Landlord and tenant — Periodic tenancies — Joint tenants — Notice to quit — Two appeals raising the same question — Whether under the general law, in the absence of a contrary provision in a tenancy agreement, a notice to quit given by one only of two joint tenants, without the authority of the other, will bring the tenancy to an end — The appeal in one case was by landlords against the dismissal of a claim for possession, in the other case by a tenant against the dismissal of proceedings to set aside an order for possession — The court considered a number of authorities from Doe d Aslin v Summersett onwards — In the end, despite criticisms, Greenwich London Borough Council v McGrady was followed — After a detailed examination, Howson v Buxton held not to be an authority supporting a contrary view — Limits as to a per incuriam challenge considered — Tenant’s notice to quit in each of the present cases upheld
case the notice purporting to terminate the tenancy of the subject flat was
given by the joint tenant who had been the respondent’s cohabitee — On the
respondent’s refusal to vacate the flat the council landlords sought
possession, but Judge Roger Cooke, at West London County Court, refused the
order and the council appealed — In the Smith case, Mrs Smith, who was a joint
tenant with her husband of a council house, gave the council notice to
terminate the tenancy — On Mr Smith’s refusal to vacate, the
order for possession — An appeal by Mr Smith was dismissed by the assistant
recorder and Mr Smith appealed to the Court of Appeal — In each case the
tenancy was a weekly tenancy and in neither case was the notice to terminate
given with the authority of the other joint tenant
raised the same two issues — The first was whether under the general law a
notice to quit given by one only of two joint tenants, without the authority of
the other, was effective to bring the joint tenancy to an end — The second
issue was whether there was anything in the provisions of the particular
tenancy agreement which affected the position under the general law — On the
general issue it had been thought that the decision of the Court of Appeal in
1982 in Greenwich London Borough Council v McGrady had decided,
approving the old case of Doe d Aslin v Summersett and the more recent decision in
Leek & Moorlands Building Society v Clark, that a notice to quit given by one of
several joint tenants could bring the tenancy to an end — However, in the
present appeals the decision in McGrady was attacked as being inconsistent with
the earlier Court of Appeal decision in Howson v Buxton and also as having
been given per incuriam
Howson v Buxton, an agricultural holdings case with special facts which
keeps on raising its head, Slade LJ’s analysis in the present appeals made it
clear that the validity of the joint tenant’s notice was not in issue there and
that Scrutton LJ’s statement that one joint tenant cannot effectively give
notice to quit without the authority of the other was a ‘mere obiter dictum’ —
Having thus disposed of the criticism based on Howson v Buxton, Slade LJ examined
the suggestion that the McGrady decision had been given per incuriam and
considered an article to that effect in The Conveyancer — After a discussion of
the true nature of a periodic tenancy as continuing indefinitely unless
terminated by a notice to quit, not as re-created by a notional reletting at
the commencement of each new period, and an examination of the per incuriam
doctrine, Slade LJ rejected the submission that McGrady can be regarded as a
decision given per incuriam — McGrady must be regarded (unless or until the
House of Lords decides otherwise) as a binding authority that under the general
law, in the absence of a contrary provision in the tenancy agreement, a notice
to quit given by one of the joint tenants under a periodic tenancy, without the
consent of the other or others, will have the effect of bringing the tenancy to
an end
held that there was nothing in the provisions of either tenancy agreement in
the present appeals to displace the application of the general principle —
There was a somewhat stronger argument on this point in the Smith case, but it
was not strong enough to be effective — The result was to allow the appeal in
the Monk case and to dismiss the appeal in the Smith case — Suggestion by
Nicholls LJ in regard to the forms of tenancy agreement used by local
authorities should be noted
The following
cases are referred to in this report.
Alford v Vickery (1842) Car & M 280
Annen v Rattee [1985] 1 EGLR 136; (1984) 273 EG 503; 17 HLR 323, CA
Doe d
Aslin v Summersett (1830) 1 B&Ad 135
Doe d
Kindersley v Hughes (1840) 7 M & W 139
Doe d
Whayman v Chaplin (1810) 3 Taunt 120
Duke v Reliance Systems Ltd [1988] QB 108; [1987] 2 WLR 1225;
[1987] 2 All ER 858, CA
Edell v Dulieu [1923] 1 KB 533
Gandy v Jubber (1870) 9 B&S 15; (1864) 5 B&S 78; 33 LJQB
151; 9 LT 800; 10 Jur NS 652; 12 WR 526
Gray v Spyer [1922] 2 Ch 22
Greenwich
London Borough Council v McGrady (1982) 81
LGR 288; 46 P&CR 223; [1983] EGD 519; 267 EG 515, [1983] 2 EGLR 32, CA
Howson v Buxton (1928) 97 LJKB 749
Leek
& Moorlands Building Society v Clark [1952]
2 QB 788; [1952] 2 All ER 492; [1952] 2 TLR 401, CA
Opoku-Forfieh
v Haringey London Borough Council unreported
October 17 1988.
