Landlord and tenant — Notice to quit served by agents failing to identify landlord — Whether notice valid
agreement dated January 1985 Thomas Bruce granted the defendants, John and
Gordon Harrison, a yearly tenancy of ‘the farm’, Lakenheath, Suffolk,
determinable ‘at the end of the second or any subsequent year by either party
giving to the other of them not less than 12 calendar months’ notice in
writing’ — Thomas Bruce died on August 22 1986 and his will was proved by the
executors, the plaintiff and Helen Drake; the beneficiary was his widow —
Following the vesting of the farm in the widow, the widow died on September 13
1987 — By her will the widow appointed ‘the Partners at the date of my death in
. . . Cunningham John & Co, Solicitors . . .’ as her executors and trustees
and that ‘two and only two of them shall prove the Will and act initially in
its trusts’ — By a letter (‘the first notice’) dated March 18 1988 and signed
‘Cunningham John & Co’ notice was given ‘on behalf of the residuary
beneficiary’, the plaintiff, to the defendants to quit the farm on October 11
1989 — By a letter (‘the second notice’) dated June 2 1988 a similar notice to
quit was given on behalf of the plaintiff — A further letter (‘the third
notice’) was sent on September 28 1988 referring to the second notice and
requesting the tenants to vacate on October 11 1989 and that no crops were to
be planted that could not be cleared by that date — By an assent dated October
3 1988 the freehold to the farm was vested in the plaintiff — A fourth notice
to quit (‘the fourth notice’), which was accepted as valid, was served on
October 6 1988 and to which the defendants served a counternotice under the
Agricultural Holdings Act 1986 — The appellant tenants appealed from a decision
of Mr John Mowbray QC (sitting as a deputy judge of the Chancery Division) that
the second notice was a valid notice to quit — They contended that the
plaintiff was not the landlord until the date of the fourth notice and that the
earlier notices, given by Cunningham John & Co, failed to specify the
identity of the landlord — The respondent landlord contended that, if the
second notice was invalid, the third notice was valid
at all; it was a letter which referred back to the earlier second notice — The
second notice was invalid because it was served by Cunningham John & Co on
behalf of the plaintiff, who was not at the time the landlord; it was served by
them as speciality agents and failed to identify the correct landlord
notwithstanding that two of the partners were the landlord at the time
The following
cases are referred to in this report.
Frankland v Capstick [1959] 1 All ER 209; [1959] 1 WLR 204, CA
Hankey v Clavering [1942] 2 KB 326; [1942] 2 All ER 311, CA
Harmond
Properties Ltd v Gajdzis [1968] 1 WLR 1858;
[1968] 3 All ER 263, CA
Jones v Phipps (1868) LR 3 QB 567; 9 B&S 761; 37 LJQB 198: 18
LT 813; 33 JP 229; 16 WR 1044
Lemon v Lardeur [1946] KB 613
This was an
appeal from a decision of Mr John Mowbray QC (sitting as a deputy judge of the
Chancery Division) [1991] 1 EGLR 17, who had made a declaration as to the
validity of a notice to quit given by the respondent plaintiff, John Divall, to
the appellant defendants, John and Gordon Harrison.
William
Blackburne QC and John Holt (instructed by Burton Yeates Westburys, for
Rudlings & Wakelam, of Thetford) appeared for the appellants; and Robert
Wakefield (instructed by Metcalfe Copeman & Pettefar, of Thetford)
represented the respondent.
Giving
judgment, PURCHAS LJ said: This is an appeal by John and Gordon Harrison
(to whom I shall refer hereafter as ‘the tenants’) from an order of Mr John
Mowbray QC (sitting as a deputy judge of the Chancery Division) made on
December 17 1990. By the order the learned deputy judge declared that a notice
to quit dated June 2 1988 (to which I shall refer hereafter as ‘the second
notice’) was valid.
The appeal
raises a short but important point. The tenancy in connection with which this
and other purported notices were served concerned some land known as ‘the farm’
in the parish of Lakenheath, Suffolk. The agreement under which the various
notices were purported to be served was made on January 9 1985 between Thomas
Donald Bruce of the one part and the tenants on the other part. The only
relevant provision is clause 1, which provides:
THE tenancy
shall be from the Eleventh day of October One thousand nine hundred and
eighty-four to the Eleventh day of October One thousand nine hundred and
eighty-five and thereafter from year to year until it is determined at the end
of the second or any subsequent year by either party giving to the other of
them not less than twelve calendar months notice in writing.
