Agricultural holdings–Section 23 of Agricultural Holdings Act 1948 (now section 1 of Agricultural Holdings (Notices to Quit) Act 1977)–Effect of statutory provision requiring a minimum of 12 months’ notice to quit in ordinary cases–Whether this provision overrode and rendered ineffective an agreement between the parties that a notice which had been served of slightly less than the statutory length should be accepted as valid–Held that there was nothing to prevent the parties to an agricultural tenancy from waiving any defect in a notice to quit, including a failure to comply with the statutory provision as to length of notice–Parties cannot, however, agree in advance, either in the tenancy agreement or otherwise, that a tenancy can be terminated by less than the statutory length of notice–Such advance agreement would conflict with the words in the section ‘notwithstanding any provision to the contrary’–Declaration in favour of landlords
This was an
appeal by the landlords, Richard William Hilary Elsden and Charles Michael
Watson-Smyth, from a decision of Robert Wright QC, sitting as a deputy High
Court judge in the Chancery Division, refusing the landlords’ claim for a
declaration that they were entitled to possession of Woodside Farm, Newton,
Lincolnshire. The tenant was John Shelbourn Pick, the defendant in the action
before Mr Wright and the respondent to the present appeal. The notice to quit
which was the subject of these proceedings was dated April 4 1977 but was
served on April 7 1977 to determine the tenancy on April 5 1978. (In fact the
correct term date was April 6, but this point was not a matter which formed an
issue either at the trial or the appeal.)
Maurice Price
QC and H M Harrod (instructed by Dawson & Co) appeared on behalf of the
appellants: Jonathan Parker QC (instructed by Roythorne & Co, of Spalding,
Lincolnshire) represented the respondent.
Giving the
first judgment at the invitation of Buckley LJ, SHAW LJ said: This is an appeal
by the plaintiffs in the action from a judgment of Mr Robert Wright QC, sitting
as a deputy High Court judge, given on February 26 1979 whereby he refused
their claim for a declaration that they were entitled to possession of Woodside
Farm, Newton, Lincolnshire, as on April 6 1978.
The plaintiffs
were at all material times the trustees of a settlement which included the
Welby Estate. The principal beneficiary under the settlement is Sir Bruno
Welby, Bart. He was concerned with the management of the estate, of which a Mr
R M Cawthra [BA FRICS] was the land agent.
Included in
the estate were a number of farms some of which were let to tenant farmers.
Two, which were known respectively as Woodside Farm and Welby Warren Farm, were
so let to the defendant, Mr Pick, who by 1977 had occupied them for many years.
For reasons which are not relevant to the present appeal, the Welby Estate had
at some time towards the end of the 1960s adopted the policy of not reletting
farms on the estate when they fell vacant. Sir Bruno had formed a family
company called D & S Farms Ltd; it took over the tenancies of such farms
and farmed them in partnership with a Mr Giles Halfhead under the partnership
title Sapperton Farming Co.
At the
beginning of 1977 Mr Pick, who had until then farmed Welby Warren Farm and
Woodside Farm with reasonable success, found himself surrounded by misfortune,
both matrimonial and financial. His wife was in the process of divorcing him.
He was confronted by burdensome obligations and liabilities. He was in a state
of great mental stress and consulted his solicitor about his various troubles.
On April 1 1977 the solicitor wrote advising him that from what he had been
told there was a real possibility that Mr Pick might have to cease business. Mr
Pick himself foresaw that he might find himself so destitute of resources that
he would not be able to pay the rent of his farm, or at any rate the rents of
both of them. In that situation he did what an honourable man would do. On
April 4, which was a Monday, he went to see Mr Cawthra, who acted for the
landlord trustees, and told him what his position was. Their respective
versions of what took place as recounted in their evidence before the learned
deputy judge did not altogether tally. The judge’s assessment of them as
witnesses was that each was honestly seeking to recall what was arranged
between them at that meeting but that Mr Cawthra’s recollection was the more
reliable. This assessment is not challenged. According to Mr Cawthra he was
shown the letter from Mr Pick’s solicitor. A half year’s rent in respect of
each of the two farms held by Mr Pick was to fall due on April 14. He was
concerned as to whether he should give notice to terminate one or both
tenancies. The requisite notice was one year’s notice in writing, expiring on
April 6 in any year. If, therefore, Mr Pick wished to bring either tenancy to
an end by notice he would have to give that notice before April 6 1977 so as to
expire on April 6 1978.