Parsons v Parsons [1983] 1 WLR 1390; (1983) 47 P&CR 494; [1984]
EGD 281; 269 EG 634, [1984] 1 EGLR 1
Rakhit v Carty [1990] 2 WLR 1107; [1990] 2 All ER 202; [1990] 2 EGLR
95; [1990] 31 EG 40, CA
Rickards v Rickards [1989] 3 WLR 748; [1989] 3 All ER 193, CA
Viola’s
Indenture of Lease, Re [1909] 1 Ch 244
The first
appeal was by the London Borough of Hammersmith and Fulham from an order of
Judge Roger Cooke, at West London County Court, dismissing their claim for
possession of the ground-floor flat at 35 Niton Street, Fulham, London SW6,
occupied by the respondent, Kenneth John Monk. The second appeal was by James
Martin Smith against the order of Mr A A Goymer, sitting as an assistant
recorder at Barnet County Court, dismissing an appeal from an order of the
registrar refusing to set aside an order for possession of the council house
occupied by the appellant at 119 Alexandra Road, Muswell Hill, London N10. The
respondents to this appeal were the London Borough of Barnet.
In the first
appeal Mark Strachan QC and Lincoln Crawford (instructed by the director of
legal services, London Borough of Hammersmith and Fulham) appeared on behalf of
the appellants; Paul Staddon (instructed by Oliver O Fisher & Co)
represented the respondent, Kenneth John Monk.
In the second
appeal Anthony Radevsky (instructed by Rhodes Barlow, of New Barnet) appeared
on behalf of the appellant, James Martin Smith; Charles Salter (instructed by
the controller of legal services, London Borough of Barnet) represented the
respondent council.
Giving
judgment, SLADE LJ said: There are before the court two appeals which
have been heard consecutively and both raise a common question: under the
general law, in the absence of provision to the contrary in a tenancy
agreement, does a notice to quit given by one only of two joint lessees under a
periodic tenancy, without the authority of the other, have the effect of bringing
the tenancy to an end? In one case this
question was answered by the court below in the affirmative. In the other it
was answered in the negative. In each case the further question arises whether
the provisions of the particular tenancy agreement alter the position which
would otherwise arise under the general law.
The appellants
and respondents to the two appeals have all appeared by different counsel, who
have assisted us by full and careful arguments. However, the submissions for
the respective lessors and lessees in the two cases have all followed much the
same lines and I do not propose to differentiate between them in referring to
them in this judgment.
HAMMERSMITH
and FULHAM LONDON BOROUGH COUNCIL v MONK
In the first
of the two appeals the London Borough of Hammersmith and Fulham (‘the council’)
appeal from an order of His Honour Judge Roger Cooke made in the West London
County Court on February 15 1990 whereby he dismissed their claim for
possession of certain premises known as ground-floor flat, 35 Niton Street,
London SW6 (‘the flat’).
The facts of
this case can be shortly stated. The respondent to the appeal, Mr Kenneth John
Monk, cohabited with a Mrs Powell. In the summer of 1987 Mrs Powell and Mr Monk
signed a written tenancy agreement, which was also signed by a representative
of the council, under which they agreed to take a tenancy of the flat from the
council with August 24 1987 as its commencement date.
The agreement
was in a standard printed form of tenancy agreement, with the names of the
tenants and of the premises and the tenancy commencement date inserted in
manuscript. The front page of the agreement, headed ‘Hammersmith & Fulham
Tenancy Agreement’, began with the words:
The
Conditions of Tenancy and rights and duties of both parties are set out below.
If you are joint tenants the term ‘tenant’ refers to both tenants or all of you
. . .
Save that
clause 3 is headed ‘Tenants’ obligations’ (with the apostrophe after the ‘s’ in
‘Tenants”) the agreement used the expression ‘tenant’ in the singular
throughout. That positioning of the apostrophe is, in my opinion, clearly due
to a clerical error.
Clause 3(a)
provided:
Rent. (a) To
pay the weekly rent and other charges regularly and promptly. Rent is due in
advance every Monday.
Clause 3(t)
provided:
Termination
of tenancy. (t) To give four weeks’ notice, (or such lesser period
as the Council has agreed to accept), to expire on a Monday, when giving up the
tenancy . . .
It is common
ground that the effect of this agreement was to create a weekly tenancy to
which the provisions of the Housing Act 1985 applied.
Subsequently
there were differences between the two tenants. In 1988 Mrs Powell left the
flat. She went to see the council and made certain allegations against Mr Monk.
