Landlord and Tenant Act 1954, section 29(3) — Time for tenant’s application to the court for a new tenancy — Application to be made ‘not less than two nor more than four months after the giving of the landlord’s notice under section 25 of this Act’ — ‘Corresponding date rule’ — Decision of House of Lords in Dodds v Walker — Application of first limb of section 29(3), ‘not less than two . . . months after the giving of the landlord’s notice’ — Landlord’s notice given on March 23 1983 and tenant’s application made on May 23 — County court judge held tenant’s application premature on the ground that the period of two months did not end until midnight on May 23 — Tenant appealed — Held that the county court judge was in error as his construction amounted to interpreting ‘not less than two months’ as meaning ‘more than two months’ — May 23 was exactly two months after March 23 and could not be treated as less than two months after that date — The judge’s decision was contrary to the reasoning of the House of Lords in Dodds v Walker and would transform the ‘corresponding date rule’, endorsed by the House, into ‘the corresponding date plus one rule’ — An alternative ground of appeal based on waiver did not require to be considered — Tenant’s appeal allowed
This was an
appeal by tenant, E J Riley Investments Ltd, from a decision of Judge Tibber at
Edmonton County Court holding, in favour of the landlord, Eurostile Holdings
Ltd, that the tenant’s application for a new tenancy under Part II of the
Landlord and Tenant Act 1954 was premature.
Michael Barnes
QC and M Hopmeier (instructed by Blyth Dutton) appeared on behalf of the
appellants; Robert Pryor QC and Roger Bartlett (instructed by Votsis &
Protopapas) represented the respondents.
Giving
judgment, FOX LJ said: This appeal is concerned with a provision of the
Landlord and Tenant Act 1954 specifying time-limits in relation to a tenant’s
application for a new tenancy under section 24(1) of the Act. The provision in
question is contained in section 29(3) of the Act which provides:
No
application under subsection (1) of section 24 of this Act shall be entertained
unless it is made not less than two nor more than four months after the giving
of the landlord’s notice under section 25 of this Act . . .
These
requirements as to time are specified by Parliament and no dispensing power is
given to the court. They must be strictly applied. Thus, in Dodds v Walker
[1981] 1 WLR 1027 the question related to the requirement in section 29(3) that
the application be made not more than four months from the giving of the
landlord’s notice. That notice had been given on September 30 1978. The
tenant’s application was made on January 31 1979. It was held by the House of
Lords that the application was one day too late.
In the present
case we are concerned with the first limb of the provision in section 29(3),
namely the requirement that the application must be made ‘not less than two . .
. months . . . after the giving of the landlord’s notice’. That notice was
given on March 23 1983 (it was dated the previous day but was not served until
the 23rd). The application for a new tenancy was made on May 23. Judge Tibber
held that the application was premature and could not be made until May 24. He
also held that the landlord had not disentitled itself by waiver or otherwise
from relying on the defect. The result of that decision would be that the
tenant company had lost its rights under the Act, since the four months’ period
had expired without a valid application having been made. The tenant now
appeals.
The word
‘month’ in this statute means calendar month (Interpretation Act 1978). And
when calculating a period of a month or months from a specified event such as
the giving of a notice, the general rule of English law is that ‘the period
ends upon the corresponding date in the appropriate subsequent month, ie the
day of that month that bears the same number as the day of the earlier month on
which the notice was given’. (See Dodds v Walker at p 1029 per Lord
Diplock.) Applying this rule, the four
months’ period in Dodds v Walker expired on January 30. I should
add that, in calculating the period, the day of the specified event is excluded
(see Dodds v Walker at p 1029).
Lord Russell
of Killowen in Dodds v Walker at p 1030 illustrated the operation
of the rule. He said:
For example
in a four-month period, when service of the relevant notice was on September
28, time would begin to run at midnight on September 28/29 and would end at
midnight on January 28/29, a period embracing four calendar months.
