Agricultural holding — Farmhouse residence obligation in agricultural tenancy agreement — Alleged remediable breach — Tenant serving a sentence in prison — Notice to remedy given under Case D(b) in section 2(3) of Agricultural Holdings (Notices to Quit) Act 1977 — Arbitration required by tenant — Questions of law submitted by arbitrator for opinion of county court judge — Appeal from judge’s decision — Questions were (1) Whether on the facts there had been a breach of the obligation, (2) Whether breach, if established, was remediable or irremediable, (3) if a remediable breach, was tenant entitled to rely on his imprisonment and the length of sentence as factors to be taken into account in determining what is a reasonable period for remedying the breach? — Judge, instead of answering the first question with a clear affirmative, gave a ruling that on the facts as stated the arbitrator could properly come to the conclusion that the tenant was in breach — The judge ruled that the breach was remediable and, in reply to the third question, said that the arbitrator could take into account the fact of the tenant’s imprisonment and the probable release date — Court of Appeal held that the judge’s answers to the second and third questions were correct, but that, in reply to the first question, he should have answered with a clear affirmative that there was a breach — Tenant had been sentenced to four years’ imprisonment for the offence, committed against his wife, of causing grievous bodily harm — Taking account of the time spent on remand in custody and the probable result of parole, the possibility was of some 16 months’ absence from the farmhouse — Court of Appeal in construing the covenant ‘to reside constantly at the farmhouse’ rejected the submission that the essence of it was simply to make the farmhouse the tenant’s permanent home — The correct approach was that of Singleton LJ in Lloyds Bank Ltd v Jones, namely, that the object was to ensure that the tenant would personally be living in the farmhouse with sufficient continuity to supervise the performance of the contract, including all the obligations comprised in ‘good husbandry’ — In the present case the tenant’s enforced absence, taking into account the probability of parole, constituted a breach of the residence obligation — The analysis given in the judgments of the distinction between remediable and irremediable breaches should be noted — Appeals dismissed, with variation of judge’s answer to first question
These were an
appeal by the landlord, Enid Sumnal, and a cross-appeal by the tenant, Peter
Garnett Statt, from a decision of Judge Geoffrey Jones, at Ashby-de-la-Zouch
County Court, on a special case stated by the arbitrator, Paul H Joseland MA
FRICS CAAV, raising questions concerning a farmhouse residence covenant in a
tenancy agreement relating to Potwells Farm, Normanton-le-Heath.
APS De Freitas
(instructed by Collyer Bristow, agents for Fishers, of Ashby-de-la-Zouch)
appeared on behalf of the landlord; PWE Taylor QC and Spencer G Maurice
(instructed by Gouldens, agents for Crane & Walton, of Ashby-de-la-Zouch)
represented the tenant.
Giving
judgment, CUMMING-BRUCE LJ said: By section 2(1) of the Agricultural Holdings
(Notices to Quit) Act 1977, where notice to quit is given to a tenant of an
agricultural holding and the landlord is served with the requisite
counternotice, the notice to quit does not have effect unless the agricultural
land tribunal consents to its operation. By section 2(2), section 2(1) shall
not apply in any of the
concerned is Case D(b), which reads as follows:
Case D — at
the date of the giving of the notice to quit the tenant had failed to comply
with a notice in writing served on him by the landlord, being either —
(b) a notice requiring him within a reasonable
period specified in the notice to remedy any breach by the tenant that was
capable of being remedied of any term or condition of his tenancy which was not
inconsistent with the fulfilment of his responsibilities to farm in accordance
with the rules of good husbandry,
and it is
stated in the notice to quit that it is given by reason of the matter
aforesaid.
Subparagraph
(b) deals with breaches which were capable of being remedied. That may be
compared with the case in Case E, which provides for breaches not capable of
being remedied:
Case E — at
the date of the giving of the notice to quit the interest of the landlord in
the agricultural holding to which the notice relates had been materially
prejudiced by the commission by the tenant of a breach, which was not capable
of being remedied.
So the
distinction between the situation that arises on Case D and the situation that
arises on Case E is that, where the landlord relies on Case D(b), he has to
serve a notice requiring the tenant within a reasonable period specified in the
notice to remedy the breach, being a breach capable of being remedied; whereas
in Case E the landlord has to prove not only a breach but that he has been
materially prejudiced by the commission by the tenant of a breach which was not
capable of being remedied.