As the judge found, whether or not these allegations were justified, the
council accepted them and agreed to rehouse her, provided that she terminated
the current tenancy. For the purpose of doing so she came to see Miss Smith, an
employee of the council. Miss Smith drew up, in the form of a letter, a notice
to quit. Mrs Powell signed this letter and gave it to Miss Smith who, as the
judge found, had authority to receive it on behalf of the council and did so
receive it. The notice to quit took the following form:
I hereby give
you four weeks notice in writing of my intention to terminate my tenancy of the
ground floor flat, 35 Niton Street, London, SW6. My tenancy will end on Monday
the 9th of January 1989.
This notice
was unquestionably effective to terminate the tenancy on the last-mentioned
date if Mrs Powell had the legal right to terminate it without Mr Monk’s
authority or consent. However, he had not given her any authority or consent to
serve the notice. He refused to vacate the flat. On February 14 1989, the council
instituted proceedings against him.
The judge
regarded two issues as falling for his decision. The first of them was the
question of general law set out at the beginning of this judgment. The second
was: did this particular tenancy agreement on its true construction require
that a notice terminating the tenancy had to be signed by both tenants if it
was to be effective?
As to the
first of these two questions, the judge referred to the decision of this court
in Greenwich London Borough Council v McGrady (1982) 267 EG 515,
[1983] 2 EGLR 32 (‘McGrady‘), as to which he said:
the facts . .
. are similar in all material respects to the present case and . . . the Court
of Appeal held in firm terms that one of two joint tenants can give notice to
quit terminating the letting.
As the judge
observed: ‘It might have been thought that such authority would have brought
the case to a premature end’. However, he was persuaded that the earlier
decision of the Court of Appeal in Howson v Buxton (1928) 97 LJKB
749 was ‘clear authority for the proposition that one joint lessee alone cannot
give the requisite notice’. Furthermore, the judge regarded the decision in McGrady
as inconsistent with the modern concept of a periodic tenancy as expounded
by the Court of Appeal in Gray v Spyer [1922] 2 Ch 22.
In these
circumstances, the judge said:
I am therefore
faced with the choice, either the Gray v Spyer and Howson v
Buxton line of authority ought to be followed or McGrady ought to
be followed. The earlier line of authority appears to me to be consistent with
principle and it was not cited to the Court of Appeal in McGrady. The
stark choice therefore arises. Which do I [choose]? In my judgment I ought to choose the Gray v
Spyer and Howson v Buxton line and I do.
His answer to
the first of the two principal issues which fell to be considered by him was
therefore that under the general law Mrs Powell did not have power to give a
valid notice to determine the letting and did not determine it.
However, in
case this conclusion was wrong, the judge proceeded to consider the second
issue. As to this, he concluded that, on the true construction of the tenancy
agreement, a notice of termination of tenancy by virtue of clause 3(t) had to
be given by both tenants if it was to be effective.
On both these
grounds the judge decided that no effective notice to quit had been given, that
Mr Monk remained a tenant of the premises and that the council’s claim to
possession should be dismissed. The council now appeal from that decision.
A periodic
tenancy such as a yearly or weekly tenancy is a peculiar form of tenancy. It
differs from a tenancy for a fixed number of years in that, unless determined
by a proper notice to quit, it may last indefinitely. Section 5(1) of the
Protection from Eviction Act 1977 provides (inter alia) that no notice
to quit premises let as a dwelling shall be valid unless it is given not less
than four weeks before the date on which it is to take effect. At common law,
while it is open to the parties to make such arrangements as they please, the
length of notice must, in the absence of agreement to the contrary, in the case
of a weekly tenancy be not less than the length of the tenancy and the notice
must purport to terminate the tenancy at the end of the current period: see Cheshire
& Burn’s Modern Law of Real Property (14th ed) at p 443.
The Court of
Exchequer Chamber in a judgment in Gandy v Jubber, somewhat
unusually reported at (1870) 9 B&S 15 as ‘agreed to’ by Erle CJ, Martin B,
Willes J, Channell B, Keating J, Pigott B and Smith J but ‘not delivered’, in
describing the nature of a tenancy from year to year, stated at p 18:
There is not
in contemplation of law a recommencing or reletting at the beginning of each
year.
In Gray v
Spyer [1922] 2 Ch 22 at p 38 Scrutton LJ, likewise referring to the
nature of a tenancy from year to year as known to lawyers, described it as
defined by
Parke B in Oxley v James as ‘a lease for a year certain, with a
growing interest during every year thereafter, springing out of the original
contract, and parcel of it’. Such a tenancy is for a year certain, terminable
by either side by six months’ notice expiring at the end of the year,
involving, if such notice is not given, another year’s tenancy terminable in
the same way.
