Agricultural holdings — Yearly tenancy expressed to commence on September 29 — Whether notice to quit and deliver up possession on September 28 valid
By an
assignment dated January 31 1968 the appellant tenant acquired a tenancy of an
agricultural holding granted on December 19 1968 and expressed to have
commenced on September 29 1968 and to ‘… continue from year to year until
determined by either Landlord or Tenant on the 29th day of September in any
year by 12 months’ notice in writing’. Following the failure of the tenant to comply
with notices to remedy, the landlords served a notice to quit on July 27 1992
requiring the tenant to deliver up possession on September 28 1993. The
validity of the notice to quit was referred to arbitration and the arbitrator
was requested to state a special case as to its validity to the county court.
The tenant appealed the decision of the county court judge that the notice to
quit was valid and effective.
agreement was made on December 19 1968, the term was expressed to commence on
September 29 and thereafter continued from year to year. A valid 12 months’
notice to quit to determine a tenancy from year to year, commencing on
September 29 1968, may specify either September 28 or 29 in a subsequent year
as the date for delivery of possession because the tenancy would be construed
as ending on the last moment of the 28th or on the first moment of the 29th.
The agreement did not require 12 months’ notice in writing expressed to expire on
the 29th.
The following
cases are referred to in this report.
Crate v Miller [1947] KB 946; [1947] 2 All ER 45; [1947] 63 TLR 389
Sidebotham
v Holland [1895] 1 QB 378
This was an
appeal by the tenant, Michael J Von Gerard, from a decision of Judge Slot, who
on February 8 1994 in Reigate County Court, determined the validity of a notice
to quit served by the respondent landlords, Reigate and Banstead Borough
Council, in a case stated for the opinion of the court by the arbitrator, WJ
Yeandle.
John Cherryman
QC and Jonathan Coggins (instructed by the solicitor to Reigate and Banstead
Borough Council) appeared for the landlords; the appellant, Mr Von Gerard,
appeared in person and was not represented.
Giving the
first judgment, Leggatt LJ
said: Michael Von Gerard appeals against the order of Judge Slot made on
February 8 1994 whereby he ordered that notice to quit, with which he was
concerned, was a valid notice. The matter came before the judge in these
circumstances.
By a lease
granted by the respondent council, then Banstead Urban District Council, a
leasehold interest was granted to a Mr Gordon in 1953 of the land at Rookery
Farm, Mogador Road, Tadworth, Surrey, which is the subject of this dispute. Mr
Gordon then assigned his interest to a Mrs Bell. By a deed of surrender of
December 18 1968, Mrs Bell surrendered her interest to the council and, on the
following day, a tenancy agreement was entered into by the council with a Mr
Shipton. Notwithstanding that it was entered into on December 19 1968, it was expressed
to commence on September 29 1968 and, as was provided by clause 2:
… continue
from year to year until determined by either Landlord or Tenant on the 29th day
of September in any year by 12 months’ notice in writing.
In due course,
Mr Shipton assigned his leasehold interest to the appellant, Mr Von Gerard.
That occurred on January 31 1986. By notices to remedy of March 31 1992, the
council called on Mr Von Gerard to remove from the land a mobile home and a
barn which he had erected on the land in breach of covenant. Because neither of
those notices was complied with within the time allowed, the council served a
notice to quit on Mr Von Gerard of July 27 1992. That notice required Mr Von
Gerard to deliver up possession of the holding on September 28 1993. He did not
do so and in due course the matter was referred to an arbitrator, Mr Yeandle.
He in turn stated a special case for the opinion of the court. The question of
law submitted was:
Whether the
Notice to Quit dated 27th July 1992 requiring the Tenant to deliver up
possession of the agricultural holding on 28th September 1993 was valid and
effective at common law to determine the tenancy of the agricultural holding in
accordance with clause 2 of the Tenancy Agreement dated 19th December 1968.
It was that
question which the judge answered in favour of the council. Hence the present
appeal. The judge did so by reference in particular to the case of Sidebotham
v Holland [1895] 1 QB 378 and Crate v Miller [1947] 2 All
ER 45, to both of which it will be necessary to refer briefly later in this
judgment.
Before this
court, Mr Von Gerard, who, if I may say so, has conducted his case with
commendable brevity and effectiveness, takes two points, the first of which, as
we understood it, was not taken before the judge and finds no place, therefore,
in his judgment. Mr Von Gerard has explained that it is only by reference to
documents that he has recently obtained that he is able to take his first
point. It is that Mr Shipton took possession of the land from December 19 1968,
and so only from that date could his tenancy have run, notwithstanding that it
was expressed to run from September 29 1968. Mr Von Gerard contends that it was
not possible for the council to pass to Mr Shipton a possessory interest in
respect of a period during which they had no right to possession, because Mrs
Bell had not yet surrendered her lease.
