Landlord and tenant — Action for possession of a field — Estoppel — Tenancy to which Part II of Landlord and Tenant Act 1954 applied — Field used for purposes of running livery stables and a riding school — Tenant’s notice under section 26 of 1954 Act requesting a new tenancy invalid because her tenancy was not for a term of years certain exceeding one year but was a periodic tenancy — Landlord submitted that, because of tenant’s service of a request for a new lease and her solicitors’ insistence that she was entitled to apply for a new lease, he must be taken to have refrained from serving a notice to determine under section 25 and thereby suffered a detriment — Held that there was no evidence that landlord refrained from serving such a notice because he believed that tenant’s request was valid — Greasley v Cooke distinguished — In any case it was doubtful whether an estoppel could be relied on to enable the court to make an order for possession when the tenancy had not in fact been determined in any of the ways laid down by Part II of the 1954 Act — Landlord’s appeal against county court judge’s order in favour of tenant dismissed
This was an
appeal from a decision of Judge Tibber at Edmonton County Court dismissing an
action for possession by Ernest John Watkins, the plaintiff and present
appellant, against Mrs Christine Emslie, the defendant and present respondent.
The proceedings related to the possession of a field at Enfield in Middlesex of
which the respondent was the tenant and the appellant the landlord.
J Lindsay QC
and R C I’Anson Banks (instructed by Kenneth Shaw & Co) appeared on behalf
of the appellant; K H Zucker QC and M Warwick (instructed by Tyrer Roxburgh
& Co) represented the respondent.
Giving the
first judgment at the invitation of Stephenson LJ, SIR DAVID CAIRNS said: This
is an appeal from two judgments of His Honour Judge Tibber, sitting in the
Edmonton County Court. Both judgments were given in an action whereby the
plaintiff, Mr Watkins, sought an order for possession of a field at Enfield in
Middlesex against the defendant, Mrs Emslie. The first judgment was given on
February 16 1981 on a preliminary point, which the learned judge decided in
favour of the defendant; the second judgment was given two days later, when he
dismissed the action, and the plaintiff appeals against both those judgments.
There was a
previous action between the same parties, the defendant being at that time
unmarried and sued in her maiden name of Healy. In that action the plaintiff
contended that the defendant was a trespasser on the field, but the same judge
on March 3 1980 held that she was a tenant and dismissed the action for
possession.
In the second
action the plaintiff, by his particulars of claim, alleged that the defendant
was a tenant up to May 31 1980 but that the tenancy was determined on that day
and she had continued using the field as a trespasser. The reason why he said
that the tenancy had determined on that date was this: on September 29 1979 her
solicitors on her behalf had served on the plaintiff a notice under section 26
of the Landlord and Tenant Act 1954 requesting him to grant her a new lease as
from June 1 1980. Section 26 is in Part II of the 1954 Act, which of course
applies to business tenancies, and the relevant provisions of the section are
subsection (1) and subsection (5).
Subsection (1)
reads:
A tenant’s
request for a new tenancy may be made where the tenancy under which he holds
for the time being (hereinafter referred to as ‘the current tenancy’) is a
tenancy granted for a term of years certain exceeding one year, whether or not
continued under section 24 of this Act, or granted for a term of years certain
and thereafter from year to year.
Subsection (5)
provides as follows:
Where a tenant
makes a request for a new tenancy in accordance with the foregoing provisions
of this section, the current tenancy shall, subject to the provisions of
subsection (2) of section 36 of this Act and the provisions of Part IV of this
Act as to the interim continuation of tenancies, terminate immediately before
the date specified in the request for the beginning of the new tenancy.
Neither
section 36 nor anything in Part IV was applicable. So if the defendant was a
tenant, and if it was a business tenancy and if she held for a term of years
certain exceeding one year, the effect of her notice was to determine the
tenancy on May 31 1980.
By her defence
the defendant denied that the tenancy had been within the Landlord and Tenant
Act, and averred that it was a tenancy of an agricultural holding within the
Agricultural Holdings Act 1948 as amended. As an alternative, she averred that
if it was not within the 1948 Act it was within the 1954 Act.
The plaintiff,
by his reply, contended that the defendant was estopped from denying that the
tenancy was protected by the 1954 Act by reason of the notice given in
September 1979 requesting a new tenancy, and by repeated assertions by her
solicitors on her behalf that the tenancy was so protected, and by her pleading
in the first action that it was protected by the 1954 Act, and by the judge
having found that it was. On similar grounds he contended that she was estopped
from saying that the September 1979 notice was not a valid notice.
