH said: The issue in this appeal is whether a
periodic tenancy held by two or more tenants jointly can be brought to an end
by a notice to quit by one of the joint tenants without the consent of the
others. It arises for determination in the following circumstances. The
appellant, Mr Monk, and Mrs Powell were granted by the respondent local
authority a weekly tenancy of a flat at 35 Niton Street, London SW6, where they
cohabited. The tenancy was terminable by four weeks’ notice to expire on a
Monday. In 1988 Mr Monk and Mrs Powell fell out and Mrs Powell left the flat.
She consulted the respondents, who agreed to rehouse her if she would terminate
the tenancy of the flat by giving an appropriate notice, which she did. The
notice was given without Mr Monk’s knowledge or consent but the respondents
immediately notified him that the tenancy had been determined and in due course
brought proceedings in the West London County Court to recover possession.
Judge Roger Cooke held that Mrs Powell’s notice to quit was ineffective to
determine the tenancy and dismissed the claim. The Court of Appeal (Slade,
Nicholls and Bingham LJJ) (1990) 61 P&CR 414* allowed the respondents’
appeal and made an order for possession. Mr Monk now appeals by leave of your
lordships’ House.
*Editor’s
note: Also reported at [1991] 1 EGLR 263.
In a previous
decision of the Court of Appeal, Greenwich London Borough Council v McGrady
(1982) 46 P&CR 223† , it was held that a notice to quit given by one of two
joint tenants without the consent of the other was effective to determine the
periodic tenancy to which it related. Much of the argument before the Court of
Appeal in the present case was directed to the question whether the court was
free to reach a conclusion at variance with McGrady on the grounds: (1)
that an earlier decision of the Court of Appeal, Howson v Buxton
(1928) 97 LJKB 749, was, as the judge had held, binding authority to the
opposite effect; or (2) that, in any event, the decision in McGrady was
given per incuriam. The judgment of Slade LJ, with which Bingham LJ
agreed, examined these issues very thoroughly and reached the conclusion that Howson
v Buxton was not authority for the proposition sought to be derived from
it and that McGrady was binding on the court. Nicholls LJ approached the
issue more radically and held, both on principle and in reliance on a long line
of authority prior to the decision in McGrady, that a joint periodic
tenancy could be determined by a notice to quit given by one joint tenant.
† Editor’s
note: Also reported at (1982) 267 EG 515, [1983] 2 EGLR 32.
Your lordships
are not technically bound by any previous decision and before examining the
relevant authorities I think it helpful to consider whether the application of
first principles suggests the answer to the question at issue. For a large part
of this century there have been many categories of tenancy of property occupied
for agricultural, residential and commercial purposes where the legislature has
intervened to confer upon tenants extra-contractual rights entitling them to
continue in occupation without the consent of the landlord, either after the
expiry of a contractual lease for a fixed term or after notice to quit given by
the landlord to determine a contractual periodic tenancy. It is primarily in
relation to joint tenancies in these categories that the question whether or
not notice to quit given by one of the joint tenants can determine the tenancy
is of practical importance, particularly where, as in the instant case, the
effect of the determination will be to deprive the other joint tenant of
statutory protection. This may appear an untoward result and may consequently
provoke a certain reluctance to hold that the law can permit one of two joint
tenants unilaterally to deprive his co-tenant of ‘rights’ which both are
equally entitled to enjoy. But the statutory consequences are in truth of no
relevance to the question which your lordships have to decide. That question is
whether, at common law, a contractual periodic tenancy granted to two or more
joint tenants is incapable of termination by a tenant’s notice to quit unless
it is served with the concurrence of all the joint tenants. That is the
proposition which the appellant must establish in order to succeed.