It is necessary
to touch shortly upon the history of the matter. Mr T D Bruce died on August 22
1986. His will was proved by the executors, John Jack Divall (the plaintiff in
the case) and Helen Drake. The beneficiary was the widow, Gladys Victoria
Bruce. On February 11 1987, by a vesting assent executed in favour of Mrs
Bruce, the farm vested in her. On September 13 1987 Mrs Bruce died. By her last
will and testament of September 24 1986 she appointed:
. . . the
Partners at the date of my death in the firm of Cunningham John & Co
Solicitors of 40 High Street, Lakenheath, Suffolk, or the firm which at that
date has succeeded to and carries on its practice to be the Executors and
Trustees of this my Will . . . and I express the wish that two and only two of
them shall prove my Will and act initially in its trusts.
Subject to
other matters, the will provided that the trustees should:
. . . sell
call in and convert into money such part or parts [of the estate and to hold
the proceeds] with power in their absolute discretion to postpone such sale
calling in and conversion for so long as they shall think fit and out of the
proceeds of such sale calling in and conversion and my ready money to pay my
funeral and testamentary expenses and debts and all duties and taxes payable on
my death and to stand possessed of the clear residue in trust for my son John
Jack Divall . . . for his own use and benefit absolutely.
On March 18
1988 the firm Cunningham John & Co wrote a letter purporting to be a notice
to quit on the firm’s letterheaded paper. It
is to be recorded that, by chance, the identity of the partners did not at any
material time change. Among them were Donal P Sheehan and David W Cunningham,
who, shortly after the writing of this letter, on June 1 obtained probate of
the will. Returning to the letter, however, identifying as the person to whom
contact should be made as ‘Mr Cunningham/Mr Cowlishaw’, the latter being not a
partner but an associate, it reads as follows:
Dear Sirs,
Re: The
Estate of Mr Thomas Donaldson Bruce Deceased Residuary Beneficiary Mr John Jack
Divall: Tenancy Agreement dated 9.1.1985 in respect of 57.89 Acres of Land at
Brakey Hills Farm, Lakenheath, Suffolk.
We now write,
as solicitors dealing with the Estate of Mr T D Bruce Deceased, on behalf of
the residuary Beneficiary thereof, Mr John Jack Divall, your landlord, to give
you notice to quit and to deliver up to him on the 11th day of October 1989,
the possession of the land comprising 57.89 acres or thereabouts situate at
Brakey Hills Farm, Lakenheath, Suffolk, held by you as tenant under the above
tenancy agreement.
Dated 18th
March 1988.
Signed
Cunningham John & Co.
At the bottom
of the document the firm is again mentioned:
Cunningham
John & Co,
of Fairstead
House,
7 Bury Road,
Thetford,
Norfolk IP24
3PL.
I shall refer
to this document as ‘the first notice’.
The two
partners to whom I have already referred obtained probate. It is relevant to
notice only that there is a note ‘Power reserved to the other Executors’. The
rest of the probate follows the normal form and is dated June 1 1988.
On the
following day, June 2 1988, the second notice to quit was sent. Again it is on
the headed stationery of the solicitors, the partners are the same, and it is
indicated that contact should be made with the same Mr Cunningham/Mr Cowlishaw.
It was sent by recorded delivery to:
J Harrison and
G Harrison,
Hall Farm,
Undley,
LAKENHEATH,
Suffolk.
It reads as
follows:
Dear Sirs,
Re: The
Estate of Thomas Donaldson Bruce Deceased and Gladys Victoria Bruce Deceased:
Residuary
Beneficiary: Mr John Jack Divall.
Tenancy
Agreement dated 9.1.1985 in respect of 57.89 Acres of Land at Brakey Hills
Farm, Lakenheath, Suffolk.
We now write,
as solicitors dealing with the Estates of Mr T D Bruce Deceased and Mrs Gladys
Victoria Bruce Deceased, on behalf of the residuary beneficiary thereof, Mr
John Jack Divall, your landlord, to give you notice to quit and to deliver up
to him on the 11th day of October 1989, the possession of the land comprising
57.89 acres or thereabouts situate at Brakey Hills Farm, Lakenheath, Suffolk,
held by you as tenant under the above tenancy agreement.
