Application to renew tenancy of sandwich bar at railway station – Change of landlord on privatisation – Whether tenant’s request posted before, but received after, operative date validly served on new landlord
On May 1 1992 the appellant tenants took an assignment of a lease of premises at Victoria Station, which they subsequently ran as a sandwich bar, the term being expressed to expire on February 11 1995. In early 1994 the tenants received from British Rail Property Board (BRPB), a division of their then landlords, British Railways Board, a notification that as from April 1 1994 the premises would pass into the ownership of Railtrack plc (Railtrack), who would thenceforth collect the rent. The same notice invited the tenants to maintain contact with BRPB until April 5 1994 if they had “any queries whatsoever”. On March 31 1994 solicitors for the tenants sent by ordinary post, addressed to The Solicitor Department, British Railways Board, a notice (the 1994 notice) under section 26 of the Landlord and Tenant Act 1954 (the Act), requesting a new tenancy to commence on February 12 1995. Because of the Easter holiday, the notice was not received until April 6 1994. By letter dated April 25 1994 BRPB, purporting to write on behalf of Railtrack, stated that an application for a new tenancy would be opposed on certain grounds. No such application was made by the tenants within the four months prescribed by section 24 of the Act. On January 4 1995 the tenants served a fresh notice requesting a new tenancy and issued an originating application in March 1995. That application was opposed by Railtrack, relying on Polyviou v Seeley [1979] 2 EGLR 63, on the ground that a second request could not be made if the first was valid. The county court judge accepted the tenants’ contention that the 1984 notice was invalid, because it was not “given to the landlord” for the purpose of section 26(3) of the Act. Railtrack appealed.
Held The appeal was allowed.
1. The tenants had correctly conceded that, by virtue of a special provision made in schedule 8 to the Railways Act 1993, the 1984 notice operated as if it had been addressed to Railtrack. The question therefore was whether that notice had been “given” to Railtrack, having regard to section 66(4) of the Act, which applied the notice-serving provisions of section 23 of the Landlord and Tenant Act 1927.
2. Applying the 1927 Act (as construed in Chiswell v Griffon Land & Estates Ltd [1975] 2 EGLR 58) the correctness of the service of a notice which had been sent by ordinary post had to be adjudged according to whether the recipient (rather than the addressee) was the landlord or duly authorised agent of the landlord. Given the content of the initial BRPB communication and the passing back of the notice by Railtrack to BRPB to deal with as its managing agent, it was proper to conclude that BRPB had received the same as agent for Railtrack. The fact that the notice had been addressed to BRPB as principal rather than agent was immaterial, since the form of address had been validated under the Railways Act as noted above.
Philip Kremen (instructed by Church Adams Tatham) appeared for the appellant; David Hodge QC (instructed by Dewar Hogan) appeared for the respondents.