Rules made
pursuant to section 5 of the Act provide for determination by arbitration under
the 1948 Act of any question arising under section 2(2). The arbitrator has
power to state a case for the opinion of the county court on any question of
law under the provisions of the Sixth Schedule to the 1948 Act.
In the instant
case the tenant gave notice requiring arbitration. The arbitrator was seized of
the case. The parties appeared before him and the arbitrator stated a case for
the opinion of the county court in the following terms:
SPECIAL CASE
Stated for the
Opinion of the Court by:
Paul Hird
Joseland, MA, FRICS, CAAV, of Messrs Nock and Joseland, 48 Queen Street,
Wolverhampton, West Midlands, the Arbitrator in the above mentioned
Arbitration.
Schedule of
Agreed Facts:
(1) The Tenant is the Tenant of Potwells Farm
Normanton-le-Heath and the Landlord is the Landlord under the terms of an
Agreement in writing between the parties made August 10 1962;
(2) Clause 18 of the said Agreement obliges the
Tenant to reside constantly at the farmhouse;
(3) The Tenant shot his wife and on November 19
1982 at Leicester Crown Court pleaded guilty to a charge of grievous bodily
harm and was sentenced to four years imprisonment. The Tenant was in custody
pending his trial from August 12 1982;
(4) On December 10 1982 at Her Majesty’s Prison
Welford Road, Leicester there was served on the Tenant a Notice from the
Landlord by which she required him to remedy within three months the breaches
therein alleged namely that he had not resided at the farmhouse since August
1982 and was not then residing at the farmhouse;
(5) On March 14 1983 at Her Majesty’s Prison
Welford Road, Leicester there was served on the Tenant a Notice to Quit from
the Landlord under Case D of Section 2(3) of the Agricultural Holdings (Notices
to Quit) Act 1977;
(6) At all times since November 19 1982 the
Tenant has been in prison and is there at present.
The Landlord
contends that the Tenant has been in breach of Clause 18 of the Tenancy
Agreement; that the breach was a remediable breach and that the time of three
months permitted for remedying the breach was reasonable.
The Tenant
contends that there has been no breach of Clause 18, that even if there was a
breach it was irremediable and that a reasonable period was either four years
from November 19 1980 or such period as would elapse to the June Quarter Day
1984.
The questions
of law submitted for the Opinion the Court are:
(1) Do the agreed facts constitute a breach by
the Tenant as at December 10 1982 of his obligation to reside constantly at the
farmhouse?
(2) Is a breach of that obligation a remediable
breach or an irremediable breach?
(3) If there has been a breach and the breach is
remediable is the Tenant entitled to rely on the fact that he has been
sentenced to imprisonment and the length of the term of his imprisonment as
factors to be taken into account in determining what is a reasonable period for
the remedying of the breach?
So the
arbitrator submitted three questions of law for the opinion of the court and I
propose to deal with those three questions and the answers of the county court
in succession.
The first
question posed by the arbitrator was: ‘Do the agreed facts constitute a breach
by the tenant as at December 10 1982 of his obligation to reside constantly at
the farmhouse?’ To that question the
learned judge gave the answer: ‘On the facts as stated, there is evidence on
which the arbitrator can properly come to the conclusion that on December 1982
the tenant was in breach of his obligation to reside constantly at the
farmhouse.’
The reasoning
of the judge, as appears from the terms of his judgment, included the following
point:
. . . the
question whether the tenant in this case was in breach of his obligation to
reside constantly at the farmhouse is . . . a question of fact. My task is to
decide whether in law the facts as stated amount to evidence upon which the
arbitrator could properly come to the conclusion that the tenant was in breach
of his obligation.
On this appeal
the point taken on behalf of the landlord was that, though that was the first
question which the learned judge had to ask himself upon the question posed by
the arbitrator, on the facts stated and found in the case the learned judge
should have proceeded to answer the next question: ‘On the facts stated is the
only reasonable answer to the question that there has been a breach of the
obligation?’
On the
cross-appeal the tenant raises before this court a submission that the answer
of the learned judge to the first question should have been ‘No’; so this
problem involves consideration of the meaning of the phrase ‘to reside
constantly at the farmhouse’ in the context in which it appears in clause 18 of
the agreement, which is as follows:
18. To reside
constantly at the farmhouse. Not to assign, underlet or part with the
possession of the farm or any part thereof without the written consent of the
Landlord or his Agent, provided that the Tenant may permit the occupation of
cottages and gardens by men employed on the farm for the purposes of their
employment, and if any of the cottages shall not be so occupied for a period of
six weeks then the Landlord shall have the option without notice of withdrawing
such cottage or cottages or any of them and the gardens attached thereto from
the tenancy on making the Tenant the allowance for each cottage so withdrawn.