Dated 2nd June
1988.
Signed
Cunningham, John & Co., Solicitors.
All
correspondence addressed to:
Ref: A J
Cowlishaw
Cunningham,
John & Co.,
of Fairstead
House,
7 Bury Road,
THETFORD,
Norfolk IP24
3PL
On June 7 it
appears that the tenants had consulted solicitors, Rudlings & Wakelam, who
wrote to Cunningham John & Co a letter of that date saying:
We have been
consulted by Mr John Harrison of Hall Farm, Undley, Lakenheath, and shall be
glad if you will let us have a copy of the Notice to Quit served earlier
thisthis year in respect of 57.89 acres at Lakenheath on behalf of the
Executors of the above named and if you can, please, copies of any relevant
correspondence.
We were told
by Mr Blackburne, who appears for the respondents to this appeal, that,
according to his instructions, there is no record of the receipt by Rudlings
& Wakelam of the answer of June 9 to that letter in which Cunningham John
& Co enclosed a copy of the second notice to quit. That, we were told by Mr
Blackburne on instructions, was not received by Rudlings & Wakelam. It was
not until September 29, some three and a half months later, that there appears
to have been a meeting between the representatives of the two firms of
solicitors; it looks as if it took place at the offices of Cunningham John
& Co, because the meeting is confirmed in a letter of September 30 from
Rudlings & Wakelam which says:
. . . The
purported Notice is given on behalf of Mr J J Divall whom you say is the
residuary beneficiary under the Will of Mrs G V Bruce. We confirm our telephone
conversation at 1 pm yesterday when you said that no Assent or other document
vesting the land in J J Divall had been completed. It therefore is the case at
the date of the purported Notice our clients’ Landlords were the Executors of
Mrs G V Bruce deceased namely Mr D W Cunningham and Mr D P Sheehan, and
therefore the Notice is invalid both in general law and under Section 3 and
Part III of the Agricultural Holdings Act 1986.
I should
mention that two days before that letter, on September 28, which may not be
coincidental but appears to be the day before the meeting, Cunningham John
& Co wrote a letter which is alleged to be a notice to quit and to which I
shall refer as ‘the third notice to quit’, reading as follows:
Re: The Estate
of Thomas Donaldson Bruce — deceased and Gladys Victoria Bruce — deceased.
Residuary
Beneeneficiary: Mr John Jack Divall
Further to
our service of the Notice to Quit dated 2nd June, 1988 we now write in order to
ask you to ensure that you vacate the land at Brakey Hills Farm on or before
the 11th October, 1989 and in particular that no crops are planted that will
not be cleared by the date of your vacation of this land on or before the 11th
October, 1989.
That letter was
sent to the tenants at their farm address and it was not sent by recorded
delivery post.
On October 3
the executors of Gladys Victoria Bruce deceased, Mr Cunningham and Mr Sheehan,
executed an assent relating to the 59.236 acres of freehold situated in
Lakenheath in favour of John Jack Divall. It was one of a number of similar
assents, clearly vesting the various properties in the estates in John Jack
Divall, presumably the executors having satisfactorily dealt with the other
obligations from the funds of the estate.
Finally, on
October 6 1988, a further notice to quit was served by Cunningham John & Co
on behalf of Mr John Jack Divall (‘the fourth notice to quit’). This notice it
is accepted was a valid notice.
On November 2
1988 a counternotice under section 26(1) of the Agricultural Holdings Act 1986
was served on behalf of the tenants.
The learned
deputy judge rejected submissions made by Mr Holt, on behalf of the tenants,
that the second notice was invalid because it was purported to be given on
behalf of someone who was not the landlord, that is Mr Divall, by the executors
who had just proved the will and who were themselves the landlords. It was
correctly submitted that Mr Divall had only an equitable interest in the
residue of the estate after the other matters had been dealt with.
