Agricultural holding — Notice to quit — Validity of notice — Complications in regard to landlord’s title — Notice given by solicitors two of whom were executors holding the legal title to the reversion — Notice was, however, expressed to be given on behalf of the plaintiff, who was entitled in equity to the land as residuary beneficiary subject to the completion of the administration of the estate — Whether the notice was valid, particularly as it described the plaintiff as ‘your landlord’ — Notice held to be valid in spite of criticisms of its form — Tenants not likely to have been misled
in regard to the notice to quit in this case arose from the devolution of the
title to the legal estate in the reversion — The testatrix, having appointed
the partners in a firm of solicitors as her executors, left the whole of her
estate, subject to the payment of debts and testamentary expenses etc, to the
present plaintiff — Two of the partners proved the will, power being reserved
to the other partners in the firm — The notice to quit which was at the centre
of the litigation was served the day after the probate was granted but some
months before an assent was executed in favour of the plaintiff as devisee in
respect of the land
the critical notice to quit was given was that the legal estate in the land in
question was vested in the two partners who had obtained probate, while the
plaintiff was entitled to the land in equity subject to the administration of
the testatrix’s estate — The notice to quit was on the solicitors’ writing
paper and was headed with the firm’s name and address and the list of six
partners (including the two executors) and associates — The notice went on to
state that it was written by the firm as solicitors dealing with the estate of
the testatrix ‘on behalf of the residuary beneficiary thereof, Mr John Jack
Divall’ — Was a notice in this form invalid?
The question had an importance from the agricultural holdings aspect
because the tenancy was a protected agricultural tenancy subject to the
Agricultural Holdings Act 1986 and no counternotice invoking section 26(1) of
the Act had been served by the tenants in response to the notice to quit — In
fact a later notice to quit was served without prejudice to the validity of the
earlier notice and a counternotice had been served in response to that later
notice; but no issue arises on this point
of the first notice was challenged on the ground that it was given on behalf of
someone who was not the landlord — In law the landlords were the two partners
who had obtained probate, but the objection was that they had given the notice
expressly on behalf of the plaintiff, who was entitled only to the land in
equity and indeed only so entitled subject to the clearing of the testatrix’s
estate — It was accepted that at common law an equitable owner was not entitled
to give a notice to quit determinative of a legal tenancy
nevertheless concluded that the notice to quit was valid — It was given by the solicitors
dealing with the deceased’s estate and with the authority of the two partners
who were the executors and who held the legal title to the reversion — It was a
notice which the tenants could act upon with safety and by which they were
unlikely to have been seriously misled, although the plaintiff had been
erroneously described as the landlord — The case of Lemon v Lardeur, cited
on behalf of the tenants, was distinguishable — Notice to quit declared to be
valid
The following
cases are referred to in this report.
Harmond
Properties Ltd v Gajdzis [1968] 1 WLR 1858;
[1968] 3 All ER 263, CA
Jones v Phipps (1868) LR 3 QB 567
Lemon v Lardeur [1946] KB 613
This was an
originating summons to determine the validity of a notice to quit. The notice
to quit was in respect of the tenancy of 57.89 acres of land at Brakey Hills
Farm, Lakenheath, Suffolk, the land being an agricultural holding subject to
the Agricultural Holdings Act 1986. The plaintiff was John Divall, who was the
residuary beneficiary under the will of Mrs Gladys Victoria Bruce, and the
defendants were the tenants, John and Gordon Harrison.
Robert
Wakefield (instructed by Metcalfe Copeman & Pettefor of Thetford) appeared
on behalf of the plaintiff; John Holt (instructed by Rudlings & Wakelam of
Bury St Edmunds) represented the defendants.
Giving
judgment, MR JOHN MOWBRAY QC said: Before me is an originating summons
asking whether a notice to quit was valid. One of the documents relied on by
the landlord as a valid notice to quit is dated June 2 1988. To see how the
question about its validity arises, I must give an account of the position as
regards the landlord’s interest.
I can start
with the relevant tenancy agreement. It was dated January 9 1985 and it was a
tenancy agreement granting a tenancy over 57.89 acres of land at Brakey Hills
Farm, Lakenheath, Suffolk. The landlord who granted the agreement was Thomas
Donaldson Bruce. The tenants under the agreement were John Harrison and Gordon
Harrison. The first clause of the tenancy agreement reads:
1. 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.