As a matter of
principle I see no reason why this question should receive any different answer
in the context of the contractual relationship of landlord and tenant than that
which it would receive in any other contractual context. If A and B contract
with C on terms which are to continue in operation for one year in the first
place and thereafter from year to year unless determined by notice at the end
of the first or any subsequent year, neither A nor B has bound himself
contractually for longer than one year. To hold that A could not determine the
contract at the end of any year without the concurrence of B and vice versa
would presuppose that each had assumed a potentially irrevocable contractual
obligation for the duration of their joint lives, which, whatever the nature of
the contractual
parties that nothing less than the clearest express contractual language would
suffice to manifest it. Hence, in any ordinary agreement for an initial term
which is to continue for successive terms unless determined by notice, the
obvious inference is that the agreement is intended to continue beyond the
initial term only if and so long as all parties to the agreement are willing
that it should do so. In a common law situation, where parties are free to
contract as they wish and are bound only so far as they have agreed to be
bound, this leads to the only sensible result.
Thus the
application of ordinary contractual principles leads me to expect that a
periodic tenancy granted to two or more joint tenants must be terminable at
common law by an appropriate notice to quit given by any one of them whether or
not the others are prepared to concur. But I turn now to the authorities to see
whether there is any principle of the English law of real property and peculiar
to the contractual relationship of landlord and tenant which refutes that
expectation or whether the authorities confirm it. A useful starting point is
the following passage from Blackstone’s Commentaries, Book II, chapter
9, pp 145-147, which explains clearly how the law developed the concept of a
yearly tenancy from the earlier concept of a tenancy at will, which gave the
tenant no security of tenure:
The second
species of estates not freehold are estates at will. An estate at will is where
lands and tenements are let by one man to another, to have and to hold at the
will of the lessor; and the tenant by force of this lease obtains possession.
Such tenant hath no certain indefeasible estate, nothing that can be assigned
by him to any other; for that the lessor may determine his will, and put him
out whenever he pleases. But every estate at will is at the will of both
parties, landlord and tenant, so that either of them may determine his will, and
quit his connexions with the other at his own pleasure. Yet this must be
understood with some restriction. For, if the tenant at will sows his land, and
the landlord before the corn is ripe, or before it is reaped, puts him out, yet
the tenant shall have the emblements, and free ingress, egress, and regress, to
cut and carry away the profits. And this for the same reasons, upon which all
the cases of emblements turn; viz the point of uncertainty: since the tenant
could not possibly know when his landlord would determine his will, and
therefore could make no provision against it; and having sown the land, which
is for the good of the public, upon a reasonable presumption, the law will not
suffer him to be a loser by it. But it is otherwise, and upon reason equally
good, where the tenant himself determines the will; for in this case the
landlord shall have the profits of the land.
. . .
The law is,
however, careful that no sudden determination of the will by one party shall
tend to the manifest and unforeseen prejudice of the other. This appears in the
case of emblements before-mentioned; and, by a parity of reason, the lessee
after the determination of the lessor’s will, shall have reasonable ingress and
egress to fetch away his goods and utensils. And, if rent be payable quarterly
or half-yearly, and the lessee determines the will, the rent shall be paid to
the end of the current quarter or half-year. And, upon the same principle,
courts of law have of late years leant as much as possible against construing
demises, where no certain term is mentioned, to be tenancies at will; but have
rather held them to be tenancies from year to year so long as both parties
please, especially where an annual rent is reserved: in which case they
will not suffer either party to determine the tenancy even at the end of the
year, without reasonable notice to the other . . .
I have added
emphasis to the phrase ‘from year to year so long as both parties please’
because in its Latin version de anno in annum quamdiu ambabus partibus
placuerit this same phrase is used repeatedly in a passage from Bacon’s
Abridgment, 7th ed, which has always been treated as of the highest
authority, as apt to describe the essential characteristics of a yearly
tenancy.