I turn to the
passage in the judgment dealing with this matter [at p 18C]:
None the
less, I have concluded that this notice to quit was valid. It seems to me that
it was given by, or at any rate with the authority of, the freeholders, Mr
Cunningham and Mr Sheehan. It was given by their firm and thereby on behalf of
all the partners in the firm, of whom they were two. It must also have been
given with the authority of the freeholders, the two partners, because
Cunningham, John & Co wrote, ‘as solicitors dealing with the estates of Mr
T D Bruce deceased and Mrs Gladys Victoria Bruce deceased’. They were writing
as solicitors dealing with Mrs Bruce’s estate, and thereby with the authority
of her executors, two of their own number.
The letter
continues, ‘. . . on behalf of . . . Mr John Jack Divall, your landlord’. It is
on those words that the real question arises about the validity of this notice.
First of all, those words state that the plaintiff, Mr Divall, is the landlord.
That was erroneous. Mr Divall was not the landlord. He only had an equitable
interest and the two partners were the landlords. Moreover, second, the notice
purported to be given on behalf of Mr Divall with a possible implication that
it was not given by or on behalf of the true landlords, Mr Cunningham and Mr
Sheehan. I do not consider that that invalidates the notice.
The judge then
referred to a number of authorities which have also been placed before us. I do
not propose to deal with them at this stage.
The tenants
now appeal to this court against that judgment and the respondent, John Jack
Divall, by a crossnotice first asserts that the first notice to quit was a
valid notice to quit, alternatively that the third notice to quit was a valid
notice.
Mr Blackburne
makes four propositions in support of the appeal:
1. That the
notice to quit to the tenant may be given by the landlord or an agent duly
authorised for that purpose.
2. That, if
given by the landlord, the notice to quit will necessarily itself identify the
landlord.
3. If given by
an authorised agent, the notice must be given in the name of the landlord, or
must be expressed to be given on behalf of the landlord, whose name must be
given or who must be satisfactorily identified.
4. The only
exception, if it be an exception, to 3 is in the case of a general agent
authorised to act in the management of the property in all respects as was the
case of the man Harvey in Harmond Properties Ltd v Gajdzis [1968]
1 WLR 1858, to which I shall subsequently return, and Sir Maxwell Graves in Jones
v Phipps (1868) LR 3 QB 567.
In the latter
case Sir Maxwell Graves had been acting as the general agent for the trustees
in whom the legal estate was vested, and I propose just to refer to one passage
from the judgment by Lush J in which he said at p 571:
The decision
in this case must depend on the answers to be given to two questions, one of
fact, the other of law. The question of fact is, whether Sir Maxwell Graves had
authority from the trustees, in whom the legal estate was vested to give notice
to quit, to determine, the defendant’s tenancy. The question of law is whether,
assuming that he had such authority, a notice to quit given in his own name,
not purporting to be given as agent of the trustees, is valid.
On the first
point, we are of the opinion that the facts stated lead to the conclusion that
Sir Maxwell Graves had the authority of the trustees to give a notice to quit.
He had assumed the entire control over the farm from the time it was purchased
in 1863, and had for a period of twenty-six years been allowed by the trustees
to have the entire management of all the other settled estates.
We therefore
infer that it was with the sanction of the trustees that he (who had himself
furnished that portion of the purchase-money of the farm) dealt with it as his
own, and negotiated with the defendant as to the terms and continuance of the
holding. It was incidental to such authority that he should determine the
tenancy by notice to quit at such time as he should think proper. As regards
the defendant, he could have been under no doubt whether the notice was
binding, inasmuch as he was not aware that the estate was vested in trustees,
but always treated with and considered Sir Maxwell as the legal, as he was in
fact the equitable, owner of the farm.
I have
ventured to read that passage because it lies at the heart of the main issue in
this appeal. This is the position of the general agent as described in Mr
Blackburne’s fourth proposition in which a notice to quit can be served by
someone other than the landlord which does not itself identify the landlord.
Mr Blackburne
referred us to the proposition as generally stated in Woodfall.
Particularly in this case or in cases involving business tenancies, there are
rights to be obtained by the tenant by serving a counternotice within the
provisions of the appropriate statute which make it important that the tenant
can identify the landlord and rely upon that identification which is to be
derived from the notice to quit. The paragraph from Woodfall (28th ed)
to which we were referred is to be found at 1-1995 under the rubric ‘Service of
Notice, by whom’:
A notice to
quit may be given either by the landlord or by the tenant, or by the authorised
agent of either party. The agent, who, if acting generally, may give the notice
in his own name, but not if he is acting specially, ought to have sufficient
authority when the notice is given, or, at the latest, when it begins to
operate; a subsequent recognition is not sufficient.