Mr Von Gerard
argues that in those circumstances there came into being an agricultural
tenancy from year to year, which would therefore have begun on December 19 1968
and had its terminal date on December 18 in each of the ensuing years. A notice
to quit, as he submits, must be based on the tenancy pursuant to which it is
served, and the anniversary date for notice under the agricultural tenancy,
which he says was the only tenancy validly subsisting, must therefore have
ended on 18th or, as it may be, December 19. Since the notice to quit served
upon him indisputably was not expressed to terminate the tenancy on either of
those dates, it was not effective to terminate the tenancy.
To that the
response of Mr John Cherryman QC, for the council —
that the previous tenancy had nothing to do with the tenancy agreement granted
to Mr Shipton and subsequently assigned to Mr Von Gerard. It is true that no
leasehold interest vests in a lessee until a lease is actually granted but, as
Mr Cherryman points out, it is common practice to create a term calculated by
reference to a past date, usually for the purpose of making the date of
commencement coincide with a quarter day. That is what, he submits, occurred
here.
I accept that
argument. It seems to me that whatever the position might have been as to the
rent payable by Mr Shipton in respect of the period between September 29 and
December 19 1968, no such consideration can affect the term of the tenancy
which was expressed by the agreement to commence on September 29 1968 and to
continue from year to year thereafter until determined on September 29 by 12
months’ notice in writing.
The second
point which Mr Von Gerard makes was that relied upon before the judge, namely
that because the notice to quit required the delivery up of possession on
September 28 1993, it did not comply with clause 2 of the tenancy agreement
which required that the tenancy be determined on September 29 in any year. It was
that consideration which moved the single lord justice to give leave to appeal.
The judge, in
the light of the cases I have mentioned, determined this point in favour of the
council, saying at para 11 of the transcript of his judgment:
Clause 2
means that the tenancy shall continue until notice is given which brings the
tenancy to an end on September 29. On its proper construction the tenancy
continues until the end of the year which ends at midnight on the 28th. The
agreement is to be construed as an agreement from year to year which comes to
an end at the last moment of the 28th, that is what is meant by determining ‘on
the 29th’. It does not mean that the tenant has an extra day to quit. It means
that the tenant has until the end of the 28th and that come the 29th he has no
right to remain. The tenancy comes to an end on the first moment of the 29th or
the last moment of the 28th.
On that basis
the judge held the notice to quit to be clearly valid. The case which decides
this point is Sidebotham v Holland. In a reserved judgment,
Lindley LJ, with whom Lord Halsbury concurred, said at p383:
The validity
of a notice to quit ought not to turn on the splitting of a straw. Moreover, if
hypercriticisms are to be indulged in, a notice to quit at the first moment of
the anniversary ought to be just as good as a notice to quit on the last moment
of the day before.
The court in
that case was concerned with the letting of a house commencing on May 19 1890
and the notice to quit was expressed to take effect on May 1894. Lindley LJ
said at p384:
In the
absence of authority compelling me to decide differently, I hold the objection
that the notice was bad because it was a notice to quit on the 19th instead of
the 18th of May untenable.
That decision
has subsequently been followed by this court in Crate v Miller
[1947] 2 All ER 45. After reviewing the case of Sidebotham v Holland
Somervell LJ, delivering the judgment of the court, said at p46:
As we read
that decision, it is based, first, on the view that, on the dates in question
there, the tenant had to quit and deliver up possession by midnight at the end
of May 18; secondly, that a notice to quit and deliver up possession either on
the 18th or on the 19th could be construed as a notice to quit at that moment
of time, being the end of the period, in that case a year, which began on the
previous May 19.
The lord
justice then cited the reference by Lindley LJ to that point and himself added:
In other
words, a notice to quit on either day could be construed as a notice to quit
when the current period in question ended. As a matter of language a notice
‘terminating a tenancy’ on the last day of a current period (which the form
used in the present case) may, apart from Sidebotham v Holland,
fairly be said to mean the same thing as a notice to quit and deliver up
possession on the following day, for in both cases the landlord is intimating
that the last day of the current period is to be the last day of the tenancy.
Mr Von Gerard
argues that, irrespective of the position at common law, on a true construction
of the tenancy agreement it was necessary for the notice to quit to be
expressed to expire on September 29, if there was to be due compliance with the
requirements of clause 2.