Now, it was
indeed correct that the learned judge had said, at the end of his judgment in
the first action: ‘My findings are therefore that Mr Healy and now Miss Healy
are tenants. They were tenants for the running of livery stables and a riding
school for the purpose of the Landlord and Tenant Act 1954’.
The
preliminary issue that the judge heard on February 16 1981 was as to whether
that finding created an estoppel. He held that it did not, because the question
of what type of tenancy it was was not an issue in the first action.
Then, in his
second judgment, on February 18, dealing with the other estoppels alleged, he
held that none of the representations created an estoppel because none of them
was relied upon by the plaintiff.
The plaintiff
appeals to this court solely on the basis that the learned judge was wrong in
his conclusions as to estoppel. The defendant, by a respondent’s notice, seeks
to support the judgment on the additional ground that the tenancy was under the
Agricultural Holdings Act, and that therefore the learned judge had no
jurisdiction to order possession; alternatively that, even if the tenancy was
within the Landlord and Tenant Act, it was not one which entitled her to obtain
a new lease, because the notice under section 26 was a nullity.
That was how
the matter stood until the early days of last week, but the defendant’s
solicitors on her behalf told the plaintiff’s solicitors about a week ago that
the defendant would no longer contend that her tenancy was not within Part II
of the 1954 Act. Mr Zucker, who appeared in this court on behalf of the
defendant, confirmed to us that that was so, saying that in his submission the
evidence which she gave in February of this year, and which the judge accepted,
established that the tenancy was indeed a business tenancy within that Act. It
is therefore now common ground that this was the character of the tenancy. In
case anybody should hereafter wish to resile from that common ground, I may say
that I have considered the evidence, and am quite satisfied that it was indeed
a tenancy to which Part II of the 1954 Act applies.
It is accepted
by Mr Lindsay, on behalf of the plaintiff, that the defendant’s tenancy was not
in fact for a term of years certain exceeding one year; it was probably a
weekly or a monthly tenancy. Accordingly, he concedes that the only basis on
which he can succeed in this appeal is on the ground of estoppel. The alleged
estoppel, which was the subject of the preliminary issue, is now unnecessary
and unhelpful to the plaintiff — unnecessary, because it is now agreed that
there was a tenancy to which Part II of the 1954 Act applies; unhelpful,
because it does not relate to the term or period of the tenancy.
What is still
relied upon is the service of the notice requesting the new tenancy, the
putting of that notice in evidence at the hearing of the action and the
insistence by the defendant’s solicitors on her behalf of her right to claim a
new tenancy in pursuance of that notice. Mr Banks, junior counsel for the
plaintiff, drew our attention in particular to the fact that after the judgment
had been given on March 3 1980, by which the plaintiff’s contention that there
was no tenancy at all had been rejected, the defendant’s solicitors continued
to rely on the request made in September 1979 for a new lease.
The argument
on behalf of the plaintiff is that it was because of the service of the request
for a new lease and of the insistence of the defendant’s solicitors that she
was entitled to apply for a new lease that the plaintiff must be taken to have
refrained from serving a notice to quit under section 25, and thereby suffered
a detriment in delaying the date at which he might be able to obtain
possession.
There was in
fact no evidence by the plaintiff that he ever placed any reliance on the
request or on the defendant’s solicitors’ letters, and indeed it is clear from
the way in which his case was presented in the first action and from the
evidence that he gave at the hearing of that action, that the reason why he did
not serve a notice to quit under section 25 was that it was his case that the
defendant was never a tenant at all.
It is true
that after March 3 1980 he could no longer rely on that view; but on March 17
1980 the plaintiff’s solicitors wrote to the defendant’s solicitors giving
reasons why a new tenancy should not be granted and saying ‘We will undoubtedly
be instructed to serve notice to quit on your client’. But they did not do so,
and on April 25 1980 the defendant’s solicitors pointed out that there had
never been such a tenancy as entitled the defendant to apply for a new lease.
Still no notice to quit was served, and the plaintiff started the new action in
July 1980. In the circumstances I find it impossible to say that there was any
evidence that the plaintiff refrained from serving a notice to quit because he
believed, or his legal advisers believed, that the request for a new tenancy
was a valid request — and indeed, Mr Lindsay realistically did not contend that
there was any such evidence.