Some examples
of the effect of that are then given.
Although
judicial authority can be found for saying that the courts will not strike down
a notice to quit because of mere technical errors, nevertheless the notice to
quit is a document which affects interests in land and must conform to clear
legal requirements. Confirmation for that is to be found in the judgment of
Lord Greene in Hankey v Clavering [1942] 2 KB 326 at p 329:
That takes me
back to the real point, namely, whether or not the notice was good, in the sense
that it had the effect of terminating the lease on December 25, 1941. Notices
of this kind are documents of a technical nature, technical because they are
not consensual documents, but, if they are in proper form, they have of their
own force without any assent by the recipient the effect of bringing the demise
to an end. They must on their face and on a fair and reasonable construction do
what the lease provides that they are to do. It is perfectly true that in
construing such a document, as in construing all documents, the court in a case
of ambiguity will lean in favour of reading the document in such a way as to
give it validity. But I dissent entirely from the proposition that, where a
document is clear and specific, but inaccurate on some matter such as that of
date, it is possible to ignore the inaccuracy and substitute the correct day or
other particular because it appears that the error was inserted by a slip.
Mr Blackburne
submitted that the second notice clearly failed on a number of points.
1. That the
firm of solicitors who served the notice were not, nor could they be, general
agents within the concept of that status in the two cases to which I have
referred.
2. That the
letter on its true reading was not expressed to be served by the true landlords
who at the time it was served were the two partners (Mr Cunningham and Mr
Sheehan) who had proved the will of Mrs Bruce deceased.
3. It
positively misidentified the landlord as John Jack Divall.
Therefore, Mr
Blackburne submitted that the learned judge was wrong to hold that that notice
was valid and that it should have been declared invalid.
Mr Wakefield,
for the respondent, submitted that although the second notice admittedly
contained errors these should be ignored as falsa demonstratio. He
referred to the approach of Sellers LJ and Roxburgh J in Frankland v Capstick
[1959] 1 WLR 204, at p 207, where Sellers LJ said:
The authority
relied on by Mr Morris Jones on the other side was a passage from the judgment
of Lord Greene MR in Hankey v Clavering, which was a case of a
notice to quit. As Lord Evershed MR pointed out in the course of the argument,
the requirement of certainty of a notice to quit has always had judicial
support. The passages relied on in Lord Greene’s judgment are, first (referring
to the notice, which had given a wrong date), ‘The whole thing is quite
obviously a slip on his part and there is a natural temptation to put a
strained construction upon language in aid of people who have been unfortunate
enough to make slips. That is a temptation which must be resisted because
documents are not to be strained and principles of construction are not to be
outraged in order to do what may appear to be a particular fairness in an
individual case’. But a further passage was quoted to this effect: ‘It is
perfectly true that in construing such a document, as in construing any other
document, the court in case of ambiguity will lean in favour of reading the
document in such a way as to give it validity as a document; but I dissent
entirely from the proposition that, where a document is clear and specific on a
particular matter, such as that of date, it is possible to ignore the
inaccurate reference to a date and substitute a different date because it
appears that the date was put in by a slip.’
This
particular document is, I think, in the category of being one which is
ambiguous. It clearly states that the notice is given on behalf of the
landlord, and given by his solicitors; but it mis-states the name of the
landlord. . . . It is not submitted that it is to be read so strictly that the
claimant himself, either the landlord or tenant, has personally to give the
notice.
— That is a
reference to section 70(2) —
It has been
conceded–and I think rightly conceded because it clearly is so — that the
notice can be given by an agent acting on behalf of either party respectively,
and therefore there is already in that respect a departure from the strict
wording of the section. The question, as it appears to me, that has to be
decided is whether, in approaching the question on the principles which I have
read, this is an ambiguity which can be complained of by the tenant,
constituting, as it is alleged, an invalid notice.