Mr Cawthra was
not then anxious to recover possession of the farms held by Mr Pick, who had
been over many years a good tenant as well as a good farmer. He suggested that
Mr Pick might bide his time at least for a few days before coming to a final
decision as to relinquishing either or both of his tenancies. In pursuance of
this suggestion he proposed that Mr Pick should make out notices in respect of
each farm, dated April 4 1977 to expire on April 5 1978. This latter date was
erroneous as it should have been April 6, but this slip appears to have passed
unnoticed even at the trial and has not been the foundation of any of the many
submissions addressed to this court. Mr Cawthra’s suggestion was that if by the
end of the week (that is by Saturday April 9 1977) Mr Pick had resolved to give
notice to determine one or both of his tenancies he might then give the notice
antedated as proposed and it would be accepted. Mr Cawthra, when cross-examined
at the trial, said he was not absolutely certain whether or not late service
would invalidate the notice. He said, ‘I thought if we agreed delayed service
it would be valid.’ According to the
learned deputy judge’s findings, Mr Pick accepted Mr Cawthra’s proposals and
went away to consider them in relation to his own financial circumstances and
prospects. It seems also that Mr Cawthra promised that if later on Mr Pick’s
position improved and he wished after all to continue as before, then Mr
Cawthra would recommend to the landlords that Mr Pick be allowed to retract his
notice.
On Thursday
April 7, Mr Pick returned to Mr Cawthra’s office. He took with him two letters.
Each bore the date stamp ‘April 4 1977.’
The first
letter read: ‘Dear Mr Cawthra, Following our conversation this morning, after
giving more thought to it, and talking to father about it, I enclose a form of
words which I hope you will accept as notice on the Newton Farm. The Welby
Farm, I think, I should not give up unless I have to. I need a little more time
to work out the implications on that one. Many thanks for your sympathy and
understanding. Yours sincerely, John Pick.’
The second
document was a notice in respect of Woodside Farm; the body of it was in these
terms:
To the
Trustees of the Newton Settlement, the Estate Office, Denton. I, John Shelbourn
Pick, tenant of the farm known as Woodside Farm, situate at Newton, near
Sleaford in the County of Lincolnshire hereby give you notice of my intention
to terminate my tenancy of the above holding on April 5 1978.
Underneath is
written: ‘Dated April 4 1977. Signed J S Pick, Woodside Farm, Newton,
Sleaford.’
Mr Cawthra
enquired whether that notice represented Mr Pick’s final decision. Mr Pick said
it did. He asked for some grace in regard to the payment of rent due for
Woodside Farm on April 12, and was accorded it. In the event the rent for each
of the farms was duly paid by Mr Pick. According to his version of the arrangement
between him and Mr Cawthra the notice to quit should then have been torn up.
However, this assertion was rejected by the deputy judge and it is unnecessary
to consider it further. However, when early in the following August he got a
letter from Mr Cawthra the contents of which indicated that his tenancy was
regarded as coming to an end, he wrote a reproachful letter. It was dated
August 12 1977 and read thus:
Dear Mr
Cawthra, I am very distressed by your letter received this morning. I cannot
believe that you would do this, after 40 years here as loyal tenants, because
of a hasty, unnecessary act done without any advice. I was very close to a
nervous breakdown at the time, a time of extreme stress the reasons for which I
discussed with you, and I must appeal to you not to try to hold me to the
consequences of such an irrational action. Perhaps we could discuss the matter.
Incidentally, I trust that this will now be treated reasonably confidentially
–and he goes on
to say why.
It is evident
from the tone and tenor of this missive that Mr Pick believed that he had given
a notice which would be effective to determine his tenancy of Woodside Farm if
it was to be taken at its face value. Mr Cawthra’s response was that matters
had progressed too far to allow the notice to quit to be retracted.
