Landlord and Tenant Act 1954, Part II — Question as to whether tenant had given due notice under section 29(2) of Act that she would not be willing at date of termination of her tenancy to give up possession — Landlords had given notice of termination in the prescribed form requiring tenant to notify them in writing within two months after their notice whether she was willing to give up possession — Tenant did not give a notice stating her unwillingness, but her solicitors and the landlords’ solicitors had for months been in correspondence about the sale to her of the freehold of the property — A draft contract and conveyance had been approved by the tenant’s solicitors and her signed part of the contract and a cheque for the deposit had been sent to the landlords’ solicitors, to be held to the tenant’s solicitors’ order — Landlords then took the point that the tenant had not notified her unwillingness to give up possession as required by section 29(2) — Held that the county court judge was correct in holding that section 29(2) had been complied with — The correspondence made it absolutely clear that the tenant, who was proceeding with her intention to purchase the freehold, was unwilling to give up possession — No special form of notice was prescribed by section 29(2) — Appeal dismissed
This was an
appeal by the Trustees for the Protection of Ancient Buildings, landlords of a
house called Jacob’s Hall, at Brightlingsea, Essex, from a decision of Judge
Ward at Colchester and Clacton County Court in favour of the tenant, Mrs
Lewington, on a preliminary point under the Landlord and Tenant Act 1954,
namely, whether she had duly notified the landlords under section 29(2) of her
unwillingness to give up possession.
Miss H Williamson
(instructed by Stephenson Harwood) appeared on behalf of the appellants; P
Engleman (instructed by Steed & Steed, of Braintree) represented the
respondent.
Giving
judgment, WALLER LJ said: This is an appeal against a decision of His Honour
Judge Martyn Ward, sitting in the Colchester and Clacton County Court on
November 17 last year, dealing with a preliminary point arising out of the
Landlord and Tenant Act 1954 — the question being whether or not the tenant of
a house owned by the appellants in this matter — The Society for the Protection
of Ancient Buildings — had informed them, the landlords, by notice that she was
unwilling to leave. The learned judge came to the conclusion that the tenant,
not in specific terms but by correspondence which her solicitors were having
with the landlords’ solicitors, had complied, and so he held that the tenant
was entitled to make application for a new tenancy.
The provisions
of the Landlord and Tenant Act 1954 which are relevant to this point are these,
that section 24 provides for the continuation of tenancies and provides,
generally, for the granting of new tenancies. Section 25, which is headed
‘Termination of tenancy by the landlord’, makes provision for the landlord
terminating the tenancy to which ‘this Part of this Act applies’ — that is to
say a tenancy which is a business tenancy. By subsection (1) of that section it
is provided that: ‘The landlord may terminate a tenancy provided’ that certain
things are done. Then it provides that he may do so by ‘a notice given to the
tenant in the prescribed form
subsection (5):
A notice
under this section shall not have effect unless it requires the tenant, within
two months after the giving of the notice, to notify the landlord in writing
whether or not, at the date of termination, the tenant will be willing to give
up possession of the property comprised in the tenancy.
When the
notice has been served, section 29 deals with an application for a new tenancy.
That section is headed: ‘Order by court for grant of a new tenancy’, and by
subsection (2) it is provided:
Where such an
application is made in consequence of a notice given by the landlord under
section 25 of this Act, it shall not be entertained unless the tenant has duly
notified the landlord that he will not be willing at the date of the
termination, to give up possession of the property comprised in the tenancy.
So section 25
says that a notice under this section ‘shall not have effect’ unless it
requires the tenant to notify the landlord in writing whether or not the tenant
will be willing to give up possession of the property. It is therefore clear
there is no jurisdiction in the court to grant a new tenancy under section 29
unless the tenant has given notice, in writing, that he is unwilling to give up
possession.
The background
to this case is as follows, that the tenant Mrs Lewington, is a tenant of a
house called Jacob’s Hall at Brightlingsea. The landlords are The Trustees of
the Society for the Protection of Ancient Buildings — which is a charity. Mrs
Lewington was a tenant of that property under a 21-year lease, which terminated
on June 24 1982. Towards the end of 1981, there were negotiations between the
landlords and the tenant, Mrs Lewington, for the sale of the freehold of that
property. There was a letter from the tenant’s solicitors dated November 18
1981 saying:
We understand
from Messrs F S Daniell & Son that our client, Mrs B L Lewington, has
agreed to purchase the freehold of the above property —
that is
Jacob’s Hall —
for the sum
of £46,500 subject to contract. We shall look forward to hearing from you with
draft contract for approval in due course.
A month later
they are asking if they can have the draft contract and they are told, by
letter, that the draft contract has been forwarded to ‘our clients for their
instructions’. There is further correspondence in February and, at the end of
that month, there is a letter from the landlords’ solicitors enclosing a draft
contract for the approval of the tenant’s solicitors.
Then on March
26 — that is to say about a month later — the landlords’ solicitors write:
We refer to
our letter of February 29 and to our more recent telephone conversation when
you confirmed that you had instructions to accept service on behalf of your
client of the enclosed Landlord and Tenant Act 1954 notice to terminate your
client’s tenancy. We should be grateful if you would endorse the enclosed Copy
Notice with your acceptance of service and return to us.