Hence, from
the earliest times a yearly tenancy has been an estate which continued only so
long as it was the will of both parties that it should continue, albeit that
either party could only signify his unwillingness that the tenancy should
continue beyond the end of any year by giving the appropriate advance notice to
that effect. Applying this principle to the case of a yearly tenancy where
either the lessor’s or the lessee’s interest is held jointly by two or more
parties, logic seems to me to dictate the conclusion that the will of all the
joint parties is necessary to the continuance of the interest.
In Doe d
Aslin v Summersett (1830) 1 B&Ad 135, the freehold interest in
land let on a yearly tenancy was vested jointly in four executors of a will to
whom the land had been jointly devised. Three only of the executors gave notice
to the tenant to quit. It was held by the Court of King’s Bench that the notice
was effective to determine the tenancy. Delivering the judgment, Lord Tenterden
CJ said at pp 140-141:
Upon a joint
demise by joint tenants upon a tenancy from year to year, the true character of
the tenancy is this, not that the tenant holds of each the share of each so
long as he and each shall please, but that he holds the whole of all so long as
he and all shall please; and as soon as any one of the joint tenants
gives a notice to quit, he effectually puts an end to that tenancy; the
tenant has a right upon such a notice to give up the whole, and unless
he comes to a new arrangement with the other joint tenants as to their shares,
he is compellable so to do. The hardship upon the tenant, if he were not
entitled to treat a notice from one as putting an end to the tenancy as to the
whole, is obvious; for however willing a man might be to be sole tenant of an estate,
it is not very likely he should be willing to hold undivided shares of it; and
if upon such a notice the tenant is entitled to treat it as putting an end to
the tenancy as to the whole, the other joint tenants must have the same right.
It cannot be optional on one side, and on one side only.
Now it was
rightly pointed out in argument that part of the reasoning in this passage was
dictated by considerations derived from the incidents of joint land tenure at
law, which were swept away by the reforming legislation of 1925. But this can
in no way detract from the validity of the proposition emphasised in the
judgment that the yearly tenant of a property let to him by joint freeholders
‘holds the whole of all so long as he and all shall
please’. This by itself is a sufficient and independent ground for the
conclusion of the court that notice to quit by any one joint freeholder was
effective to determine the tenancy. Precisely the same reasoning would apply to
the operation of a notice to quit by one of two or more joint yearly tenants.
Summersett’s case was followed in Doe d Kindersley v Hughes (1840)
7 M&W 139 and Alford v Vickery (1842) Car&M 280, both
cases in which the validity of a notice to determine a yearly tenancy given to
the tenant without the concurrence of one or more of the joint landlords was
affirmed. It is interesting that throughout the 19th century there is no
reported case in the books where the effect of a notice to quit given by one of
two or more joint holders of the tenant’s interest under a yearly or other
periodic tenancy was ever called in question. I do not, however, find this
surprising. The law was probably regarded as settled after Summersett’s
case, but in any event, before the advent of statutory protection of tenants’
rights of occupation, in the case of a notice to quit given by one of two or
more joint periodic tenants the parties would in most cases have had little
incentive to litigate. If the landlord was content that the other tenants
should remain, there would have been nothing to litigate about. If the landlord
wished to recover possession, he could do so by giving his own notice to quit.
In this
century the English cases directly in point are: Howson v Buxton
(1928) 97 LJKB 749; Leek & Moorlands Building Society v Clark
[1952] 2 QB 788 and Greenwich London Borough Council v McGrady
(1982) 46 P&CR 223. I will defer consideration of Howson v Buxton
until later. In Leek & Moorlands Building Society v Clark the
point directly in issue was whether one of two joint lessees could validly
surrender the lease before the full period of the lease had run without the
concurrence of the other joint lessee. Delivering the reserved judgment of the
court in favour of the defendant lessees, Somervell LJ said at pp 792-793:
Counsel for
the plaintiffs sought to rely on Doe d Aslin v Summersett as
supporting a submission that Mr Ellison, by what he did, had brought the joint
tenancy to an end. That case was dealing with a lessee from year to year of
land which he held from two joint lessors. A notice to quit was served signed
by one only of the joint lessors. It was argued that the other lessor had
adopted the notice, but Lord Tenterden, who delivered the judgment of the Court
of King’s Bench, held that without any such adoption a notice to quit by one of
the joint lessors, who were joint tenants, put an end to the tenancy as to
both.