Not to let or sell any grass keeping or growing crops thereon or take in
livestock of any other person or persons to keep without the previous consent
in writing of the Landlord.
Clause 18
appears in that list of tenants’ covenants which deal in the usual way with
payment of rent, rates, repairs etc and all the usual covenants which appear in
landlord and tenant agreements relating to an agricultural holding, relating in
different ways to the obligation of the tenant to farm the holding in
accordance with the requirements of good husbandry. But when one comes to
clause 18, the subject-matter gives rise to three separate types of covenant.
The first is ‘to reside constantly at the farmhouse’; the second is ‘not to
assign, underlet or part with the possession of the farm or any part thereof
without the written consent of the landlord’ subject to certain provisions of
detail which follow, and ‘Not to let or sell any grass keeping or growing crops
. . . or take in livestock of any other person . . .’.
The only
authority in which the object of the covenant to reside constantly in the
farmhouse has been considered is the case of Lloyds Bank Ltd v Jones
[1955] 2 QB 298, to which the learned judge referred. That case was concerned
on the facts with the question whether a trustee was under an obligation to
comply with the covenant to reside constantly at the farmhouse. In that context
Singleton LJ, at p 319, said this:
The purpose
of the covenant that the tenant ‘will at all times personally inhabit the
farmhouse’ was to ensure that the person responsible for the rent and for
performance of the covenants should live there; in other words, to avoid having
an absentee tenant, or a tenant who lived elsewhere and farmed through someone
else.
And at p 324,
in the course of his judgment, Jenkins LJ observed:
As to the
position on the death of a tenant, I think that, in as much as it must be taken
to have been within the contemplation of the parties that every tenant must die
at some time, and might do so during the continuance of his tenancy, suspension
of personal occupation for a reasonable time consequent on the death of the
tenant would not amount to a breach of the covenant.
So, Jenkins LJ
is contemplating that the intention of the parties expressed in this covenant
was manifestly not to impose the obligation to reside at the farmhouse with
total continuity, but to give a reasonably liberal construction to the
obligation so as to make it conform with the realistic intention of the parties
having regard to the ordinary incidents of life.
In the
submissions before us, both parties submit that the ordinary incidents of life
must involve short, temporary absences from the farmhouse, and Mr Taylor in his
submission included a list of the kind
continual presence of the tenant at the farmhouse. He gave these illustrations:
Provided that
the farmhouse remains his home, he may leave, for instance —
(i) to
work, or supervise work, in the fields or to inspect them;
(ii) to
market produce or arrange for supplies or services;
(iii) for
a holiday break;
(iv) to
visit a second home;
(v) to
have hospital treatment;
(and then he added two other illustrations which
are more controversial):
(vi) because
kidnapped; or
(vii) becaus4e
incarcerated.
And Mr Taylor
submitted that a hospital patient does not usually reside, or have his home in
the hospital, and (he goes on) so also a prison. The way in which Mr Taylor
developed his submission was as follows. What the parties agreed, by agreeing
that the tenant should reside constantly at the farmhouse, was that the tenant
should have his home throughout at the farmhouse; and if the farmhouse
continued to be the permanent home of the tenant, to which he intended to
return after an absence, for whatever reason, and in which he continued to keep
his chattels and paraphernalia, an absence of a temporary character, even
though it be a long absence, is not a breach of the covenant to reside
constantly at the farmhouse because throughout the absence of the tenant the
farmhouse remains his permanent residence, in which he is constructively
residing when he is not actually upon the premises. That submission led Mr
Taylor to the next stage that, in the case of a tenant who is incarcerated
pursuant to a judicial order either on remand awaiting trial or serving
sentence, the farmhouse throughout remained his home; it is not common sense to
say that, during the period of imprisonment or on remand, the tenant had made
the prison his home: the farmhouse remained his home to which he intended to
return as soon as the judicial authorities or the Home Secretary, pursuant to
powers to remit the sentence or to free from prison on parole, had restored the
tenant to his liberty. And the facts stated, as found by the arbitrator (Mr
Taylor submitted) should be supplemented by facts which were not challenged in
the county court but which were known, or expected, by the parties at the date
of the hearing in the county court, namely that it was expected then that the
tenant would be granted parole and in fact it emerged that, after he had served
his sentence for 13 months, he was granted parole and regained his freedom. I
would accept that those matters which appear, if not admitted, accepted by the
judge as having a high degree of probability at the date of the hearing before
the judge, were facts that this court and the judge were entitled to take into
account in addition to the facts stated by the arbitrator.