In my
judgment, a valid 12 months’ notice in writing to determine the tenancy from
year to year, commencing on September 29 1968, may, if given in time, specify
either September 28 or 29 in a subsequent year as the date for delivery of
possession because the tenancy would be construed as ending on the last moment
of the 28th or on the first moment of the 29th. In other words, because they
both identify the end of the relevant period of 12 months, they mean the same
as each other in this context. It follows that the tenancy determined on
September 29, as, to be valid under clause 2, it was required to do. The
agreement did not require 12 months’ notice in writing expressed to expire on
that day. It should be said that Mr Cherryman derives some assistance by the
contrast between the provision of the tenancy agreement and section 25 of the
Agricultural Holdings Act 1986, subsection (1) of which provides:
A notice to
quit an agricultural holding … shall … be invalid if it purports to terminate
the tenancy before the expiry of twelve months from the end of the then current
year of tenancy.
That is not
what the notice to quit in the present case purported to do for the reasons
that I have given.
It may be said
that by raising this arid legal dispute, the appellant has at least been able
to retain possession of the land for 18 months beyond his allotted span.
However, for the reasons I have given, both the points which he has carefully
and lucidly argued fail, and this appeal should be dismissed.
Agreeing, Roch LJ said: The tenancy agreement
was made on December 19 1968 between the local authority and a Mr Shipton.
Tenant’s interests were assigned to the appellant on January 31 1986. There is
no ground, in my judgment, for challenging the validity of the tenancy
agreement, and indeed, the validity of the tenancy agreement was not challenged
until the hearing of the appeal today.
The grounds of
Mr Von Gerard’s appeal are instructive. The first ground is that the notice to
quit is not valid as it requires the tenant to vacate on a date not being the
date stated in the tenancy. As the notice seeks to enforce an act of
far-reaching consequences, namely the eviction of the tenant from his home and
place of work, the notice must conform in the strictest terms with the tenancy
agreement.
The second
ground is that the notice to quit has been served pursuant to the service of
notices to remedy. The notices to remedy were served on the grounds of failure
to comply with a strict interpretation of the tenancy agreement; the
application of the tenancy agreement is not consistent between notices to
remedy and notice to quit.
The third
ground is that if a strict application of the terms of the tenancy agreement
were not required, then the notices to remedy are not valid and the notice to
quit is consequently not valid.
The fourth
ground is that Judge Slot held that the tenant’s submission that the notice was
not valid as it did not comply with the agreement was nit-picking. The tenant
submits that what constitutes a reasonable course of action can only be viewed
with sufficient background information and therefore wishes to present new
evidence and correspondence between the parties involved demonstrating their
interpretation of the tenancy.
The point
raised in the notice of appeal was simply that the notice to quit did not
comply with clause 2 of the tenancy agreement because it purported to terminate
the tenancy agreement on September 28 and not, as clause 2 required, on the
29th. That was the issue in the case stated by Mr Yeandle, the arbitrator.
Clause 2 provides:
The tenancy
shall commence on the 29th day of September 1968 and continue from year to year
until determined by either Landlord or Tenant on the 29th day of September in
any year by 12 months’ notice in writing.
That clause
has to be read in this way in the light of authorities which include two
decisions of this court, namely Sidebotham v Holland [1895] 1 QB
378, and Crate v Miller [1947] 2 All ER 45, that: the tenancy
commences on September 29; each subsequent year likewise starts at the first
moment of September 29; and the year ends at the last moment on September 28 in
the following year.
Lindley LJ in
the case of Sidebotham v Holland at p382, in a case where the
agreement was made on May 19 1890, said:
Having regard
to the decision in Clayton’s Case, I think that, although the agreement was
signed on the 19th, and the tenant can hardly in fact have been in possession
the whole of that day, yet, in point of law, that day must be treated as the
first day of the tenancy and as part of the term for which the house was agreed
to be let. The tenancy cannot, therefore, be treated as commencing on the 20th
to the exclusion of the 19th. One year from that day, but including that day,
would expire at midnight of the 18th of the next May …
The lord
justice then set out two further authorities.
The
significant provision concerning the notice to quit in clause 2 of this tenancy
agreement, in my view, is that it should be for 12 months and coincide with the
year of the tenancy agreement. The words ‘determined on the 29th of September
in any year’ means that the tenancy is to end at the first moment of September
29. A 12 months’ notice will mean a 12 months’ notice to quit and will remain a
12 months’ notice to quit, whether it is expressed to end on September 28 — in
which case it will take effect at the last moment of September 28 — or whether
it is expressed to take effect on September 29, when it would take effect at
the first moment of that day.
I agree with
my lord that this appeal should be dismissed for those reasons.
Leave to
adduce further evidence granted.
Appeal
dismissed.