The ratio of
the decision is, we think, to be found in the following sentence: ‘Upon a joint
demise by joint tenants’ — that is, the lessors in that case — ‘upon a tenancy
from year to year, the true character of the tenancy is this, not that the
tenant holds of each the share of each so long as he and each shall please, but
that he holds the whole of all so long as he and all shall please; and as soon
as any one of the joint tenants’ — that is, the lessors in that case — ‘gives a
notice to quit, he effectually puts an end to that tenancy’. It is to be noted
that Lord Tenterden was dealing with a notice to quit in respect of a periodic
tenancy. He was not dealing with a right to determine a lease for say 21 years
at the end, say, of the seventh or fourteenth year. Nor was he dealing with
surrender.
There is, we
think, force in the submission made on behalf of the plaintiffs, that in the
case of a periodic tenancy Lord Tenterden’s principle would apply when there
were joint lessees. A periodic tenancy continues from period to period unless
the notice agreed or implied by law is given. But if one of two joint lessees
who ‘hold the whole’ wishes it not to continue beyond the end of a period, it
might well be held that it did not continue into a new period. That would
happen only if all, that is, the joint lessees, shall please.
If one
considers a lease to joint lessees for a term certain with a right of renewal,
it would be obvious, we think, that both must join in requiring a renewal. A
periodic tenancy renews itself unless either side brings it to an end.
But if one of two or more joint lessees does not desire it to continue, we
would have thought that it was in accordance with Lord Tenterden’s principle,
and with common sense, that he should be able to make that effective.
The judgment
adds at pp 794-795:
Even if we
are wrong in what we have said with regard to a right to determine within the
period of the lease as distinct from a right to terminate a periodic tenancy,
we would have thought it plain that one of two joint lessees cannot, in the
absence of express words or authority, surrender the rights held jointly. If
property or rights are held jointly, prima facie a transfer must be by
or under the authority of all interested. The answer suggested to this is the
principle laid down in Doed Aslin v Summersett. That case, for
reasons which we have given, is not in our view an exception to the rule we
have just stated. It is an illustration, in a highly technical field, of the
general principle that if a joint enterprise is due to terminate on a
particular day, all concerned must agree if it is to be renewed or continued
beyond that day. To use Lord Tenterden’s phrase, it will only be continued if
‘all shall please’.
In the Greenwich
case the point at issue was precisely the same as in the present appeal. After
citing the judgment of the court in Leek & Moorlands Building Society
v Clark, Sir John Donaldson MR said, at p 224:
In my
judgment, it is clear law that, if there is to be a surrender of a joint
tenancy — that is, a surrender before its natural termination — then all must
agree to the surrender. If there is to be a renewal, which is the position at
the end of each period of a periodic tenancy, then again all must concur. In
this case, Mrs McGrady made it quite clear by her notice to quit that she was
not content to renew the joint tenancy on and after June 15 1981. That left Mr
McGrady without any tenancy at all, although it was faintly argued by Mr Osman
that on, as he put it, the severance of a joint tenancy the joint tenant who
did not concur was left with a sole tenancy. That cannot be the law, and no
authority has been cited in support of it.
The only
point that remains is whether Mr McGrady is entitled to the protection of the
Act of 1980 on the ground that what was a secure contractual tenancy has been
brought to an end. The short answer to that is that the Act of 1980 operated to
give security where landlords give notice to quit; it does not give security
where tenants give notice to quit.