In Edell v
Dulieu [1923] 1 KB 533 at p 539, McCardie J similarly referred to the
true principle of law as being ‘not that there was a reletting each year (in
the case of a weekly tenancy), but a springing interest in the tenancy which
could only be determined by a notice to quit’. Since periodic tenancies will
continue indefinitely unless and until determined by a valid notice to quit
served by landlord or tenant, notices to quit will assume particular
significance in their case.
In Doe d
Aslin v Summersett (1830) 1 B&Ad 135 (‘Doe d Aslin‘) it
was held that a notice to quit served by one of two joint lessors without
adoption by the other joint lessor put an end to a tenancy from year to year.
Lord Tenterden CJ, delivering the judgment of the court, said at p 140:
When
joint-tenants join in a lease, each demises his own share, Co Litt 186 a, and
each may put an end to that demise as far as it operates upon his own share,
whether his companions will join with him in putting an end to the whole lease
or not . . .
A little later
(at p 140) Lord Tenterden CJ said:
Upon a joint
demise by joint-tenants
— that is the
lessors in that case —
upon a
tenancy from year to year, the true character of the tenancy is this, not that
the tenant holds of each the share of each so long as he and each shall please,
but that he holds the whole of all so long as he and all shall please; and as
soon as any one of the joint-tenants
— that is the
lessors in that case —
gives a
notice to quit, he effectually puts an end to that tenancy . . .
In Leek
& Moorlands Building Society v Clark [1952] 2 QB 788 (‘Leek
& Moorlands‘) the question for decision was whether a contract by one
of two joint lessees to purchase the reversion terminated a subsisting tenancy
before the full period of the tenancy had run. This court held that it did not.
Somervell LJ, in the course of delivering the reserved judgment of this court,
drew a distinction between a right to determine within the period of a lease
and a right to terminate a periodic tenancy. He described (at p 793) the ratio
of Doe d Aslin as to be found in the second of the passages from Lord
Tenterden CJ’s judgment which I have quoted. He continued:
It is to be
noted that Lord Tenterden was dealing with a notice to quit in respect of a
periodic tenancy. He was not dealing with a right to determine a lease for say
21 years at the end, say, of the seventh or fourteenth year. Nor was he dealing
with surrender.
There is, we
think, force in the submission made on behalf of the plaintiffs, that in the
case of a periodic tenancy Lord Tenterden’s principle would apply when there
were joint lessees. A periodic tenancy continues from period to period unless
the notice agreed or implied by law is given. But if one of two joint lessees
who ‘hold the whole’ wishes it not to continue beyond the end of a period, it
might well be held that it did not continue into a new period. That would
happen only if all, that is, the joint lessees, shall please.
If one
considers a lease to joint lessees for a term certain with a right of renewal,
it would be obvious, we think, that both must join in requiring a renewal. A
periodic tenancy renews itself unless either side brings it to an end. But if
one of two or more joint lessees does not desire it to continue, we would have
thought that it was in accordance with Lord Tenterden’s principle, and with
common sense, that he should be able to make that effective.
Somervell LJ,
however, concluded that that principle had no application to a surrender. Such
a right, in his view, would be exercisable only if all desired to exercise it.
In his words (at pp 794-795):
They all have
the right to the full term, and all must concur if this right is to be
abandoned . . . If property or rights are held jointly, prima facie a
transfer
Finally,
Somervell LJ said (at p 795) that Doe d Aslin was not an exception to
the rule just stated but that
It is an
illustration, in a highly technical field, of the general principle that if a
joint enterprise is due to terminate on a particular day, all concerned must
agree if it is to be renewed or continued beyond that day. To use Lord
Tenterden’s phrase, it will only be continued if ‘all shall please.’
In McGrady the
facts were similar to those of the present case. In 1976 the local authority
had let premises to Mr and Mrs McGrady on a joint weekly tenancy. In
1980 the parties separated. On May 11 1981 Mrs McGrady gave the
authority a notice to quit taking effect on June 15, one of the periodic
tenancy days. Mr McGrady refused to leave and proceedings were brought in the
county court. So far as the report shows, the tenancy agreement contained no
relevant provisions relating to notices to quit. Sir John Donaldson MR, in a
short judgment with which May LJ agreed, described the issue for decision as
being
whether where
there is a letting to joint tenants the act of one of the joint tenants in
giving notice to quit both brings the tenancy to an end and deprives the other
joint tenant of the protection of the Housing Act 1980.
He said that
the law could ‘for practical purposes’ be taken from the decision of this court
in Leek & Moorlands. He said that it was ‘quite clear’ that in that
case this court was approving the decision in Doe d Aslin. Having
referred to Somervell LJ’s description of the ratio of the latter decision and
quoted the passage from his judgment in which he had again adverted to Doe d
Aslin (at p 795 of the report), the Master of the Rolls continued:
In my judgment
it is clear law that if there is to be a surrender of a joint tenancy, that is
a surrender before its natural termination, then all must agree to the
surrender.