In the
illustrations given by Mr Taylor he put, in relation to hospital patients,
that, in the case of the ordinary hospital patient who hopes to go home, the
hospital never becomes his home and his home remains his normal place of
residence to which he intends to return as soon as he is better. Mr Taylor
accepted that there are hypothetical situations in which that might not be the case.
If the hospital patient knew that he was going to spend all his days in
hospital then the situation could arise in which it was not sensible to regard
his former place of residence as still being his home, although it might be
that his family continued to live there; but his personal residence in such a
situation had completely ended. So likewise in the case of a person serving a
sentence of imprisonment; if it is a short sentence, or a relatively short
sentence, Mr Taylor submits that the animus revertendi continues; the
tenant contemplates his ordinary place of residence as still his home and
never, as a matter of common sense arrives at the stage in which the prison can
sensibly be labelled or characterised as his home. Contra, perhaps, in the case
of a prisoner serving an extremely long sentence such as a life sentence or a
long term of years, and in that case, particularly if he was not likely to be
granted parole, it might as a matter of common sense be sensible to say that
the place which had previously been his normal place of residence had ceased to
be his home.
The force of
this submission lies in the point that, for practical purposes and for purposes
of the construction of the obligation in clause 18, the obligation accepted was
simply to make the farmhouse the permanent home of the tenant. The submission
drew force from the way in which the Lord Chancellor Lord Cave, dealt with the
matter in Levene v Commissioners of Inland Revenue [1928] AC 217.
In his speech at p 222 Lord Cave examined the meaning of the word ‘reside’ and
the expression ‘ordinarily reside’ as used in the Income Tax Act. He said this:
My Lords, the
word ‘reside’ is a familiar English word and is defined in the Oxford English
Dictionary as meaning ‘to dwell permanently or for a considerable time, to have
one’s settled or usual abode, to live in or at a particular place’. No doubt
this definition must for present purposes be taken subject to any modification
which may result from the terms of the Income Tax Act and Schedules; but,
subject to that observation, it may be accepted as an accurate indication of
the meaning of the word ‘reside’. In most cases there is no difficulty in
determining where a man has his settled or usual abode, and if that is
ascertained he is not the less resident there because from time to time he
leaves it for the purpose of business or pleasure. Thus, a master mariner who
had his home at Glasgow where his wife and family lived, and to which he
returned during the intervals between his sea voyages, was held to reside
there, although he actually spent the greater part of the year at sea.
And he gave
other illustrations: persons who leave their home for temporary purposes,
without setting up another establishment, and observed that a man may reside in
more than one place; he may have two homes, one in London and one in the
country and be held to reside in both places and be charged with tax in this
country if one of them was in the United Kingdom.
While
recognising, with respect, the full force of Lord Cave’s observation and
reasoning in the context of the fiscal problem with which the house was
concerned, I do not accept that, for purposes of construing clause 18 in the
context of this landlord and tenant agreement, the analysis of Lord Cave was
readily applicable to the obligation accepted by the tenant in this case. I
prefer the approach of Singleton LJ in the case cited, that the object of this
obligation, included among the obligations in clause 18, is to procure that the
tenant personally will be living at the farmhouse with sufficient continuity
personally to supervise the performance of all the obligations which appear in
the list of obligations in the contract, being the obligations agreed by the
tenant, and including all that bundle of obligations which come under the label
of ‘good husbandry’. The object, as I construe the phrase ‘to reside constantly
at the farmhouse’, was to procure such continuity of personal residence on the
part of the tenant as will enable him personally to supervise the farming operation
upon the holding.