In the instant
case it has not been suggested either that the notice to quit given by Mrs
Powell could have had the effect of ‘severing’ the joint tenancy and leaving Mr
Monk in possession as sole tenant or that, if Mrs Powell’s notice was
effective, Mr Monk was entitled to any statutory protection.
To this
formidable body of English authority which supports the conclusion reached by
the Court of Appeal there must be added the decision of the Court of Session in
Smith v Grayton Estates Ltd 1960 SC 349, which shows that Scots
law, although using different terminology, applies essentially the same
principle to give the same answer to the same question. The issue in the case
was whether a tenancy continuing from year to year after the expiry of a fixed
term by virtue of the Agricultural Holdings (Scotland) Act 1949 was determined
by notice given by one of two joint tenants. Lord President Clyde said, at pp
354-355:
In considering
this matter, it is of importance to realise that in the present case the
tenants were occupying under tacit relocation, in other words, that the tenancy
was being prolonged from year to year beyond the stipulated term in the lease,
but that otherwise the conditions in the lease continued to operate — see Rankine,
Law of Leases, p 601; Cowe v Millar, reported only in Connell
on the Agricultural Holdings (Scotland) Act 1923, p 346, per Lord
President Clyde at p 355. The question comes to be whether, in that situation,
a timeous notice by one of the two joint tenants is invalid to bring the
tenancy to an end. The argument for the appellant was that a valid notice must
be from both the joint tenants, and this notice, not being a joint one,
consequently is bad.
But, as I see
it, this argument overlooks the meaning and effect of tacit relocation. Tacit
relocation is not an indefinite prolongation of a lease. It is the prolongation
each year of the tenancy for a further one year, if the actings of the parties
to the lease show that they are consenting to this prolongation. For, as in all
contracts, a tacit relocation or reletting must be based on consent. In the
case of tacit relocation the law implies that consent if all parties are silent
on the matter. Hence, where there are joint tenants, tacit consent by both of
them is necessary to secure the prolongation and to enable tacit relocation to
operate. Silence by both is necessary to presume that both the tenants wish the
tenancy to continue for another year. On the other hand, if both are not
silent, and if one gives due notice of termination, the consent necessary for
tacit relocation to operate is demonstrably not present, and tacit relocation
will not operate beyond the date of termination in the notice. Clearly, in the
present case, there is not such tacit consent, and, in my view, a notice by one
of the two joint tenants is enough to exclude the further operation of tacit relocation.
Lord Sorn, at
p 356, is to the like effect.
These, then,
are the principles and the authorities which the appellant seeks to controvert.
In the light of the careful analysis in the judgment of Slade LJ of Howson
v Buxton, which I gratefully adopt and need not repeat, it is now
rightly accepted that the case affords no greater support for the appellant
than can be derived from the obiter dictum of Scrutton LJ, who said,
with reference to a notice to determine a yearly tenancy, at p 752:
I personally
take the view that one joint tenant cannot give a notice to terminate the
tenancy unless he does so with the authority of the other joint tenant . . .
Despite the
eminence of the author of this observation, I do not feel able to give any
weight to it in the absence of any indication of the reasoning on which it is
based.
There are
three principal strands in the argument advanced for the appellant. First,
reliance is placed on the judgment in Gandy v Jubber (1865) 9
B&S 15 for the proposition that a tenancy from year to year, however long
it continues, is a single term, not a series of separate lettings. The case
arose out of an action for damages by a plaintiff who had been injured by a
defective iron grating which was out of repair so as to amount to a nuisance.
The property was occupied by a yearly tenant, but the claim was brought against
the reversioner, who was held liable by the Court of Queen’s Bench. The
defendant appealed to the Court of Exchequer Chamber on the ground that it was
not alleged that the defendant knew of the nuisance, nor that it had existed
prior to the commencement of the yearly tenancy. The argument is reported at 5
B&S 485. Judgment was reserved, but before it was delivered the case was
settled and Erle CJ announced:
It will not be
necessary to deliver the judgment we have prepared.