It is said on
behalf of the landlord in the present case (and it was accepted by the judge)
that two months from March 23 did not expire until midnight on May 23/24 and
that accordingly the application could not be made until May 24. I do not feel
able to accept that. There are three relevant groups of dates, namely:
(1) The dates which are more than two
months after March 23 1983. These are May 24 1983 and subsequent dates.
(2) The dates which are less than two
months after March 23 1983. These are March 24 to May 22 (inclusive).
(3) The date which is two months from March 23
1983. It seems to me that is May 23 1983.
The landlord’s
case is that dates before May 24 are less than two months from March 23. But
that is construing the words ‘not less than two months’ as meaning ‘more than
two months’. I see no reason why the court should do that. It does not give
effect to the differing language which the draftsman has used in relation to
the two- and the four-month periods. He has not said ‘unless it is made more
than two and not more than four months after the giving of the landlord’s
notice’. He has said ‘not less than two months and not more than four months’.
In my opinion,
just as there are dates which are less than two months after March 23 and dates
which are more than two months after March 23, there must be a date which is
simply two months, no more and no less, after March 23. That in my view is May
23. In short, you apply the corresponding date rule (which gets you to May 23)
and ask: ‘Was the application made before that?’ If the application is made on the
corresponding date, it cannot be said to be either before or after the
corresponding date.
We were
referred to R v Turner [1910] 1 KB 346. In that case ‘not less
than seven days’ notice’ was construed as seven clear days’ notice. I do not
think that is of assistance. We are concerned with the operation of the
corresponding date rule and not with ‘clear’ months.
I should
mention that, since the completion of the argument, our attention has been
drawn to section 26(6) of the Landlord and Tenant Act 1954. I do not, however,
find anything in that provision which leads me to any different conclusion.
Accordingly, I
conclude that the application was not premature and is a valid application.
Having regard to that conclusion, it is not necessary for me to deal with the
tenant’s alternative argument based on waiver.
I would allow
the appeal.
Agreeing, SIR
ROGER ORMROD said: Section 29(3) of the Landlord and Tenant Act 1954 provides
that no application by a tenant for a new tenancy under section 24 shall be
entertained unless it is made ‘not less than two nor more than four months’
after the giving of a landlord’s notice under section 25.
It is common
ground in this case that the landlord’s notice was ‘given’ on March 23 1983, ie
the date of its receipt by the tenant. The tenant made its application to the
court on May 23 1983, ie exactly two calendar months after receipt of the
landlord’s notice. It is common ground that references to ‘months’ are
references to calendar months.
The landlord,
after receiving the advice of counsel in November 1983 (but interestingly not
before) now contends that the application to the court was not made ‘not less
than two months’ after the landlord’s notice and is therefore invalid and the
court has no jurisdiction to entertain the application for a new tenancy.
Mr Pryor
submits that the period of two months did not end until midnight on May 23, so
the application was premature. The learned judge accepted this submission and
dismissed the application.
If this
argument is correct, it leads logically to the conclusion that an act done
exactly two months after the relevant event was done less than two months after
the event which, to my mind, is absurd.
It is, in any
event, impossible to reconcile this with the views expressed by the House of
Lords in Dodds v Walker [1981] 1 WLR 1027. In that case their
lordships endorsed the general rule, called the ‘corresponding date rule’,
which provides that where the relevant period is a specified number of months
after the relevant event, the period ends on the corresponding day of the
subsequent month, ie in this case, the relevant event having occurred on March
23, the period is two months, so that the period ends on May 23. This rule is
simple and based on commonsense. If Mr Pryor is right, the corresponding date
rule becomes the corresponding date plus one rule.
In my
judgment, therefore, the tenant’s application was not premature and this appeal
should be allowed. It is not necessary, therefore, to come to a decision on Mr
Barnes’ second point, and I prefer to express no view about it.
The appeal
was allowed with costs.