For that
reason I do not accept the submission of Mr Taylor that the obligation here
accepted was simply an obligation to make the farmhouse the usual place of
residence of the tenant. Nor do I derive assistance from two other cases cited
before us, Dunston v Paterson 1858 5 CBNS 267, which was
concerned with the question whether a lady who spent a month in gaol was,
during that month, dwelling more than 20 miles from a certain point within the
jurisdiction of a county court (that seems to me an entirely different
question); and likewise I derive no assistance from Powell v Guest
1864 34 LJCP 69, which again is a case which had to consider the meaning of the
word ‘reside’ within seven miles of a borough in a very different context, namely
qualification to vote: though there I observe that Byles J said:
It is not
necessary or convenient to lay down any rules as to which would constitute a
break of residence; but I think this is a fair conclusion to arrive at, viz,
that a legal inability to reside caused by the voter’s own act and not by
misfortune, would break the residence. This case is distinguishable from that
of a man disabled to reside from illness, from that of a militiaman, or of
imprisonment under a capias ad satisfaciendum, or imprisonment with an
option of paying a fine, or under a trumpery charge which is not afterwards
proved.
Though the
context in which the court was then considering the meaning of ‘residence’ was
very different, one observes that Byles J recognises the distinction between
absences due to misfortune or the ordinary incidents of life, as compared with
disablement through a legal sentence of imprisonment.
On the facts
found by the arbitrator, at the date of the notice to remedy the tenant had
been absent from the farm for four months on remand and had just begun to serve
a sentence of four years’ imprisonment. But, on the facts which the learned
judge thought he should take cognisance of, in addition to the facts found by
the arbitrator, having been thus sentenced the tenant was paroled, or expected
to be paroled some 13 months after the commencement of the sentence, and so in
all there was a probability, from the tenant’s point of view of the best case,
that he must be continuously absent from the holding and the farmhouse for a
period of 16 months. In that situation the answer of the learned judge to the
first question posed by the arbitrator was that there was evidence on which the
arbitrator could properly come to the conclusion that, on December 10 1982, the
tenant was in breach of his obligation to reside constantly at the farmhouse.
I accept the
submission made on behalf of the appellant that, though that answer in itself
was perfectly accurate, it was incomplete as an answer to the question posed by
the arbitrator, because on the facts, in my view, there was only one answer
which the arbitrator could reasonably give to the question which he posed to
the court, and only one answer which the learned judge should have given upon
the facts found by the arbitrator, and that answer was an answer in the
affirmative. I would hold that the agreed facts do constitute a breach by the
tenant as at December 10 of his obligation to reside constantly at the
farmhouse.
The second
question posed by the arbitrator to the court was: Is a breach of that
obligation a remediable breach or an irremediable breach? The learned judge answered that question:
‘The breach, if it be so found by the arbitrator, is a remediable breach’.
That
determination is challenged on the cross-appeal. It was submitted on behalf of
the tenant that this was an irremediable breach and Mr Taylor has reminded us
of the contrast between Case D and Case E and has submitted that, in relation
to any particular breach, if the personal capacity of the tenant was such that
the breach cannot be remedied by him, then what would otherwise be a remediable
breach should, for the purposes of the statute, be regarded as an irremediable
breach. I cannot accept that submission. In my view, for the purposes of
distinguishing a remediable from an irremediable breach, it is necessary only
to consider the nature of the breach, and the capacity of the tenant, due to
personal accident, is irrelevant. On the facts of the instant appeal his
absence from the farmhouse, his inability to reside constantly there, could be
remedied at any moment as soon as he was free. In my view the draftsman of Case
D and Case E was contemplating different kinds of breaches, as compared to
breaches of a particular kind which the tenant might or might not at any time
be capable immediately of remedying. I would hold that this was a remediable
breach which could be remedied as soon as the personal difficulty of the tenant
in residing at the farmhouse came to an end, which, according to the sentence,
remission and parole, would vary in any given case; the sentence might have
been for a day, it might have been for a week, it might have been for a month:
it was of four years, overtaken, as was later discovered, by parole after a
period of 13 months. I would reject the submission that the judge was wrong. I
would hold that the judge was right in holding that this was a remediable
breach.
The third
question posed by the arbitrator was this:
If there has
been a breach and the breach is remediable is the tenant entitled to rely on
the fact that he has been sentenced to imprisonment and the length of the term
of his imprisonment as factors to be taken into account in determining what is
a reasonable period for the remedying of the breach?
The learned
judge answered:
The tenant is
entitled to ask the arbitrator to take into account when he is considering the
reasonable length of a notice to remedy, the fact of the tenant’s imprisonment
and his probable release date as ascertainable by the landlord at the date of
the notice to remedy.