They then say
in the next paragraph of that letter:
We understand
that you will be in a position to write to us in connection with the draft
contract shortly and look forward to hearing from you.
There are two
acknowledgements, one saying: ‘We have written to our client in some detail on
the draft contract and conveyance and will be in touch with you again shortly’;
and the other thanking them for the notice and returning the top copy duly
endorsed. That letter was dated April 2 1982.
On April 26
the tenant’s solicitors write:
Further to
our letter of April 2 and to our subsequent telephone conversation, we now
return one part of the draft contract and conveyance approved on behalf of the
purchaser. We have forwarded our client’s part of the contract to her for
signature and will send this on to you together with a cheque for the deposit
very shortly.
On May 18 the
tenant’s solicitors write:
Further to
our letter of April 25 we now enclose our client’s part of the agreement duly
signed together with our cheque in the sum £4,650 representing the full 10%
deposit. Would you kindly hold both contract and cheque to our order until we
can telephone you.
Then there is
another paragraph explaining that the financial arrangements have not quite
been made and depend on a survey of the property.
Then on May 22
the landlords’ solicitors write:
We thank you
for your letter of May 18 with its enclosures and confirm that we are holding
your client’s part of the contract and deposit cheque to your order. Please
confirm that we may annex to your client’s part of the contract on her behalf a
copy of the agreed form of conveyance, being the draft dated February 22 1982.
That is
acknowledged by a letter dated May 27 confirming that the agreed form of
conveyance can be annexed to the contract.
The notice
which had been served required that the tenant should notify the landlords, in
writing, whether or not she would be willing to give up possession of the
property on October 1. The correspondence which I have read went on, as I have indicated,
between the time when that notice was sent and the period of two months after
that notice had been given — that was the end of May. The landlords’ solicitors
then write on June 10 asking for the latest position concerning the financial
arrangements. Then, probably on June 23, they apparently telephoned to the
tenant’s solicitors saying they were taking the point that no notice had been
given by the tenant of her unwillingness to give up possession of the property.
The tenant’s solicitors replied, and I will read the second paragraph of the
letter:
We are
extremely surprised to note that you feel we have not notified you whether our
client is willing to give up possession of the premises on October 1 because on
April 26 we wrote to you approving the draft contract and conveyance and on May
18 sent you our client’s signed part of the contract together with cheque for
the deposit, both of which were to be held to our order. In our view, this is
sufficient notice of our client’s intention not to give up possession of the
premises and in fact reaffirms her intention to proceed at the price agreed by
your clients and on the terms agreed by them.
They then say,
in the next paragraph of the letter:
In view of
the fact that your notice terminating our client’s tenancy was merely a
procedural one, and because you have indicated that your clients would not
object to the grant of a new tenancy, and correspondence between us has
confirmed our client’s intention not to give up possession of the premises, it
seems pointless for us to make an unnecessary application to the court for a
new tenancy, and we would respectfully refer you to recent case law which has
indicated that the requirements of section 29(3) imposing time-limits are
merely procedural and capable of being waived by the landlords.
However, the
tenant, Mrs Lewington, did make an application to the court and it was then
that a preliminary point was taken that the tenant has not complied with the
landlords’ notice and, therefore, there was no jurisdiction for the court to
consider the matter. The question which the learned judge had to decide was
whether or not written notice, albeit informal notice, has been given of the
tenant’s intention not to give up possession. It seems to me that even looking
only at the letters after notice was given, namely the letters of April 2,
April 26, May 18 and May 27, those letters make it absolutely clear that the
tenant had no intention of giving up possession of the property. It is true
that the tenant was considering purchase of the property, but it is implicit,
as I see it, that she did not intend to leave the property.
In the course
of argument before us, Watkins LJ posed the question: Can it be fairly said
that after the tenant received notice it was her continuation of negotiations
which was sufficient indication of her intention not to leave? I should have thought the answer to that
question was ‘yes’.
When one takes
into account the correspondence before the actual notice was given, here were
the landlords who had agreed, orally — and I suppose agreed in writing but it
was not a written contract because it was subject to contract — that they would
allow the tenant to purchase this property and the tenant had indicated that
she would purchase the property for the sum mentioned, it was clear at that
stage that she had no intention of giving up possession of the property; and
when, during the period of two months, further letters were written saying that
she had no such intention — albeit she was intending and the landlords’
solicitors were negotiating on the basis that she would be purchasing the
property — it seems to me clear (although it is not a simple notice) that she
was evidencing her intention that she did not intend to give up possession of
the property.
This particular
section, unlike other sections of the Landlord and Tenant Act 1954, does not
require a particular form of notice. Some of the provisions of the Act require
strict compliance with form, but in this particular case the only thing which
is required is that the tenant should, in writing, notify the landlords whether
or not she is willing or unwilling to give up possession.
As I have
already indicated, the letters show that she had no intention whatever of
giving up possession — and although it is not specifically stated in so many
words in answer to the notice which
conclusion to which he came, namely, that the tenant had given notice to the
landlords after receipt of the landlords’ notice that she did not intend to
give up possession.
In those
circumstances, I would dismiss this appeal.
WATKINS LJ
agreed and did not add anything.
The appeal
was dismissed with costs.