Thereafter Mr
Pick, having procured a copy of that notice, consulted his solicitors. He has
since maintained that the purported notice was ineffective and did not
determine his tenancy. Accordingly he has asserted a right to remain in
possession. Hence the claim for a declaration. Mr Pick’s basic contention has
been that the purported notice to quit Woodside Farm was not an effective
notice because it was not in conformity with the requirements of the tenancy agreement
and contravened section 23(1) of the Agricultural Holdings Act 1948, which I
now read:
A notice to
quit an agricultural holding or part of an agricultural holding shall
(notwithstanding any provision to the contrary in the contract of tenancy of the
holding) be invalid if it purports to terminate the tenancy before the
expiration of twelve months from the end of the then current year of tenancy.
This is the
root of the controversy which was ventilated in the court below. The learned
deputy judge came to the conclusion that the effect of that statutory provision
was to vitiate a notice which did not conform to the requirement of being a
year’s notice expiring on April 5 (sic). The judge regarded the
provision as mandatory and as permitting of no contractual relaxation in any
circumstances. He dismissed the plaintiffs’ contention that the arrangement or
agreement made between Mr Cawthra and Mr Pick served to validate the notice as
and when served in these terms: ‘Finally, as a matter of legal analysis, whereas
in this case the tenancy agreement provides for twelve months’ notice, I find
difficulty in seeing how an arrangement to accept short notice can be treated
otherwise than as a variation of the tenancy. If so, it falls within the
prohibition in section 23 against contracting out.’
As I have
said, this was the primary issue; but the plaintiffs were not without other
resources. Apart from any question of due statutory notice, Mr Price QC
contended on their behalf that a tenant could at any time surrender his
interest and if that surrender was accepted the interest would thereupon cease.
This contention was rejected on the ground that the parties had not got a
surrender in contemplation. The learned judge said:
I am afraid I
cannot accept it because as a matter of fact Mr Pick and Mr Cawthra did not
intend to enter into a conditional contract of surrender. Mr Cawthra thought he
was accepting late service of a notice under the tenancy agreement. This is
made clear by the passage from his evidence which I have set out above: ‘I
thought if we agreed delayed service it would be valid.’ His requirement that the notice should be
dated before April 5 points in that direction. So also does his evidence
generally. He told me that he considered that this was going to be a
termination of the tenancy in the ordinary way. This is also confirmed by Mr
Cawthra’s attitude when he had written to Mr Pick the letter dated August 10
1977 and it had become apparent that Mr Pick did not wish to leave. Mr Cawthra
wrote in a letter dated August 15 1977: ‘. . . it would appear that you are now
asking for the notice to quit Woodside Farm next Lady Day to be
withdrawn.’ In a letter of September 7
1977 he wrote that Mr Pick on a certain occasion had not even suggested that he
might ‘be regretting giving his notice.’
The form of the notice to quit which I have already read indicates a
notice to quit under the tenancy agree-ment. That was also Mr Pick’s
understanding of the position. I find this to be so on the evidence of what
took place on this point at the meeting of April 4. There is really no dispute
about this part of what took place.
On this basis
the notice falls fairly and squarely within the prohibition in section 23.
The learned
judge goes on to say:
I realise,
however, that what the parties may have said is not conclusive. They are not
lawyers. It is the duty of the court to ascertain the legal consequences of
what has been done. The name parties give to a transaction may not determine
its legal nature. Nevertheless, a contract is a matter of the intention of the
parties. In this case I am satisfied that the intention was to give a notice
under the tenancy agreement but to accept service of it late. I do not think
the court can hold the arrangement to be a contract of surrender. That would be
to distort what I find to be the agreement which the parties reached.
Moreover, I
do not think the court ought to be astute to analyse a transaction so as to
bring it outside a statutory provision when the consequence would be (a) to
distort the true intention of the parties and (b) to drive a coach and four
through the statutory provision.
Having
reached that conclusion it is unnecessary for me to deal with the questions of
law which arose on the basis that the contract was one of surrender.