However, Mr
Lindsay relied on the decision of this court in Greasley v Cooke
[1980] 1 WLR 1306. In that case a woman had lived in a house, first as a
living-in maid to the owner and his sons, and later, after the death of the
father, as an unpaid housekeeper to the family, and later still as the sole
occupant of the house. An action for possession was brought against her, which
she defended, and she counterclaimed for a declaration that she was entitled to
occupy the house for the rest of her life if she wanted to. Her case was that two
of the sons had given her assurances which led her to believe that she could
regard the house as her home for the rest of her life, and her counsel’s
contention was that she acted to her detriment by continuing to render services
to the family without payment as a result of her belief that she would be able
to remain there. The contention on her behalf was that she was entitled to
succeed in her defence and counterclaim on the ground of a proprietary
estoppel.
The county
court judge who heard the case, while accepting her evidence, held that there
was no estoppel, because she had failed to prove that it was as a result of her
belief that she continued to render the services. The Court of Appeal allowed
her appeal, holding that the court should infer that it was because of the
assurances given to her that she had so continued.
The Master of
the Rolls, at p 1311, in the course of his judgment said:
These
statements to Miss Cooke-that is, the defendant, and the statements were the
assurances that I have referred to-were calculated to influence her-so as to
put her mind at rest — so that she should not worry about being turned out. No
one can say what she would have done if Kenneth and Hedley had not made those
statements. It is quite possible that she would have said to herself: ‘I am not
married to Kenneth. I am on my own. What will happen to me if anything happens
to him? I had better look out for
another job now; rather than stay here where I have no security’.
So, instead
of looking for another job, she stayed on in the house looking after Kenneth
and Clarice. There is a presumption that she did so, relying on the assurances
given to her by Kenneth and Hedley. The burden is not on her, but on them, to
prove that she did not rely on their assurances. They did not prove it, nor did
their representatives. So she is presumed to have relied on them. So on the
burden of proof it seems to me that the judge was in error.
Waller LJ, at
p 1312, from G to H, said:
It was a
difficult question — not a simple question — which the judge had to consider;
and one cannot help being sympathetic in that he had to consider it in the
absence of argument from the plaintiffs, and, as an explanation for his getting
the onus of proof wrong in this particular case, that is probably the main
reason. However, I am satisfied that he did, unfortunately, and that he was in
error in the way in which he put the onus of proof.
Dunn LJ
agreed; at the foot of p 1313 he said:
The judge
considered his judgment and found for the defendant on every point except one,
and that is the only point that we can consider on this appeal. It is a narrow
point. There is no doubt that for proprietary estoppel to arise the person
claiming must have incurred expenditure or otherwise have prejudiced himself or
acted to his detriment. The only question before us is as to the burden of
proof of the detriment. The judge thought that the onus lay on the claimant to
prove it. I agree that in that he fell into error for the reasons given by Lord
Denning MR and I also would allow this appeal.
The present
case is not one of proprietary estoppel. It is not one of any assurances being
given. It is not one in which the plaintiff is alleged to have acted in a
particular way in reliance on what was said or done by or on behalf of the
defendant, but only that he refrained from acting; that is to say, from serving
a notice to quit under section 25. However, the plaintiff here knew perfectly
well that there had been no letting for a term of years of more than a year; he
was advised by solicitors, and I very much doubt if the service of the notice,
or the letters written by the defendant’s solicitors, could be said to be
calculated to make him believe, despite the clear words of section 26(1), that
the notice was a valid one.
Further, since
sections 24 to 27 lay down strict rules as to how a tenancy within Part II of
the Act can be terminated, I am by no means satisfied that an estoppel can be
relied on to enable the court to have jurisdiction to make an order for
possession when the tenancy has not in fact been terminated in any of those
ways.
If the
plaintiff can clear all those fences — and if the onus was on the defendant to
establish that it was not by reason of any representation on her behalf that
the plaintiff did not serve a notice to quit — I am of the opinion that the
onus was discharged. The judge found as a fact that the plaintiff did not
refrain from granting a new lease because of the defendant’s notice, but
because he was alleging that there was no tenancy. In my judgment, the judge
rightly so found. He made no reference to what occurred after March 3 1980, but
it is abundantly clear that the plaintiff’s solicitors were persuaded that the
tenancy was a business tenancy, not because of the defendant’s notice, or her
solicitors’ letters, but because of the judge’s finding. On March 17 they were
taking the view that the plaintiff was entitled to serve a notice to quit under
section 25. This was inconsistent with the defendant’s notice being a valid
notice, because section 26(4) expressly provides that no notice to quit shall
be given after the making by the tenant of a request for a new tenancy.
For those
reasons I would dismiss this appeal.
DONALDSON LJ:
I agree.
STEPHENSON LJ:
I also agree.
