Agricultural holdings — Death of sole surviving tenant — Case G in Schedule 3 to Agricultural Holdings Act 1986 — Whether notice to quit relying on Case G was valid and effective — No claimant under succession scheme — Whether notice to quit given not later than the end of the period of three months beginning with date of any relevant notice — Meaning of ‘relevant notice’ — Position as to notice to quit if no relevant notice given — Whether ‘a simple case of Case G applying’ — Ruling on novel point
complications arose following the death of the surviving tenant, aged 100 or
101 years, who had outlived his two sons, the tenancy (which began in 1958)
having originally been vested in the three of them — The landlords, whose
notice to quit precipitated the present litigation, were a pension fund — The
tenant died on September 27 1986 and the tenancy vested in the President of the
Family Division until eventually the three defendants, grandchildren of the
tenant, obtained a grant of administration with the will annexed — The notice
to quit was served, in February 1987, on the President — No ‘relevant notice’
within the meaning of Case G and para 12 in Schedule 3 to the 1986 Act had been
served before the notice to quit and none could have been served in the absence
at that time of an executor or administrator — The three-month period mentioned
in Case G did not therefore begin to come into operation — In such
circumstances, the judge held, the machinery of a ‘relevant notice’ not being capable
of operating, the notice to quit took effect under Case G — It was ‘a simple
case of Case G applying’ and the notice to quit was effective
result would, in the judge’s opinion, be reached if the claim that a relevant
notice was in fact given was examined — The suggestion that an obituary notice
inserted in the local paper by the undertakers, or a small news item that the
deceased was probably the oldest farmer in the country, might constitute a
relevant notice did not merit much discussion — A letter to the landlords’
managing agents from a firm of solicitors stating that they did not act in
connection with the estate of the late tenant, and giving the name of the
solicitors who did act, was not sufficient — A relevant notice under para 12 in
Schedule 3 must be by or on behalf of an executor or administrator of the
tenant’s estate and must be in terms which are sufficiently clear to bring home
to the ordinary landlord that it is purporting to exercise the procedure under
the Act — The documents relied on did not meet that test
whatever way the matter was looked at, the landlords’ notice to quit was valid
and effective — Declarations in favour of the plaintiff landlords accordingly
The following
case is referred to in this report.
Norwich
Union Life Insurance Society v Sketchley plc
[1986] 2 EGLR 126; (1986) 280 EG 773
The plaintiff
landlords, BSC Pension Fund Trustees Ltd, sought declarations to the effect
that the agricultural tenancy of the late George William March senior, which
had vested in the three defendants, Beryl Wetherall, Brenda Downing and Trevor
March, as administrators with the will annexed, had been duly determined.
Paul Morgan
(instructed by Macfarlanes) appeared on behalf of the plaintiffs; Guy
Fetherstonhaugh (instructed by Burges Salmon, of Bristol) represented the
defendants.
Giving
judgment, Mr ANDREW BLACKETT-ORD said: The plaintiff company is landlord
of 180 acres in Northamptonshire, I suspect near Corby steelworks, let on a
yearly agricultural tenancy from Lady Day 1958 to three tenants, all of whom
are now dead, Mr George William March senior, and his sons, Albert Arnold and
George William junior.
I think I need
not read the tenancy agreement, which is an ordinary agricultural tenancy
agreement, and I need not go into the changes in the person and name of the
landlord over the years which have reflected the nationalisation and
unnationalisation, however many times it has happened, of the steel industry.
The occupation of the tenants was, of course, protected by the Agricultural
Holdings Act 1948 and subsequent Acts.
The two sons
died before their father, and of late years, the farm — the land I mean,
because it is not a farm, it is only land (as I understand it) without
buildings — the land had been managed by the third defendant, Mr Trevor March,
who is the son of Albert, as part of a family enterprise involving dairying and
a milk round which his cousins, the first and second defendants, seem also to
be concerned in. The land comprises more than half their total holding and is
vital to the business. The landlords are a pension fund with their own
obligations, and they have served notice to quit — several notices to quit —
and the question for the court is whether all or any of them are or is
effective.
Mr G W March
senior died on September 27 1986 aged either 100 or 101, I am not quite sure
which, quite soon after the commencement of the Agricultural Holdings Act 1986,
which was a consolidating measure and which contains the relevant statute law.
Section 26 contains the restriction on the operation of notices to quit.
(1) Where —
(a) notice to quit an agricultural holding or
part of an agricultural holding is given to the tenant, and
(b) not later than one month from the giving of
the notice to quit the tenant serves on the landlord a counternotice in writing
requiring that this subsection shall apply in the notice to quit,
then, subject
to subsection (2) below the notice to quit shall not have effect unless, on an
application by the landlord, the Tribunal consent to its operation.
(2) Subsection (1) above shall not apply in any
of the Cases set out in Part I of Schedule 3 to this Act.
— and that
refers to ‘Case A’, ‘Case B’ and so on —
(3) Part II of that Schedule shall have effect in
relation to the Cases there specified.
And, in the
present event, one turns to Case G in Part I of Schedule 3 where this is
stated:
The notice to
quit is given —
(a) following the death of a person who immediately
before his death was the sole (or sole surviving) tenant under the contract of
tenancy,
And I pause to
say that that was clearly satisfied on the death of Mr March senior. And then
the paragraph goes on:
and
(b) not later than the end of the period of three
months beginning with the date of any relevant notice,
and it is
stated in the notice to quit that it is given by reason of that person’s death.