If there is
to be a renewal, which is the position at the end of each period of a periodic
tenancy, then again all must concur. In this case Mrs McGrady made it quite
clear by her notice to quit that she was not content to renew the joint tenancy
on and after June 15 1981. That left Mr McGrady without any tenancy at all.
Thus, in McGrady
the principle that a notice to quit given by one of several joint lessees
under a periodic tenancy brings the tenancy to an end, which had evolved from Doe
d Aslin and Leek & Moorlands, emerged as the ratio of the
decision of this court.
This principle
has been followed and applied in at least three subsequent cases, namely by Mr
Donald Rattee QC, sitting as a deputy judge of the Chancery Division, in Parsons
v Parsons [1983] 1 WLR 1390; by this court in Annen v Rattee
(1984) 273 EG 503 (a licence case) and by this court in Opoku-Forfieh v
Haringey London Borough Council, October 17 1988 (unreported). In the
latter case, which concerned a notice to quit given by one of two joint tenants
under a periodic tenancy, Ralph Gibson LJ, giving the leading judgment, said in
terms that McGrady constituted authority binding the Court of Appeal and
that if the law were to be changed this could require legislative intervention.
On the face of
it, the decision in McGrady is quite clear authority binding this court
to hold that under the general law, in the absence of provision to the contrary
in a tenancy agreement, a notice to quit of proper length, given by one only of
two joint lessees without the authority of the other, has the effect of
bringing a periodic tenancy to an end.
Counsel
appearing for the respective occupiers in the two appeals now before the court
have, however, submitted that McGrady should not be followed in effect
on two grounds, namely:
(a) because it is inconsistent with Howson v
Buxton (supra), a decision which, it is said, is binding on this court
and should be preferred to McGrady; and/or
(b) because it was a decision given per
incuriam, both in ignorance of or failure to advert to both the provisions
of the Law of Property Act 1925 relating to joint tenancies and the true nature
of a periodic tenancy as illustrated by cases such as Gray v Spyer.
I will begin
by considering the first of these two grounds, which was favoured by the
learned judge. This will necessitate a detailed and rather tedious examination
of the decision of this court in Howson v Buxton.
The somewhat
complicated nature of the facts of Howson v Buxton were as
follows. By an agreement of September 29 1917 a farm was let to Mr Walker and
his nephew, Mr Buxton, for a term of one year from March 25 1918 and so on from
year to year determinable at the first or any other year by either party giving
to the other six months’ written notice to quit. Mr Walker had been sole tenant
of the farm for 27 years prior to March 25 1918. As part of the arrangements
under which the joint tenancy was granted to uncle and nephew on the
termination of Mr Walker’s sole tenancy, Mr Buxton paid him a sum of money in
respect of tenant-right compensation and provided the whole of the finance for
carrying on the farm. Mr Walker was made a joint tenant with Mr Buxton at the
request of and for the protection of the landlord. Mr Buxton resided at the
farmhouse on the farm and Mr Walker resided in a cottage belonging to the
landlord not on the demised premises. In the words of Scrutton LJ (at p 752):
Obviously
therefore, the person interested in the tenancy was Buxton, and Walker was
there as a surety for the protection of the landlord.
Some years
later, on February 21 1924, Mr Walker alone gave notice to quit and deliver up
possession of the farm on March 25 1925. The statement of facts in the report
of the case states (at p 750):
This notice which
was admitted to be bad as a notice to quit was given on the alleged ground
that the farm was being badly cultivated.
(Emphasis
added.)
By a notice of
March 21 1924, the landlord’s agent served on both tenants a notice to quit the
farm on March 25 1925. It was stated that this notice was given because at its
date the tenants were not cultivating the farm according to the rules of good
husbandry. The two tenants duly quitted the farm in pursuance of the notice.
Section 12(1)
of the Agricultural Holdings Act 1923, so far as material, provided:
Where the
tenancy of a holding terminates by reason of a notice to quit given by the
landlord, and in consequence of such notice the tenant quits the holding, then,
unless the tenant —
(a) was not at the date of the notice
cultivating the holding according to the rules of good husbandry . . . and
unless the notice to quit states that it is given for one or more of the
reasons aforesaid, compensation for the disturbance shall be payable by the
landlord to the tenant in accordance with the provisions of this section.
Section 12(7),
so far as material, provided:
Compensation
shall not be payable under this section . . .
(b) unless the tenant has, not less than one
month before the termination of the tenancy, given notice in writing to the
landlord of his intention to make a claim for compensation under this section.