The
undelivered judgment in the defendant’s favour is nevertheless reported at 9
B&S 15 and has always been regarded as authoritative. The passage relied on
reads:
There
frequently is an actual demise from year to year so long as both parties
please. The nature of this tenancy is discussed in 4 Bac Abr tit Leases
and Terms for Years, pp 838, 839, 7th ed, and this article has always been
deemed to be the highest authority being said to be the work of Chief Baron
Gilbert. It seems clear that the learned author considered that the true nature
of such a tenancy is that it is a lease for two years certain, and that every
year after it is a springing interest arising upon the first contract and
parcel of it, so that if the lessee occupies for a number of years, these
years, by computation from time past, makes an entire lease for so many years,
and after the commencement of each new year it becomes an entire lease certain
for the years past and also for the years entered on, and that it is not a
reletting at the commencement of the third and subsequent years. We think this
is the true nature of a tenancy from year to year created by express words, and
that there is not in contemplation of law a recommencing — or reletting at the
beginning of each year.
It must follow
from this principle, Mr Reid QC (for the appellant) submits, that the
determination of a periodic tenancy by notice is in all respects analogous to
the determination of a lease for a fixed term in the exercise of a break
clause, which in the case of joint lessees clearly requires the concurrence of
all. But reference to the passage from Bacon’s Abridgment, 7th ed, at p
839, on which the reasoning is founded shows that this analogy is not valid.
The relevant passage reads:
A parol lease
was made de anno in annum, quamdiu ambabus partibus placuerit; it was
adjudged that this was but a lease for a year certain, and that every year
after it was a springing interest, arising upon the first contract and parcel
of it; so that if the lessee had occupied eight or ten years, or more, these
years, by computation from the time past, made an entire lease for so many
years; and if rent was in arrear for part of one of those years, and part of
another, the lessor might distrain and avow as for so much rent arrear upon one
entire lease, and need not avow as for several rents due upon several leases,
accounting each year a new lease. It was also adjudged, that after the
commencement of each new year, this was become an entire lease certain for the
years past, and also for the year so entered upon; so that neither party could
determine their wills till that year was run out, according to the opinion of
the two judges in the last case. And this seems no way impeached by the statute
of frauds and perjuries, which enacts, that no parol lease for above three
years shall be accounted to have any other force or effect than of a lease only
at will: for at first, this being a lease certain only for one year, and each
accruing year after being a springing interest for that year, it is not a lease
for any three years to come, though by a computation backwards, when five or
six or more years are past, this may be said a parol lease for so many years;
but with this the statute has nothing to do, but only looks forward to parol
leases for above three years to come.
Thus the fact
that the law regards a tenancy from year to year which has continued for a
number of years, considered retrospectively, as a single term in no way affects
the principle that continuation beyond the end of each year depends on the will
of the
continues no further than the parties have already impliedly agreed upon by
their omission to serve notice to quit.
The second
submission for the appellant is that, whatever the law may have been before the
enactment of the Law of Property Act 1925, the effect of that statute, whereby
a legal estate in land vested in joint tenants is held on trust for sale for
the parties beneficially entitled, coupled with the principle that trustees
must act unanimously in dealing with trust property, is to reverse the decision
in Summersett’s case and to prevent one of two joint tenants determining
a periodic tenancy without the concurrence of the other. It is unnecessary to
reconsider the position where the parties beneficially entitled are different
from those who hold the legal interest. But where, as here, two joint tenants
of a periodic tenancy hold both the legal and the beneficial interest, the
existence of a trust for sale can make no difference to the principles
applicable to the termination of the tenancy. At any given moment the extent of
the interest to which the trust relates extends no further than the end of the
period of the tenancy which will next expire on a date for which it is still
possible to give notice to quit. If before 1925 the implied consent of both
joint tenants, signified by the omission to give notice to quit, was necessary
to extend the tenancy from one period to the next, precisely the same applies
since 1925 to the extension by the joint trustee beneficiaries of the periodic
tenancy which is the subject of the trust.