Sellers LJ
disagreed with the judge’s conclusion about that and continued at p 208:
He has, in
the passage I have read, which I think is the substance of his judgment,
treated this as if the notice itself read ‘As solicitors for Raven Frankland,’
of a certain address, ‘your landlord.’ I
am not sure that that would have made any difference in my view as to the
interpretation, but it would have been a little stronger in favour of the
allegation of invalidity. But this case, I think, leaves it clear that the
notice is one given on behalf of the landlord, and there is no indication in
the case — in fact I do not think the arbitrator was asked to make any finding
of fact about it — that the widow was in any way deceived by this, or was under
any misapprehension as to who the landlord was.
Roxburgh J,
again referring to the description of the landlord which was erroneous, said at
p 209:
With those
two pointers, I look at the notice, and I see that it says ‘As solicitors for
your landlord Raven Frankland.’ It is to
be remembered that, as the special case states, the widow had approached the
landlord with a request to surrender the tenancy, an agreement for which was
drawn up and signed by both parties, the landlord signing himself as ‘Edward P
Frankland’. Therefore, it is obvious on the face of it, and must have been
obvious to the widow if she ever took any trouble to look at this point at all,
that there was something wrong about the notice. In my view, having regard to
the fact that she knew quite well from that document that her landlord was
Edward P Frankland, it is fair and reasonable to solve the ambiguity which
arises by saying that the falsa demonstratio is in the words ‘Raven
Frankland’ and not in the phrase ‘As solicitors for your landlord’.
Mr Wakefield
further submitted that the tenants knew that John Jack Divall was not their
landlord. He referred us to the affidavit of John Harrison sworn on September
29 1989 in which he said:
3. The rent
under the Lease has been paid up to date. It is payable in half-yearly
instalments on 6th April and 11th October. The rent for April 6th 1988 was paid
to the executors on the 11th day of April 1988. The cheque was made payable to
T D Bruce upon the express instructions of Messrs Cunningham John and Co. A
copy of the receipt is now produced . . .
4. No valid
Notice to Quit was served upon my brother and I until 6th October 1988. As we
wish to remain tenants, we served a proper Counter Notice dated 2nd November
1988. The documents dated 18th March 1988 and 2nd June 1988 were not served by
our landlord. We had no reason to, nor did we, believe that Mr Divall was our
landlord. The letter dated 28th September 1988 does not pretend to be a Notice
to Quit.
Mr Wakefield
relies on those passages to bring this case within the expressions in the
judgment, to which I have already referred, which emphasised the fact that the
tenant upon whom the otherwise defective notice was served was in no way misled
or prejudiced by the errors in the notice.
In this case
Mr Wakefield submitted in the first instance that the form of the second notice
could be considered as ambiguous and that therefore the court should lean in
favour of achieving validity. I hope I do not do an injustice to an ingenious
and skilfully presented argument on this front. The first proposition was that
this letter was sent by the solicitors for ‘the landlords’, that is the two
executors of the estate of Mrs Bruce, deceased, who happened also to be
partners in the firm of solicitors instructed to act for them. Therefore the
question of agency does not really arise, because that letter was in fact a
notice by the landlords, ie the executors, who are indentified because they are
among the names of the partners. The recipient of the notice should not be
deluded by the reference to the estates both of Mr Bruce and Mrs Bruce deceased
or equally deluded by the wrongful reference to the residuary beneficiary as
the landlord. Mr Wakefield seeks to persuade this court to equate the wrong
description of the landlord with the misdescription that was being considered
in the case by Sellers LJ and Roxburgh J in Frankland v Capstick.
He submits that it is quite clear that this notice effectively communicated to
the tenants that notice to quit which would bring to an end the lease was being
given; that that was all that was necessary because the identities of the
landlords were in fact on this document; and that the tenants would not be
prejudiced because, if they served their counternotice on the firm, they served
it as the specially appointed agent for the litigation and it would be received
by the firm on behalf of the true landlords, the two partners, Mr Cunningham
and Mr Sheehan.