An arbitrator
having found that the farm was not cultivated badly, on January 3 1925 a
notice claiming compensation for disturbance under section 12 of the 1923 Act
was served by Mr Buxton on behalf of himself and Mr Walker upon the landlord’s
agent. In due course the arbitrator stated a special case for the opinion of
the county court on two questions, which were in substance (1) whether the
notice of January 3 1925 claiming compensation for disturbance was valid: and
(2) whether the notice to quit of February 21 1924 estopped Mr Buxton from
making that claim.
The Court of
Appeal upheld the decision of the county court judge, who had answered the
first question in the affirmative and the second in the negative. In the course
of summarising the facts, Scrutton LJ, who delivered the leading judgment,
referred to Mr Walker’s notice to quit of February 21 1924 and made this
observation in passing (at p 752):
I personally
take the view that one joint tenant cannot give a notice to terminate the
tenancy unless he does so with the authority of the other joint tenant, and
Walker had not the authority of Buxton to terminate the tenancy.
At the end of
his summary of the facts, Scrutton LJ said (at p 752):
Thereupon
Buxton alone gave a notice of his intention to claim compensation, and the
question which has been argued by the landlord throughout, and has now been
argued before us, is whether one joint tenant, who is the only person who has
in fact suffered damage, can give a notice claiming arbitration and
compensation under the Agricultural Holdings Act 1923, without the concurrence
of the other joint tenant, the other joint tenant having suffered no damage.
That turns on
the construction of the Agricultural Holdings Act 1923.
On this first
issue, Scrutton LJ concluded (at p 754) that having regard to the mischief
which the 1923 Act intended to remedy, the notice of January 3 1925 was on the
true construction of section 12(7) a valid notice. He then turned to the second
issue, which (at p 754) he described as raising the point that ‘when Mr Walker
gave to the landlord notice to quit because the farm was being cultivated
badly, the other joint tenant was in some way estopped from proving that the
farm was not cultivated badly’. In rejecting this argument, he said (at p 754):
. . . it
appears to me that the statement made by one joint tenant, though it
may possibly be evidence — in this case apparently wrong evidence — certainly
is not an estoppel of the other joint tenant in proving, as he did before the
arbitrator, that the farm had been properly cultivated.
Greer LJ
decided the first issue in favour of Mr Buxton, but on a different ground,
namely that Mr Buxton, in serving the notice of January 3 1925, ‘was acting,
and was authorised to act, and did act on behalf of the tenants, who were
himself and Walker’ (see p 754). Having dealt with this first issue, he dealt
with the second issue by simply saying (at p 755): ‘On the other point, which
seems to me to be conclusive, I agree’.
Sankey LJ
began his judgment by referring to the two questions which fell to be decided
by the court. Having accurately identified the first question, he said (at p
755):
The other
question is a question whether the notice to quit, dated February 21 1924,
given by Mr Walker, was a valid notice, and so estopped Mr Buxton from claiming
compensation for unreasonable disturbance. On that question I desire to add
nothing; I agree with what has been said with regard to it. My remarks are in respect
of the notice given by Mr Buxton only.
Sankey LJ
ultimately decided (at p 757) that for the reasons given by Scrutton LJ the
proper construction of the section was the one contended for by Mr Buxton and
that the notice given by him alone was a valid one.
I think it
clear that Sankey LJ’s description of ‘the other question’ referred to by him
was not quite accurate. If the notice to quit given by Mr Walker had been a
valid notice, no questions of estoppel would have arisen. On this footing, no
possible right to compensation under section 12 of the 1923 Act could have
arisen because the tenancy would not have terminated on March 25 1925 by reason
of a notice to quit given by the landlord within the meaning of section
12(1); it would have terminated by reason of Mr Walker’s notice. Questions of
estoppel arose only because, as was stated in the statement of facts (at p
750), the notice to quit given by Mr Walker on February 21 1924 ‘was admitted
to be a bad notice’, but the landlord was contending that the notice
nevertheless estopped Mr Buxton from proving that the farm was not cultivated
badly.
The admission
that that notice was a bad notice must have been an admission by the appellant
landlord. No doubt, in the light of that admission, the summary of the argument
of counsel for the landlord, at p 751 of the report, shows that he was not
seeking to argue that the notice to quit given by Mr Walker on February 21 1924
had been sufficient to determine the tenancy or that his claim against the
landlord failed for that reason. The validity of that notice to quit was not an
issue in the case because its invalidity was conceded.