Finally, it is
said that all positive dealings with a joint tenancy require the concurrence of
all joint tenants if they are to be effective. Thus, a single joint tenant
cannot exercise a break clause in a lease, surrender the term, make a
disclaimer, exercise an option to renew the term or apply for relief from
forfeiture. All these positive acts which joint tenants must concur in
performing are said to afford analogies with the service of notice to determine
a periodic tenancy which is likewise a positive act. But this is to confuse the
form with the substance. The action of giving notice to determine a periodic
tenancy is in form positive; but both on authority and on the principle so
aptly summed up in the pithy Scottish phrase ‘tacit relocation’ the substance
of the matter is that it is by his omission to give notice of termination that
each party signifies the necessary positive assent to the extension of the term
for a further period.
For all these
reasons I agree with the Court of Appeal that, unless the terms of the tenancy
agreement otherwise provide, notice to quit given by one joint tenant without
the concurrence of any other joint tenant is effective to determine a periodic
tenancy.
An alternative
ground advanced in support of the appeal relied on the particular terms of the
tenancy agreement entered into by Mr Monk and Mrs Powell with the respondents
as requiring notice to quit to be given by both joint tenants in order to
determine the tenancy. I agree entirely with the reasons given by Slade and
Nicholls LJJ for rejecting this contention.
I would
accordingly dismiss the appeal.
LORDS
BRANDON OF OAKBROOK, ACKNER and JAUNCEY OF
TULLICHETTLE agreed with the speech of Lord Bridge of Harwich and the
reasons given in it and did not add any observations of their own.
In his speech,
LORD BROWNE-WILKINSON said: There are two instinctive reactions to this
case which lead to diametrically opposite conclusions. The first is that the
flat in question was the joint home of Mr Monk and Mrs Powell: it therefore
cannot be right that one of them unilaterally can join the landlords to put an
end to the other’s rights in the home. The second is that Mr Monk and Mrs
Powell undertook joint liabilities as tenants for the purpose of providing
themselves with a joint home and that, once the desire to live together has
ended, it is impossible to require that the one who quits the home should
continue indefinitely to be liable for the discharge of the obligations to the
landlord under the tenancy agreement.
These two
instinctive reactions are mirrored in the legal analysis of the position. In certain
cases a contract between two persons can, by itself, give rise to a property
interest in one of them. The contract between a landlord and a tenant is a
classic example. The contract of tenancy confers on the tenant a legal estate
in the land: such legal estate gives rise to rights and duties incapable of
being founded in contract alone. The revulsion against Mrs Powell being able
unilaterally to terminate Mr Monk’s rights in his home is property based: Mr
Monk’s property rights in the home cannot be destroyed without his consent. The
other reaction is contract based: Mrs Powell cannot be held to a tenancy
contract which is dependent for its continuance on the will of the tenant.
The speech of
my noble and learned friend Lord Bridge of Harwich traces the development of
the periodic tenancy from a tenancy at will. He demonstrates that a periodic
tenancy is founded on the continuing will of both landlord and tenant that the
tenancy shall persist. Once either the landlord or the tenant indicates, by
appropriate notice, that he no longer wishes to continue, the tenancy comes to
an end. The problem is to determine who is ‘the landlord’ or ‘the tenant’ when
there are joint lessors or joint lessees.
In property
law a transfer of land to two or more persons jointly operates so as to make
them, vis-a-vis the outside world, one single owner. ‘Although as
between themselves joint tenants have separate rights, as against everyone else
they are in the position of a single owner’: Megarry and Wade, The Law of
Real Property, 5th ed, p 417. The law would have developed consistently
with this principle if it had been held that where a periodic tenancy has been
granted by or to a number of persons jointly, the relevant ‘will’ to discontinue
the tenancy has to be the will of all the joint lessors or joint lessees who
together constitute the owner of the reversion or the term as the case
may be.