It is not
suggested in that part of Mr Wakefield’s submissions that there was any
question of general agency, but he did rely on part of the judgment of Russell
LJ in Harmond Properties Ltd v Gajdzis. In that case Daultry
& Co, solicitors, served a notice to quit ‘on behalf of your landlord Mr R
P Harvey. We hereby give you notice to quit’. At p 1864 Russell LJ said:
If there is
any invalidity in the notice arising, therefore, from the presence of the two
words ‘your landlord Mr R P Harvey’, it does not seem to me that such a
point can invalidate the notice as a notice to quit. As I have indicated, it in
fact accorded entirely with the defendant’s understanding of the situation; he
had always dealt with Mr Harvey as if he were the landlord and he has told us
that he had always thought that Mr Harvey was the landlord. If Mr Harvey had
the general ability to give notice as if he was the landlord, without naming
the landlord, it does not appear to me that we should hold in the present case
that the fact he is described expressly in the notice as ‘landlord’ should
invalidate the notice to quit. As I have said, if the notice had been actually
simply: ‘I give you notice to quit’, signed ‘R P Harvey’, one would tend to
think that this was the landlord giving the notice, but in fact, of course, it
may well be in any case that it is not the landlord but the general agent of
the landlord who is giving notice. I think that it would be wrong to introduce,
in a case such as this, so technical an approach to the notice to quit in the
present form, which is in no way misleading; and (which is the crucial point in
the case) I have no doubt at all that the moment it was given, it bound the
true landlords, Harmond Properties Ltd.
Mr Wakefield
submits that that is equivalent to the position in this case. On this part of
his argument, however, it is not a case of a general agency. His first
submission was that it is a true notice given by solicitors instructed by two
of their partners who are the executors. To suggest that the tenants could
reasonably be expected to unravel the complicated relationship involved in that
tortuous submission to my mind flies in the face of the requirement, already
outlined and well established in authority, that the terms of a notice of this
kind must be clear and, in the proposition Mr Blackburne has put before us,
must identify, in cases other than of general agency, the landlord.
Undeterred by
that total inconsistency, Mr Wakefield then submitted an alternative
proposition that Cunningham, John & Co were general agents for the
administration of the estate of Gladys Victoria Bruce; that one has got to
forget the misleading reference to the earlier estate; that one again has to
ignore the erroneous description of John Jack Divall but nevertheless, as
general agents for the executors of the estate, they were in a position to
serve a valid notice to quit without identifying the landlord.
With respect
to Mr Wakefield, I find that proposition so difficult to accept that it does
not command consideration in this judgment. I wish no discourtesy to Mr
Wakefield, but a suggestion that the solicitors were acting as general agents,
with all the powers with which general agents are endowed, merely flies in the
face of the practical situation which existed on the ground. That was the
second of the two main limbs of Mr Wakefield’s argument.
I now turn to
the cross-appeal. Mr Wakefield has not pursued the first of the two grounds in
trying to support the first notice to quit. He frankly, and rightly in my
judgment, concedes that if he fails to establish the validity of the second
notice to quit, then the first notice to quit must fall. But he has argued with
some fortitude to support the letter of September 28 as being itself a notice
to quit. He submits that, although it refers to the estates of Mr Bruce
deceased, Mrs Bruce deceased, the residuary beneficiary Mr John Jack Divall and
also to the notice to quit served on June 2, nevertheless those matters should
be ignored and that the tenant receiving this letter should receive it as a
valid notice to quit because of the following words:
. . . we now
write in order to ask you to ensure that you vacate the land at Brakey Hills
Farm on or before the 11th October, 1989 . . .
And it goes
on, as I have already said, to deal with the question of crops and so on. That,
Mr Wakefield submits, is a clear notice that the landlord, still in my judgment
not identified in this letter, requires possession of the land. I cannot accept
that submission. This letter on its face is exactly what it purports to be; it
related back to the notice to quit of June 2 and it must clearly depend upon
that. To expect a reasonable tenant to look at this letter and dissociate if
from the second notice to quit of June 2 is fanciful and, in my judgment, no
argument can be sustained that this was in some way a notice to quit. As to
practical matters, it is interesting to notice that the second and fourth
notices to quit, one served before this letter and one served subsequently,
were both sent by recorded delivery whereas this one was not. On the facts
established in relation to that letter I am quite unable to agree that it could
by any stretch of the imagination constitute a valid notice to quit.