In this
connection there had arisen also problems as to consideration and whether or
not there was a sufficient memorandum in writing to satisfy section 40 of the
Law of Property Act 1925, since a surrender involved, if only incidentally, the
transfer of an interest in land. As to consideration, Mr Price submitted that
mutual promises to forgo existing contractual rights constituted consideration
passing from each of the parties related as landlord and tenant. The learned
judge accepted this, but was of the view it did not resolve the problem. Mr
Price conceded that there was no sufficient memorandum in writing. This
appeared to me, as to the other members of this court, a somewhat surprising
concession, since the notice dated April 4, and the letter which accompanied
it, contained all the essential elements of a memorandum for the purposes of
section 40. Mr Price asked leave to retract his concession and as it was made
in relation to the construction of documents, which is a matter of law, that
leave was granted. If, therefore, surrender may provide a solution there is no
inhibiting evidential factor. This being so, it is unnecessary to pursue the
somewhat desperate proposition, as it seems to me, that there was part
performance on the part of the plaintiffs which was sufficient to support their
claim to specific performance of the agreement between them and Mr Pick that he
would surrender his tenancy on April 5 1978. The part performance relied upon
consisted of acts done by the plaintiffs in relation to collateral matters such
as employing the services of a valuer to arrive at figures for the tenant’s
interest so as to determine compensation and so on. It was contended that these
acts done, not in pursuance of the contract of surrender itself, but in reliance
on its having been made and fulfilled, came within the concept of acts of part
performance as delineated in Steadman v Steadman [1976] AC 536. I
do not myself read their Lordships’ opinions in that case as enlarging the
fundamental concept of acts of part performance. Such acts must still be in
furtherance of the contract and not merely a recognition of its existence or
its contemplation. However, it is unnecessary, in the light of the view I have
reached as to the primary issue, to dwell further on this aspect. I content
myself by saying that I do not regard the speeches in Steadman v Steadman
as introducing a radical change in the basic concept of what may be regarded as
an act of part performance. It must still necessarily be an act in furtherance
of the contract alleged to have been made, although it may not go so far as to
amount to the discharge of any primary obligation imposed by it.
Another
argument for the plaintiffs was founded on estoppel. In this court it was
enlarged so as to take in the subtle ramifications of promissory estoppel. Mr
Parker QC, who appeared for the defendant before the deputy judge as well as on
this appeal, met this with the retort that estoppel cannot aid a party to
overcome what was a statutory prohibition. This was indeed the essential theme
of the defendant’s case in refutation of every contrary argument. It was the
simple statement that section 23(1) precluded the efficacy of any notice to
quit which was of less than 12 months’ duration and that was the end of any argument.
I therefore
turn back to the section itself in order to examine its language and to deduce
its true tenor. It is true that it is designed principally to protect the
tenant farmer from peremptory or unduly prejudicial ejectment on the part of
the landlord. Nonetheless it serves also to protect a landlord from the
abandonment of a tenancy in circumstances which may cause a discontinuity in
cultivation or a lapse from proper standards of husbandry. Thus the time for
the ending of a tenancy is a matter of common interest both to a landlord and
to his tenant. It may suit them both to determine a tenancy without waiting for
what may be as long as nearly two years to bring it to an end. No statute could
have so absurd an intention as to constrain a landlord and a tenant of an
agricultural holding to remain bound in that relationship at a time when
neither desires that it should endure. If they are in accord, can it matter
whether they demonstrate that accord by an agreement to surrender or an
agreement to accept short notice?
I have read
section 23(1); the first matter to observe is that the subsection uses the word
‘invalid’ and not ‘unlawful.’ Thus there is no penal prohibition; it is simply
that provision in the tenancy agreement for a shorter notice than 12 months is
nugatory. So also any variation of a tenancy agreement in relation to an
agricultural holding which purports to make a shorter period of notice than 12
months effective will fail of its purpose. This produces the situation that
there can be no operative provision whereby notice can in prospect be made
effective if it is less than 12 months; but a notice is of course a unilateral
act available to one party or the other without the ad hoc consent of the party
to whom the notice is given. There seems to me to be no impediment created by
section 23(1) to the party in receipt of a notice to quit to waive his strict
right that the notice should expire on a particular day or that it should be of
a particular duration. A contractual provision which enures for the benefit of
a party can be waived by that party albeit that his right to that benefit is
reinforced by statute. There may be circumstances which might qualify this
situation, as where an element of public interest is involved, but in such a
case one would expect the statutory provision to speak in terms of illegality
(thus: ‘it shall be unlawful’) rather than of mere invalidity.