This question
arises because the notice which the landlord has served upon the tenant, giving
the tenant notice that he has to remedy the breach, may be questioned upon the
arbitration on the grounds that the notice given by the landlord did not give
the tenant a reasonable notice to remedy the breach. So the question that the
arbitrator has to decide is: in all the circumstances, was the length of the
notice reasonable? In order to answer
that question, in my view the arbitrator has to weigh the factors relied upon
by the landlord, having regard to his interest, as compared to the factors
relied upon by the tenant as factors relevant for giving him a reasonable
opportunity to fulfill his obligations to the landlord as undertaken in the tenancy
agreement. That is to say, the arbitrator, in considering the length of notice
specified in the notice, must look at the covenant and its discharge in the
light of the object of the covenant as described by Singleton LJ in the case
that I have cited. It would give an example of a situation personal to the
tenant which could, in my view, be relevant to the length of the notice. If the
remediable covenant was a failure to do works and the tenant had been unable to
do the works for a period of seven months by reason of shortage of liquid money
or borrowing ability but would be able, as the landlord knew, to do the work in
eight months’ time when his temporary financial difficulty would be relieved,
being a financial difficulty arising from the operations of the farm during a
difficult farming season, it might be that to give the tenant notice to do the
works in seven months would be an unreasonable period when the landlord knew
that in eight months the tenant would be able to do the works. It would be relevant
to consider all the circumstances, the nature of the works of repair, the way
in which the landlord’s interest was affected by the failure to do the works,
and the arbitrator would have to consider whether it was reasonable or
unreasonable in all the circumstances to deprive the tenant of the opportunity
to do the works in eight months instead of seven.
In the instant
appeal, in my view the answer given by the learned judge to the question posed
by the arbitrator was correct. The tenant is entitled to ask the arbitrator to
take into account, when he is considering the reasonable length of the notice
to remedy, the fact of the tenant’s imprisonment and his probable release date
as ascertainable by the landlord at the date of the notice to remedy. In elaboration
of that answer, I would say that, in connection with the landlord’s knowledge
of a probable release date, it is reasonable to take into account not only what
the landlord actually knew about the probable release date but also what he
could reasonably have discovered about the release date if he had made
reasonable inquiries. Amongst the factors to be considered by the arbitrator
was the degree of probability attaching to the expected release date, as
discoverable at the date of the giving of the notice. For those reasons I would
hold that the answer of the judge to the third question was correct.
I would move
accordingly that the judge’s answers to the second and third questions were
correct, and that the judge’s answer to the first question was correct, as far
as it went, but should have gone further and have concluded by answering the
first question ‘yes’. I would move accordingly.
Agreeing, SIR
DENYS BUCKLEY said: The arbitrator is the judge of fact in this matter and he
has referred to the court, under machinery provided by the Agricultural
Holdings (Notices to Quit) Act 1977 in the form of a special case, three
questions to be answered as questions of law. My lord has already referred to
the three questions and I need not read them again.
In answering
those questions the court must not usurp the functions of the arbitrator as the
arbiter of fact, but is required to answer the questions as questions of law,
assuming the facts of the case to be as set out in the agreed statement of
facts which is to be found in the special case.
In my judgment
the first of those three questions, which is whether on the agreed facts there
has been a breach by the tenant as at December 10 1982 of his obligations to
reside constantly at the farmhouse in accordance with the covenant to that
effect contained in clause 8 of the tenancy agreement, should be answered
affirmatively. The question is one of construction of clause 18 of the tenancy
agreement, the relevant words being ‘to reside constantly at the farmhouse’. Mr
De Freitas, on behalf of the appellant, says that the respondent by his own act
has disenabled himself to return to residence in the farmhouse for a period
which makes it clear that he has not resided constantly at the farmhouse within
the meaning of the covenant. He has referred us to what was said by Singleton
LJ in Lloyds Bank v Jones [1955] 2 QB 298, to which my Lord has
already made reference. The language of the covenant there under consideration
appears, for all practical purposes, to be indistinguishable from the language
of the covenant in the present case on the part of the tenant to reside
constantly at the farmhouse. And it appears to me that the objective of that
obligation in the present case was such as Singleton LJ indicated to have been
the objective of the covenant in the Lloyds Bank case. We were referred
to other authorities which my lord has mentioned in the course of his judgment,
but I only refer to them to say that I found none of any assistance in the
present case.