I now return
for a moment to the second notice to quit of June 2 to deal with the submission
to which I have already adverted, upon which Mr Wakefield relies, that the
courts will lean, in cases of ambiguity, towards a construction which would
support the validity of the document. The first requirement is that the
document should be ambiguous. I find it difficult to detect any ambiguity in
this letter of June 2. It is written by solicitors who announced that they were
dealing with two estates of the two deceased, who were husband and wife. They
write to the recipients of the letter, the tenants, on behalf of the residuary
beneficiary thereof, Mr John Jack Divall, and wrongly identify him as ‘your
landlord’. The exercise on which Mr Wakefield invited the court to embark was
to carry out forensic reconstruction or surgery on this document which is
wholly outside reality. It is not merely identifying a falsa demonstratio.
It is a totally misleading document. I have little doubt, with respect to the
writers of it, that they themselves were for the moment misinformed,
ill-advised and had not appreciated the true significance of the role a
landlord has to play in the service of a notice to quit of this kind. It would
be totally outside the role of this court to reconstitute a wholly defective
document of this kind. It is not ambiguous; it is plainly wrong in the material
respects that Mr Blackburne put before the court and to which I have already
referred.
For those
reasons, I would allow this appeal and declare the notice to quit invalid.
BUTLER-SLOSS
LJ agreed and did not add anything.
Also agreeing,
SCOTT LJ said: The only real issue in this case, in my opinion, is as to
the validity of the notice to quit given by the letter of June 2 1988. In so
saying, I am not overlooking the contents of the respondent’s notice. At the
date of the June 2 1988 letter the legal estate in the farm, the subject of the
notice to quit was vested in the two proving executors of Mrs Bruce, that is to
say Mr Cunningham and Mr Sheehan; probate had been granted to them on June 1
1988, the day before the letter was sent. There is, in my opinion, no reason to
think that the tenants knew the position as to the whereabouts of the legal
estate. They had, of course, known who their original landlord was, namely Mr
Bruce, when the tenancy was first granted.
suppose that they knew, or any reason to suppose that they are likely to have
known, that a vesting assent had been made by Mr Bruce’s executors in favour of
Mrs Bruce. They would have known that Mrs Bruce had died. But there is no
reason to suppose that they knew that, at the date of her death, the legal
estate in the farm of which they were tenants was vested in her. The impact on
them of the phrase in the letter of June 2 1988 ‘. . . as solicitors dealing
with the Estates of Mr T D Bruce Deceased and Mrs Gladys Victoria Bruce
Deceased, . . .’ is, I think, entirely speculative. What would ordinary tenants
make of that, knowing no more than that their original landlord, Mr Bruce, had
died? The letter of June 2 constituted,
according to its ordinary, natural meaning, that notice to quit was being given
to the tenants on behalf of Mr John Jack Divall. That is what the letter said.
The letter represented also that Mr John Jack Divall was their landlord. They
had no reason to believe, as they said in para 4 of the affidavit to which
Purchas LJ has referred, that that was necessarily so. Of course, it might have
been so. They could not have known what assents had been made or who was
entitled to have assents made in his or her favour. The letter of June 2 1988
purported, as I have said, to give notice to quit on behalf of Mr John Jack
Divall as landlord. It is known that he was not the landlord. He may very well
have had some authority from the true owners to act in connection with the
estate. But it has not been suggested that he was a general agent. He had, at
most, no more than a special authority.
In Lemon
v Lardeur [1946] KB 613 Morton LJ said, at p 617, in connection with a
notice to quit given by the husband of the landlord wife:
. . . The
notice purports to be given by Mr Lemon himself. There is no evidence that he
had a general authority on behalf of his wife and I think that the notice was
invalid on that ground also. I think the law is correctly stated in Woodfall
on Landlord and Tenant (24th ed p 964), where the learned author says: ‘But
when a notice to quit is given by the particular agent, having a limited
authority only, such notice should be given in the name of the principal, or
expressly on his behalf.’
The notice
comprised in the letter of June 2 1988 was not given on behalf of the landlord.
It was given on behalf of a person with, at most, a limited authority but it was
not expressed to be given in the name of the principal or to be given expressly
on behalf of the principal. Lemon v Lardeur, in my judgment,
requires this notice to be treated as invalid. I agree with the reasons given
by Purchas LJ for that conclusion and that the appeal should be allowed.
Appeal
allowed, declaration as sought, with costs of appeal and below; leave to appeal
refused.