I would wish
to pay respectful tribute to the careful analysis of the learned deputy judge;
but in my judgment he erred in concluding that as between the landlord and the
tenant of an agricultural holding there could not be a waiver of the requisite
term of notice. The statutory provisions do not extend to a situation such as
that which developed between Mr Cawthra, acting on behalf of the plaintiffs,
and Mr Pick. The outcome of their discussions on April 4 and the acceptance by
Mr Cawthra of the notice and the accompanying letter handed to him on April 7
was that the landlords effectively waived, as I am of the view that they were
entitled to do, the requirements of the tenancy agreement as to the term and
the expiry of the notice. The plaintiffs were not precluded from such waiver by
section 23(1) of the Agricultural Holdings Act 1948 or in any other way. It
follows that in my judgment Mr Pick’s tenancy was duly determined as at April 5
1978, and that the plaintiffs were entitled to the declaration claimed in their
writ.
I would allow
the appeal and make that declaration in their favour.
Agreeing,
BRIGHTMAN LJ said: On April 7 1977, in the circumstances outlined by Shaw LJ,
the tenant of Woodside Farm, Newton, handed to the landlords’ agent his notice
of intention to quit, dated April 4. Accordingly the length of the
notice fell short of one year by a matter of three days. The notice was
accompanied by a letter from the tenant to the agent, ‘I enclose a form of
words which I hope you will accept as notice on the Newton Farm. The Welby
Farm, I think, I should not give up unless I have to.’ Both the landlords’ agent and the tenant
fully understood that less than one year’s notice was being given. The agent
agreed with the tenant that he would accept the notice to quit as a valid
notice notwithstanding that the length of the notice was short. The landlords’
agent also accepted the notice despite another defect, namely, that the notice
did not strictly accord with the tenancy agreement in that the date of
termination was expressed to be April 5 and not April 6 (a point which was
probably not appreciated by either side, and upon which nothing turns). It was
the intention of the landlords’ agent, and also the intention of the tenant,
that the tenancy should end on April 5 1978 by virtue of the defective notice
so given.
The tenant now
seeks to resile from the mutually intended consequence of the defective notice
to quit. To do so the tenant relies on section 23 of the Agricultural Holdings
Act 1948. The question is whether he can lawfully do so. The trial judge held
that he could.
Section 23(1)
provides that a notice to quit an agricultural holding shall be invalid if it
purports to terminate the tenancy before the expiration of 12 months from the
end of the then current year of the tenancy. If, for example, an agricultural
holding is held on a yearly tenancy which is silent as to the length of notice
to quit required to terminate the tenancy, the notice will be invalid if it
purports to be less than a 12 months’ notice, calculated in the specified
manner, although only a six months’ notice is required at common law. Even if
the tenancy agreement specifies that a shorter length of notice may be given, a
notice of less than 12 months would still be invalid, because the subsection
has effect ‘notwithstanding any provision to the contrary in the contract of
tenancy of the holding.’
In the instant
case the tenant’s counsel argued that a notice which is defective because it is
short is defective in all circumstances and for all purposes, and is incapable
of valid acceptance by the recipient. If a notice served by the tenant is short
by a day, but the landlord is content to accept it and so agrees with the
tenant, nevertheless the notice is waste paper and the agreement of the parties
is valueless. It is no good the tenant saying ‘Please accept this notice as a
valid notice to quit although it is short by a day’ and the landlord saying ‘I
am willing to accept it.’ They have to
go off to their solicitors and ask for a written agreement to be drawn up to
end the tenancy. Such an agreement, says counsel, will be perfectly valid. But
not an agreement by the recipient of the notice to accept the notice though
defective in length.