In these
circumstances it is, in my judgment, plain that the crucial sentence in
Scrutton LJ’s judgment, on which Judge Cooke placed so much reliance,
introduced by the words ‘I personally take the view . . .’, was a mere obiter
dictum. And indeed the very form of that introduction to my mind
constitutes an implicit recognition by Scrutton LJ that this was so. Even if
Sankey LJ, in the passage from his judgment which I have already quoted, must
be read as concurring with this sentence from Scrutton LJ’s judgment, Sankey
LJ’s opinion on this point was likewise expressed obiter.
In dealing
with the decision in Howson v Buxton, Judge Cooke said:
There were
two joint lessees, one of whom gave a tenant’s notice to quit and the other did
not. If that notice had been effective to determine the letting no compensation
would have been payable and the claim would have failed in limine. It is
therefore central to the decision of the court to decide whether the tenant’s
notice to quit was validly given.
On this
approach to the issues in the case, he regarded the sentence in Scrutton LJ’s
judgment at p 752 beginning with the words ‘I personally take the view. . .’
and the two sentences in Sankey LJ’s judgment at p 755 beginning with the words
‘The other question . . .’ (incorrectly transcribed in Judge Cooke’s judgment
as ‘the only question’) as together constituting binding authority for the
proposition that one of two joint tenants under a periodic tenancy cannot
without the authority of the other give a notice determining a joint tenancy.
For the
reasons given, I respectfully disagree with this conclusion. They do not, in my
view, constitute any such binding authority. Howson v Buxton is
not a decision which entitled the learned judge, or entitles this court, to
decline to follow McGrady.
I now turn to
consider whether the McGrady decision was given per incuriam. We
have had the benefit of very full and detailed arguments to this effect
addressed to us by counsel for the tenants in both appeals. These arguments
were in part based on the submission that Howson v Buxton was not
cited in argument to the Court of Appeal in Leek & Moorlands or in McGrady
and was binding on the court in both those cases. We cannot tell from the
report of McGrady whether Howson v Buxton was cited in
argument. However, since the relevant dicta of the court in the latter case
were obiter, a failure to cite it in argument could not itself have
rendered the McGrady decision per incuriam.
The rest of
the submissions of counsel for the tenants in this context have been largely
based on some further cogent criticisms of the McGrady decision
contained in a long and learned article by Mr Frank Webb in [1983] 47 Conv
194-210. I hope that I will do no injustice to the points made if I summarise
their principal features fairly briefly.
Sir John
Donaldson MR in McGrady did not think it necessary to examine the case
law in detail because he thought that the law could for practical purposes be
taken from the decision of this court in Leek & Moorlands. However,
in that case the nature of a periodic tenancy was not in issue and the relevant
dicta of Somervell LJ were no more than obiter dicta. Furthermore, they
were, it was said, based on two fundamental misconceptions, first as to what
was decided in the 19th-century cases, and second as to the nature of a
periodic tenancy. The 19th-century cases and in particular Doe d Aslin,
it was submitted, are based on reasoning which, even if correct in law at the
time, is not applicable following the enactment of the Law of Property Act 1925
which, by sections 34 and 36, now makes it impossible for undivided shares to
exist in a legal estate in land, such as a lease, and requires that such shares
shall subsist merely as equitable interests behind a trust for sale.
Close analysis
of Doe d Aslin, it was said, shows that its ratio was that as a notice
to quit by one joint landlord would be effective to end the tenancy of his
severable share, either the tenant or the other landlords could, on the service
of such notice, treat the tenancy as totally at an end. It was submitted that
the reasoning of that decision was wrong, or at least suspect, even under the
pre-1926 law, but certainly could not apply since 1925, when a lease by joint
landlords is unquestionably one joint grant and not a set of separate grants.
Thus, it was said, the statement in Doe d Aslin that ‘the tenant holds
the whole of all so long as he and all shall please’, to which Somervell LJ and
subsequently Sir John Donaldson MR attached such importance, is based on
reasoning which, if it was ever correct, cannot apply since 1925.
Somervell LJ
in Leek & Moorlands, in holding that rights held jointly can only be
surrendered jointly, distinguished Doe d Aslin not on these grounds but
on the grounds that that decision had established a principle applicable to
notices to quit under a periodic tenancy given by either one joint landlord or
one joint tenant, but not to surrenders or break notices. The principle was
that service of a notice to quit under a periodic tenancy was equivalent to the
failure to exercise an option to renew. As Somervell LJ accepted, the exercise
of an option to renew undoubtedly has to be a joint act. A positive act is
required to cause the new tenancy to arise. Similarly, with a surrender or a
break notice, a joint positive act is needed to cause the tenancy to terminate.