At one stage
the law seems to have flirted with adopting this approach. Thus in Doe d
Whayman v Chaplin (1810) 3 Taunt 120 there was a periodic tenancy
and four persons were the joint lessors. Three only of the joint lessors gave
notice to quit against the wishes of the fourth. It is reported that at one
stage the court inclined to the view that in order to determine the tenancy all
four lessors had to agree. However, after further argument it was held that
each of the three who had given notice to quit was entitled to put an end to
the tenancy of his share and the three who had given notice to quit were
therefore entitled to recover three parts of the land. As a result, the
defendant apparently was entitled to stay on the land in right of his tenancy
of one part as tenant in common with the three lessors who had given notice.
Although the decision is difficult for a modern lawyer to understand fully, one
thing is clear: the giving of notice to quit by three out of the four joint
lessors was not sufficient to determine the tenancy of the whole land.
Despite this
flirtation, the law was, in my judgment, determined in the opposite sense by Doe
d Aslin v Summersett (1830) 1 B&Ad 135. The contractual, as
opposed to the property, approach was adopted. Where there were joint lessors
of a periodic tenancy, the continuing ‘will’ had to be the will of all the lessors
individually, not the conjoint will of all the lessors collectively. This
decision created an exception to the principles of the law of joint ownership:
see Megarry and Wade (supra) pp 421-422.
It was
submitted that this House should overrule Summersett’s case. But, as my
noble and learned friend Lord Bridge of Harwich has demonstrated, the decision
was treated throughout the 19th century as laying down the law in relation to
the rights of joint lessors. It is not suggested that the position of joint lessees
can be different. Since 1925 the law as determined in Summersett’s case
has been applied to notices to quit given by one of several joint lessees. In
my judgment, no sufficient reason has been shown for changing the basic law
which has been established for 160 years unless, as was suggested, the 1925
legislation has altered the position.
Before 1925
property belonging to two or more persons concurrently could be held by them in
undivided or divided shares at law. The Law of Property Act 1925 changed this
and requires that, even in the case of joint tenants, they hold the legal
estate as joint tenants on trust for themselves as joint tenants in equity:
section 36(1). It was suggested that the interposition of this statutory trust
for sale has altered the position: since Mr Monk and Mrs Powell held the legal
estate in the periodic tenancy as trustees and trustees must act unanimously,
neither of them individually could give a valid notice to quit.
In my view,
this submission fails. The trust property in question was a periodic tenancy.
As between the lessor and the lessees the nature of the contract of tenancy
cannot have been altered by the fact that the lessees were trustees. The
tenancy came to an end when one of the lessees gave notice to quit. It may be
that, as between the lessees, the giving of the notice to quit was a breach of
trust, theoretically giving rise to a claim by Mr Monk against Mrs Powell for
breach of trust. Even this seems to me very dubious, since the overreaching
statutory trusts for sale imposed by the Law of Property Act 1925 do not
normally alter the beneficial rights inter se of the concurrent owners:
see Re Warren [1932] 1 Ch 42 per Maugham J at p 47; Bull v
Bull [1955] 1 QB 234. But even if, contrary to my view, the giving of the
notice to quit by Mrs Powell was a breach of trust by her, the notice to quit
was not a nullity. It was effective as between the lessor and the lessees to
terminate the tenancy. The fact that a trustee acts in breach of trust does not
mean that he has no capacity to do the act he wrongly did. The breach of trust
as between Mrs Powell and Mr Monk could not affect the lessors unless some case
could be mounted that the lessors were parties to the breach, a case which Mr
Reid, for Mr Monk, did not seek to advance. Therefore, in my judgment, the 1925
legislation does not affect this case.
For these
reasons and those given by my noble and learned friend Lord Bridge, I, too,
would dismiss this appeal.