Take this
extreme case. The landlord serves on his tenant notice to quit. The notice is
one day short of the statutory 12 months. The tenant spots the defect and
informs the landlord of it, but states that he will accept the notice despite
the defect. The tenant intends to emigrate and makes all his plans to leave the
country. I will assume that the landlord does not know about the tenant’s
plans, so as to avoid any complications about estoppel. A day before the notice
expires the landlord tells the tenant that the notice to quit was indeed
invalid, but that the invalidity was not cured by the landlord’s express
acceptance of the notice and that the tenant is legally liable for another
year’s rent and performance of the covenants, or more likely two years having
regard to the timing which I have assumed in this extreme example. On the
argument put forward by the respondent’s counsel, the landlord will have a
cast-iron case against his tenant.
I ask myself
whether this can possibly be the law. I do not think it can be. What section 23
means is that a short notice to quit is invalid as against the recipient. A
tenant is not bound to accept less than the statutory 12 months’ notice to quit
served by his landlord (nor vice versa) even if the tenancy agreement so
provides. If the tenant chooses to do so, he can simply ignore a short notice
served on him and resist any attempt by the landlord to recover possession on
the strength of it. But if the tenant wishes to do so, he can bind himself to
accept it. The parties are entitled to agree that the notice shall be treated
in all respects as if it were a notice of the statutory length. If the parties
so agree, the tenancy will come to an end on the agreed date by virtue of the
defective notice to quit which it is agreed shall be treated as valid. Such an
agreement could not effectively be made before a notice to quit is served,
because the parties cannot agree that the tenancy shall be capable of being
terminated by a short notice. Neither the landlord nor the tenant can bind
himself in advance to accept a short notice from the other of them. That would
be a ‘provision to the contrary’ in, or supplemental to, the contract of
tenancy and would not be effective. But once an invalid notice has been served,
which the recipient is entitled to ignore, I see nothing in section 23 to
prohibit an agreement between landlord and tenant that the notice shall be
followed by the same consequences as if it were valid.
There is an
alternative approach, which in my view is equally tenable. Although in the
instant case the notice to quit is invalid qua notice to quit, it contains all
the ingredients which are needed to constitute a valid written acceptance on
April 7 of the oral offer made on April 4 by the landlords’ agent, or (if this
is the correct interpretation of the events) a valid written offer on April 7
which the landlords’ agent accepted orally on the same day. The difference
between the two interpretations is of no moment because the legal consequences
are the same. On the assumption that the latter interpretation is correct, the
defective notice was an expression of the intention, and therefore of the
willingness, of the tenant that the tenancy agreement should terminate on April
5 1978, which intention the tenant communicated to the landlords’ agent in the
hope or expectation that the agent would accede thereto. The agent did accede
thereto, as a result of which there was consensus ad idem between tenant
and agent that the tenancy should end on April 5 1978. Such a course of dealing
seems to me on analysis to be indistinguishable in any relevant respect from an
offer by the tenant to terminate the tenancy on April 5 1978, which offer is
accepted by the landlords. Such an agreement is clearly outside section 23.
I find support
for this approach in the judgment of Bayley J in Johnstone v Hudlestone
(1825) 4 B & C 922 at p 935 to which my Lord, Buckley LJ, invited counsel’s
attention during the course of the argument.
For myself, I
do not mind which way the case is put and I doubt whether there is any
substantial difference between the two interpretations of the events.
I would allow
the appeal for the reasons which I have endeavoured to express.
Also agreeing,
BUCKLEY LJ said: The Agricultural Holdings Act 1948, section 23, is clearly
designed to protect an agricultural tenant against eviction from his holding
against his will by shorter notice than the section prescribes. It may also
confer advantages upon the landlord by ensuring that he will receive at least
12 months’ notice from the tenant of termination of the tenancy. It does not,
like sections 3 and 24 of the Landlord and Tenant Act 1954, provide that a
tenancy shall not come to an end except by being terminated in accordance with
the provisions of the Act. It does not, in my judgment, preclude determination
of an agricultural tenancy on shorter notice than the Act requires if both
parties agree to this. Mr Parker concedes, rightly in my view, that the parties
to an agricultural tenancy can bring the tenancy to an end by an agreement that
the tenant shall surrender the tenancy to the landlord forthwith or by an
agreement that the tenancy shall come to an end at some future date which is
less remote than the earliest date at which it could be brought to an end by a
notice to quit in accordance with the section.