The respondent
has argued on this part of the case that it is sufficient compliance with the
covenant if the farmhouse, throughout the relevant period, has been the
tenant’s home, whether he has been physically present there or not, and that
whether the farmhouse has been his home is a question of fact and degree. Mr
Taylor referred us, in that connection, to what was said in Levene v Commissioners
of Inland Revenue [1928] AC 217. That was a very different case from the
present case, turning, as it did, on the construction and effect of a taxing
statute, and again it gives me no assistance in the determination of the
present case.
We have to
construe clause 18 of the tenancy agreement in the context of that agreement.
It seems to me
that the use of the word ‘constantly’ is a tacit recognition that uninterrupted
physical residence is not required by the covenant which, as a matter of common
sense must be clear beyond doubt. Though periodic absences are permissible,
they must
can reasonably be described as ‘constant’. An enforced absence of four months
and a foreseeable enforced absence of many more months, probably upwards of 12
months, cannot, in my opinion, be regarded as constant residence within such a
clause.
The learned
judge in his answer to the first question in the special case seems to have
been anxious to avoid encroaching on the fact-finding function of the
arbitrator, but for my part I think that he should have answered the question
put to him on the basis of the agreed facts with a clear affirmative.
Upon the
second question the learned judge held that the breach (if there was one) was
remediable. The appellants do not seek to disturb this part of his judgment,
but the respondent contends that the learned judge was wrong in this respect.
The
significance of this question is that, if the breach on the proper view was
remediable, the case falls within section 2(3) Case D of the Act, whereas if it
is to be properly regarded as irremediable, it would fall within Case E of that
subsection. The landlord here gave a notice upon the footing that the breach
was a remediable breach and has not given any notice upon the footing that it
was an irremediable breach.
The respondent
says that, if the covenant requires personal performance by the tenant, the
question whether a breach of it is remediable depends, or may depend, upon the
tenant’s personal ability to comply with it: if, in so far as it may be
impossible to comply with it, it is (they say) irremediable. I find this a not
unattractive argument but I have reached the conclusion that it cannot prevail.
On a reading of sections 2 and 3 of the Act it seems to me that the legislature
has drawn a distinction between breaches which are of their intrinsic nature
capable of being remedied and those which are similarly incapable of being
remedied. An example of the latter would be the cutting down of a tree in
breach of a covenant not to do so; an example of the former would be the
filling up of a ditch in breach of a covenant not to obstruct it. The tree
could not be replaced; the ditch could be reopened, whether or not the
covenantor had the means or ability to do so.
The
distinction lies in the character of the covenant, or of the obligations under
it; not in the capabilities of the covenantor. A covenant to reside constantly
at a particular house, in my judgment, clearly falls in the class of covenant a
breach of which is remediable within the meaning of the Act.
The question
whether the notice served by the landlord in the present case on December 10
1982 was reasonable which is the subject-matter of the third question posed in
the special case, is a question for the decision of the arbitrator, but the
arbitrator seeks directions as to whether, if there has been a breach, and the
breach is remediable, the tenant is entitled to rely on the fact that he has
been sentenced to imprisonment, and the length of the term of his imprisonment,
as factors to be taken into account in determining what is a reasonable period for
remedying the breach. The question whether a notice requiring a breach of
covenant to be remedied within a specified time is reasonable must, in my
opinion, depend on the circumstances of the particular case. In my judgment the
extent to which the landlord is likely to be prejudiced by a prolonged breach
of the covenant and the degree of likelihood that the tenant will be likely, as
a practical matter, to be able to remedy the breach within the time specified
in the notice, are both matters which may be relevant to the arbitrator’s
consideration of what he considers to be reasonable in any particular case.
Indeed, any matter which appears to the arbitrator to bear upon the question
whether the landlord has stipulated a reasonable period within which the tenant
must remedy the breach of covenant should, in my judgment, be taken into
consideration by the arbitrator. The view which he forms will depend upon the
balancing of all such considerations.
Accordingly I
consider that the learned judge correctly answered the third question posed in
the special case. Like my lord I would vary the learned judge’s judgment by
substituting a simple affirmative answer to question one for the answer which
the learned judge gave, but I would not otherwise disturb his decision.
The appeal
was dismissed. The costs of the appeal to the Court of Appeal and of the
application for leave to appeal were reserved to the arbitrator. The order for
costs below was not disturbed.
