Notice to determine business tenancy–Chapter of errors–Mistake as to date at which notice purported to have been given, not as to termination date–Whether mistake affected validity of notice–When notice read with covering letter it would not have misled any reasonable tenant–Tests generally applicable to slips as to dates in notices to quit–Notice held to be valid
This was an
appeal from a decision of Judge Dewar at Bloomsbury County Court holding that a
notice given by Germax Securities Ltd, the respondents to the present appeal,
was a valid notice to terminate the tenancy of business premises occupied by
Armin Spiegal, the present appellant.
R Yajnik
(instructed by Paul Davis & Co) appeared on behalf of the appellant; D M W
Barnes (instructed by Paisner & Co) represented the respondents.
Giving
judgment, BUCKLEY LJ said: This is an appeal from a decision of His Honour
Judge Dewar, given at the Bloomsbury County Court on October 7 1977, when he
declared that a notice to quit given by the plaintiffs to the defendant, Armin
Spiegal, was a valid notice.
The tenancy
under which the notice was given was created by a lease of March 19 1971; it
was a lease of business premises for a term of seven years from June 24 1970, therefore
terminating on June 24 1977. The landlords wished to bring the tenancy to an
end at the termination of the leasehold term, and on August 24 1976 they served
a notice purporting to determine the lease on February 27 1977. The point was
taken by the tenant’s solicitors that the notice was invalid because it was a
notice to determine the lease at the wrong date, and that position was accepted
by the landlords’ solicitors who, on November 25 1976, served by post another
notice determining the tenancy at June 24 1977, the correct date.
The draft of
that notice to determine the tenancy was in the appropriate form prescribed by
the regulations under the Landlord and Tenant Act 1954 and the draft is dated
November 25 1977. But, by a most unfortunate and careless slip, whoever copied
that notice in the offices of the landlords’ solicitors for the purpose of
preparing the actual document which was sent to the tenant, dated the notice
March 25 1977 instead of November 25 1976. As Goff LJ now points out, the draft
also is wrong because the date at the foot of the draft is November 25 1977
instead of 1976. So there was not the desired degree of accuracy in the matter,
but it must have been clear to the tenant from the covering letter that the
notice was intended to be a notice served as on November 25 1976, or on receipt
of the notice by the tenant in the due course of post, and not on March 25
1977, the date which it bears at its foot.
It is a notice
in the prescribed form, giving notice terminating the tenancy on June 24 1977;
para 2 of the notice requires the tenant within two months after the giving of
the notice to notify the landlords’ solicitors in writing whether or not the
tenant was willing to give up possession of the premises.
The learned
judge took the view that this was an obvious slip and that it would have been
clear to the tenant precisely what the landlord was intending to do, that is to
say, serve notice in November 1976 and not to serve notice which was to take
effect only at a later date; accordingly he held that the slip in the date at
the foot of the notice was of no significance and that the notice was a valid
notice.
Mr Yajnik, who
I think has said whatever can be said in support of this appeal, has referred
us to the case of Hankey v Clavering, which is reported in [1942]
2 KB 326. That was a case, decided in this court, where a mistake had been made
in specifying the date at which the landlord intended to determine the tenancy.
In that case there was a lease for 21 years from December 25 1934, terminable
at the end of seven years on six months’ notice. The landlord gave the tenants
a notice which purported to determine the lease on December 21 1941, but that
was a date on which the landlord could not have determined the lease under its
terms, though he might have determined it at December 25 1941. In that case it
was held that although the mistake as to the date was obviously due to a slip
on the part of the landlord, the notice was invalid because the landlord was
attempting to do something which under the lease he had no power to do.
In Carradine
Properties Ltd v Aslam, reported in [1976] 1 WLR p 442, Goulding J
had to consider a case of a lease for 21 years from September 27 1968 which
provided for its earlier determination by either party at the end of the first
seven or 14 years of the term on 12 months’ previous notice in writing. The
landlords gave a notice dated September 6 1974, stating
1973, a date which was actually before the date of the service of the notice.
Goulding J held that there it would have been clear to any reasonable tenant
that there had been a mistake and that the intention of the landlords was to
determine the tenancy at September 27 1975 and he held that the notice was a
good notice notwithstanding the slip. In that case no reasonable tenant could
possibly have supposed that the date in the notice, September 27 1973, was the
date correctly intended by the landlord; it clearly was a mistake which must
have been apparent, to anyone who knew the facts, as a mistake.
The learned
judge formulated the test in this way at p 444 at the letter G: ‘I would put
the test generally applicable as being this: ‘Is the notice quite clear to a
reasonable tenant reading it? Is it
plain that he cannot be misled by it?’. Applying that test, if applicable, to
the present case,’ the learned judge went on to say, ‘I think the notice would
be saved because the tenant receiving that notice and knowing the terms of the
lease must have seen there was a mistake, as it would not say ‘1973’ in 1974.
Once that is accepted, it is obvious that the notice is for 1975 and not 1973.’
Mr Yajnik has
submitted that in the present case the notice served by the landlords is open
to the construction that it was intended by the landlords to take effect only
from March 25 1977; but, reading the notice with the covering letter, I do not
think it can be said that any reasonable tenant would have been misled here.
The mistake in this case was not in the operative part of the notice; it is
merely a mistake in relation to the date at which the notice purports to have
been given by the landlord. That that was a mistake is clear from association
of the notice with the covering letter.
In my judgment
there is really no ground in the present case for saying that the tenant
receiving the notice would be liable to be misled, and for the reasons given by
the learned judge in the court below I am of the opinion that the notice took
effect as a valid notice, and I would dismiss this appeal.
ROSKILL LJ
agreed.
Agreeing, GOFF
LJ said: I would add, if I may, just one small point on the facts. As my Lord
has observed, the date specified in the notice as that on which the tenancy was
to determine was the date upon which, according to the contractual terms, it
would expire by effluxion of time. It was necessary, however, to serve a notice
in order to secure that it would determine at that date because the tenancy
fell within Part II of the Landlord and Tenant Act, and, therefore, must
automatically continue beyond the contractual date by virtue of section 24,
unless determined in accordance with the provisions of Part II of that Act,
which brings in section 25, and that section gives the landlord power, by a
proper notice, to determine on the contractual date.
The appeal
was dismissed with costs.