In a case
which is unregulated by any statutory provision, if a tenant gives notice to
quit in circumstances which make the notice ineffective–perhaps because it is
too short or
accept the notice as valid notwithstanding the defect in it: he can waive his
right to rely on the defect. If he does so in a manner which is legally
binding, the notice will take effect as if it were not defective. There is, in
my opinion, nothing in section 23 of the 1948 Act to prevent the parties to an
agricultural tenancy from waiving any defect in a notice to quit, including a
failure to comply with the requirements of the section itself.
It is, in my
opinion, clear upon the evidence that both Mr Cawthra and Mr Pick thought that
the notice to quit handed by Mr Pick to Mr Cawthra on April 7 1977 was an
effective notice, notwithstanding that it was a day late, because Mr Cawthra on
the landlords’ behalf agreed to accept it as effective. Mr Cawthra in evidence
said that he had had some doubts about this, but the learned judge found that
Mr Cawthra believed that the notice would terminate the tenancy. What then
occurred cannot, in my judgment, have constituted a surrender of the tenancy,
for it is well settled that a tenancy cannot be surrendered in futuro. I
agree with the learned judge that in the circumstances of this case one could
not find that there was an agreement for a future surrender of the tenancy. An
agreement to surrender a term or to terminate the relation of landlord and
tenant on a particular date and an effective notice to terminate the tenancy on
that date may have the same legal effect, but they are different transactions;
one operates bilaterally by way of contract, the other unilaterally by setting
a term to a contract (viz the tenancy) in exercise of a power under that
contract.
A contract to
render an existing defective notice to quit effective by waiving the defect is
not, in my view, a contract to vary the tenancy agreement. An agricultural
tenancy could not, consistently with section 23, be modified by agreement
between the parties in such a way that either party to it could terminate it by
a notice to quit which did not accord with the terms of the section. Such an
agreement would conflict with the words of the section which are within
brackets. But it does not follow from this that, when a notice to quit has been
given which fails to satisfy the requirements of the section, the parties
cannot effectually agree that, notwithstanding the defect in the notice, it
shall take effect as though it were a valid notice. Such an agreement would
not, in my opinion, conflict with any part of the section. It would not alter
any of the terms of the tenancy agreement. Its effect is that the parties agree
to the tenancy coming to an end on the date specified in the notice, subject to
which the tenancy remains in full force and effect. So viewed–and in my opinion
rightly so viewed–the agreement comes within Mr Parker’s concession.
I therefore
agree with the learned judge that in the present case the intention of the
parties was that Mr Pick should give notice under the tenancy agreement and
that consequently the acceptance by Mr Cawthra of late service of the notice
did not give rise to a contract for the surrender of the tenancy. With
deference, however, I do not agree with him that the agreement to accept short
notice involved a variation of the tenancy falling within the prohibition in
section 23 against contracting out of the section. In my judgment, Mr Cawthra’s
agreement on the landlords’ behalf on April 7 1977 to accept the notice to quit
as a valid notice effectually determining the tenancy on April 5 1978 had the
effect of a binding waiver of any defect in the notice and of a binding
agreement that the tenancy should accordingly come to an end on April 5 1978.
Such waiver and such agreement did not, in my judgment, conflict with section
23. It is not contended that, if that transaction can legally take effect, it
was not contractually binding and supported by mutual consideration. It is
consequently, in my judgment, binding on the defendant.
For these
reasons and for those contained in the judgments already delivered, with which
I agree, I would consequently allow this appeal.
The appeal
was allowed and a declaration made that the appellants became entitled to
possession of Woodside Farm on April 6 1978. The respondent was ordered to pay
the costs below and three-quarters of the appellants’ costs in the Court of
Appeal.