Mr Bruce died
on August 22 1986. By his will he had appointed his daughter, Mrs Helen Drake,
and his stepson, the plaintiff, Mr Divall, to be his executors. They proved his
will on November 5 1986. It contained a specific bequest of the land in
question to his wife, Gladys Victoria Bruce. The executors executed an assent
in her favour absolutely on February 10 1987. Mrs Bruce died on September 13
1987, having by her will appointed to be her executors the partners in a firm
of solicitors, Cunningham John & Co. Two of the partners in that firm, Mr
Cunningham and Mr Sheehan, proved that will on June 1 1988, power being
reserved to the other partners in the firm. Mr Divall took the whole estate
under a general devise and bequest, subject only to the payment of debts and
the general clearing of the estate. It will be recalled that the notice to quit
that I am considering was given on June 2, the day after probate. It was given,
of course, before any assent was executed in favour of Mr Divall. That came on
October 3 1988. It was only then, as far as the evidence before me is
concerned, that the estate was cleared.
The position
when the notice to quit was given on June 2 1988 was this: that the legal
estate in the land in question was vested in the two partners as executors of
Mrs Bruce and Mr Divall was entitled to the land in equity as residuary
legatee, subject only to the clearing of the estate.
The notice to
quit whose validity I am considering is on the firm’s headed writing paper. It
is headed ‘Cunningham John & Co, Solicitors’. It is addressed to the
tenants. The firm’s address is given, and then a list of partners, including Mr
Cunningham and Mr Sheehan, four other partners and six associates. The letter
reads:
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.
Then at the
bottom it reads:
All
correspondence to be addressed to Ref: A. J. Cowlishaw, Cunningham John &
Company . . .
And their
address is given again.
Whether that
notice is valid is important to the parties because the tenancy was an
agricultural tenancy and no counternotice was given under the Agricultural
Holdings Act 1986 by reference to that notice. A later notice to quit was given
without prejudice to the validity of the notice I have just read and a
counternotice was served in regard to that later notice. It will be seen,
therefore, that whether the machinery under the Act came into operation depends
on whether this notice of June 2 1988 was valid.
The main
criticisms of the notice to quit of June 2 1988, which have been directed at it
in a very interesting and, if I may say so, able argument, which took every
point that could have been taken, were these. The notice was not given, it is
said, by the landlords but was given on behalf of someone who was not the
landlord. The landlords were the two partners, Mr Cunningham and Mr Sheehan. In
this notice to quit they said that they were giving the notice on behalf of Mr
Divall. He was not the landlord. He was entitled only in equity and he was not,
so far as the evidence before me goes, absolutely entitled in equity but only
subject to the clearing of the estate. It was argued for the tenants that a
mere equitable owner is not able to give a notice to quit under a common law
tenancy. That is accepted on the other side and, in my judgment, is correct,
notwithstanding an old dictum to the contrary.
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 had only 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. In Jones v Phipps
(1868) LR 3 QB 567, at p 573 Lush J, giving the judgment of the Divisional
Court of Queen’s Bench, said:
It is clear
that the notice must be such as the tenant may act upon with safety, that is,
one which is in fact, and which the tenant has reason to believe to be, binding
on the landlord.
In a very
similar passage, Russell LJ described that as ‘the crucial matter’ in Harmond
Properties Ltd v Gajdzis [1968] 1 WLR 1858 at p 1864. Russell LJ
disapproved too technical an approach to a notice to quit and said that the
crucial point in that case was that, at the moment it was given, it bound the
true landlords.
It is clear
that the notice of June 2 1988 bound the true landlords, the two partners in
the firm, because it was given by the firm as solicitors dealing with Mrs
Bruce’s estate. I think it could possibly have misled the tenants into thinking
that Mr Divall was properly to be described as their landlord, but as it
described him as the ‘residuary beneficiary’ of Mrs Bruce’s estate, I do not
think there was a possibility of the tenants being seriously misled about his
true position.
There is a
principle under which someone who is not the true landlord can give notice to
quit in his own name without revealing the true position, if the person giving
notice is the general agent of the landlord. It was persuasively argued for the
tenants that that principle could not apply in the present case because there
is no evidence at all that Mr Divall was any kind of agent for the two partners
who held the legal estate. That is perfectly correct, but the landlord has not
based any argument on any general agency and, for the reasons I have already given,
the landlord is able to get home by a different route.
For the
tenants the case of Lemon v Lardeur [1946] KB 613 was cited. That
case certainly bears out the submission I have mentioned, that it is only a
general agent who can rely on the principle I have mentioned. That was a case
where a husband gave the notice, whereas his wife was the landlord. That notice
was held by the Court of Appeal to be invalid because it was not given by the
landlord and because there was insufficient evidence that the husband was the
general agent of his wife, the landlord. It seems to me that if in Lemon
v Lardeur the notice had been countersigned by the wife there could have
been no doubt about its validity. In the present case we have the equivalent,
because the landlords joined in the notice in the ways that I have described. I
conclude that the authority of Lemon v Lardeur does not assist
the tenants in the present case.
I will,
therefore, make a declaration that the notice to quit which I have described
was valid and I will ask counsel about the form of order.