Now the
various notices to quit do state that they are given by reason of the death of
the late Mr March, and the question is whether the notice to quit was given in
time. The defendants say that they were given after the end of three months
from the relevant notice. The explanation of the expression ‘relevant notice’
is contained in para 12 in Part II of the Schedule, and I read:
For the
purposes of Case G —
(a) ‘tenant’ does not include an executor,
administrator, trustee in bankruptcy, or other person deriving title from a
tenant by operation of law, and
(b) the reference to the date of any relevant
notice shall be construed as a reference —
(i) to the date on which a notice in writing was
served on the landlord by or on behalf of an executor or administrator of the
tenant’s estate informing the landlord of the tenant’s death
and I need not
read any further because it then goes on to mention an alternative which is
concerned with the provisions in the Act for statutory succession to
agricultural tenancies which would not apply in this case because Mr Trevor
March, as the person who might have claimed, is not an ‘eligible person’ under
the provisions of the Act.
If his father
had survived his grandfather the position might have been very different, and
he might then have been able to put in a claim, and possibly establish what is
called statutory succession, so that the land would have remained in the family
for another generation. But that does not apply, and of course those provisions
for the future have since been repealed. An agricultural tenant has a tenancy,
in effect, for life, but when he dies the landlord has the opportunity of
serving a notice to quit and recovering possession under the provisions which I
have read.
Under old Mr
March’s will, which he made in 1967, his two sons were appointed executors, and
he left his residue to his wife for life, with the remainder to his two sons
equally with a substitutional gift in the case of a son pre-deceasing him. The
result of which would seem to me to be that Trevor is now entitled to half the
estate, and the first and second defendants, who are the children of the other
brother, to the remainder. But the executors were the sons, and they
pre-deceased. And so when Mr March died there was no executor, and it was
necessary to obtain from the court a grant of administration with the will
annexed, which grant was made to the three defendants on October 5 1987. Until
then the estate, that is to say the property of Mr March, was vested in the
President of the Family Division. But, in my judgment, he did not take, either
as an executor or as an administrator. He takes under something rather like a
legal fiction, to prevent there being a gap after the death and before
representation is obtained.
But the
property, including this land, vested in him and he was the proper person on
whom a notice to quit, if one was to be given, had to be served, and this was
duly done in February 1987. The first notice to quit was turned down by the
Treasury Solicitor for some technicality, but it was followed by another one
which met the Treasury Solicitor’s requirements, and I think nothing turns on
that. But then no ‘relevant notice’ such as is referred to in the statute had
or could have been served because there was no executor or administrator. And
so there was no question of three months running or expiring. It was, in my judgment,
a simple case of Case G applying, and on that ground I hold that the notices to
quit served on the President are good.
If I am wrong,
then the earliest notice to quit was served, that is, reached its destination,
on February 2 1987, and going back three months from there, the ‘relevant
notice’ would have to have been before November 2 1986.
The defendants
say that such a notice was given and they rely on two different documents. The
first of these are the entries in the local paper at the time of Mr March’s
death on September 27 1986. On the instructions of his family the undertakers
put in the usual entry in the ‘deaths’ column. And a day or two later there was
a small news item, such as one finds in local papers, saying that he was
probably the oldest farmer in the county, and that sort of thing. Those
newspaper entries are said to amount to a ‘notice’. Alternatively, reliance is
placed on a letter written by a firm of solicitors called Lamb & Holmes to
the local office of Strutt & Parker, who were the landlord’s managing
agents. It is dated October 24 1986, and is in answer to a letter of October 21
from Strutt & Parker in which they say that they act as managing agents,
and that they had heard that the last surviving tenant had passed away, and
raised a question about a rent cheque which had been drawn on something called
‘G W March and Sons new account’, which they declined to accept. And they say:
‘We understand that your firm has been instructed to take out the appropriate
letters of administration to sort out Mr March’s affairs’.
It is in
answer to that that Lamb & Holmes wrote their letter of October 24 1986:
Dear Sirs,
G W March
senior — deceased and BSC Pension Fund Trustees Limited.
We thank you
for your letter of the 21st instant. We would inform you that Messrs Wilson and
Wilson of PO Box 8, Meadow Road, Kettering, Northants
— reference so
and so —
act in
connection with the estate of the late Mr G W March senior. We have therefore
passed your letter to them for reply. We would mention that we act in
connection with the estate of Mr G W March junior. Yours faithfully.
Para 12 speaks
of a notice in writing being served on the landlord by or on behalf of an
executor or administrator. As to what is or is not a notice in writing, I will
adopt a quotation from a judgment of the present Vice-Chancellor which was
itself adopted by Scott J in the case of Norwich Union Life Insurance
Society v Sketchley plc [1986] 2 EGLR 126 at p 128C. I should say
that this was a case of a counternotice under a rent review clause. The learned
Vice-Chancellor and Scott J took this view, reading from the quotation:
In my
judgment, the test is that applied by the Court of Appeal in Amalgamated
Estates Ltd v Joystretch Manufacturing Ltd, namely that the
counternotice should be in terms which are sufficiently clear to bring home to
the ordinary landlord that the tenant is purporting to exercise his right under
para (c), and that is the test which I propose to apply.
I would say that
a notice under para 12 must be in terms which are sufficiently clear to bring
home to the ordinary landlord that the tenant is purporting to exercise his
right under the Act. The documents relied on are in my judgment not enough;
they do not meet that test. For this reason therefore also, I think that the
application must succeed.
The judge
gave a declaration the effect of which was that the tenancy was duly determined
by the plaintiffs’ notice to quit. Plaintiffs were awarded costs at the
standard rate.