It was submitted, however, that Somervell LJ (whose reasoning was subsequently
adopted by the court in McGrady) erred in drawing the analogy between a
notice to quit a periodic tenancy and an option to renew. The true analogy, it
was submitted, is between a notice to quit under a periodic tenancy and a
notice taking advantage of a ‘break’ clause. So far as appears from the
reports, the line of cases exemplified by Gray v Spyer was not
drawn to the attention of the court either in Leek & Moorlands or in
McGrady. This, it was submitted, led both courts to misinterpret the
nature of a periodic tenancy and to overlook the fact that a periodic tenancy
continues indefinitely from the time of the original grant unless and until it
is determined by a notice to quit and that in the eyes of the law there is not
a notional reletting at the commencement of each new period.
I was
impressed by at least some of these submissions, in particular the submission
that the true analogy is between a notice to quit and a notice taking advantage
of a break clause. It is common ground that under the general law a notice
taking advantage of a ‘break’ clause during the currency of the fixed term of a
lease has to be given by both tenants if it is to be effective. In these
circumstances it is not perhaps at first sight entirely easy to rationalise a
rule which in contrast provides that a notice to quit, given during the
currency of a periodic tenancy by one lessee only, will suffice to determine
the tenancy (which, in default of the notice, would continue indefinitely until
properly determined by a subsequent notice). Such a rule will enable one of the
two joint lessees, who by virtue of the Law of Property Act 1925 notionally
hold the lease as trustees, effectively to destroy this trust asset without the
consent of the other. No one doubts that an ordinary disposition of this
asset (eg by sale) would require the consent of both trustees.
Nevertheless,
there are strict limits to the circumstances in which a decision of this court
may be held to have been given per incuriam. In Rickards v Rickards
[1989] 3 WLR 748 at p 755 Lord Donaldson of Lymington MR (in a statement
cited more recently by Russell LJ in Rakhit v Carty [1990] 2 WLR
1107* at p 1114) said:
The
importance of the rule of stare decisis in relation to the Court of Appeal’s
own decisions can hardly be overstated. We now sometimes sit in eight divisions
and, in the absence of such a rule, the law would quickly become wholly
uncertain. However the rule is not without exceptions, albeit very limited.
These exceptions were considered in Young v Bristol Aeroplane Co Ltd [1944]
KB 718; Morelle Ltd v Wakeling [1955] 2 QB 379 and, more
recently, in Williams v Fawcett [1986] QB 604, relevant extracts
from the two earlier decisions being set out at pp 615-616 of the report. These
decisions show that this court is justified in refusing to follow one of its
own previous decisions not only where that decision is given in ignorance or
forgetfulness of some inconsistent statutory provision or some authority
binding upon it, but also, in rare and exceptional cases, if it is satisfied
that the decision involved a manifest slip or error. In previous cases the
judges of this court have always refrained from defining this exceptional
category and I have no intention of departing from that approach save to echo the
words of Lord Greene MR in Young’s case, p 729, and Sir Raymond Evershed MR in Morelle’s
case, p 406, and to say that they will be of the rarest occurrence.
*Editor’s
note: Also reported at [1990] 2 EGLR 95.
In Duke v
Reliance Systems Ltd [1988] QB 108 the Master of the Rolls, with whose
judgment Ralph Gibson LJ and Bingham LJ agreed, said this (at p 113):
I have always
understood that the doctrine of per incuriam only applies where another
division of this court has reached a decision in the absence of knowledge of a
decision binding upon it or a statute, and that in either case it has to be
shown that, had the court had this material, it must have reached a
contrary decision. That is per incuriam. I do not understand the
doctrine to extend to a case where, if different arguments had been placed
before it or if different material had been placed before it, it might have
reached a different conclusion.
As I have
already indicated, we do not know what authorities were cited to this court in McGrady
or what arguments were addressed to it. However, whatever course those
arguments took, I am certainly not prepared to assume that the members of the
court did not have in mind either the relevant effect of the Law of Property
Act 1925 or that the relevant dicta of Somervell LJ in Leek & Moorlands were
obiter. The court in McGrady was, in my judgment, faced with a
general question of law as to which there was no binding authority, so that it
was free to decide this question either way. That question concerned the
relationship of lessor on the one side and joint lessees on the other under a
periodic tenancy. Though I have indicated certain considerations which might
point to a different conclusion, it was, in my opinion, open to the court to
take the view that if, by way of a joint enterprise, two or more persons enter
into a tenancy agreement as joint lessees, it is inherent in the nature of the
arrangement that, unless the contrary is expressly agreed, the arrangement will
continue only so long as both lessees wish it to do so; and that
correspondingly vis-a-vis the landlord either lessee will have the right
to determine the tenancy on proper notice, even though his co-lessee might
conceivably have a claim against him for breach of trust in the event of such
unilateral notice being given — see Parsons v Parsons [1983] 1
WLR 1390 at p 1400B-D; and that the landlord will correspondingly have the
right to accept such notice. It should be observed that acceptance of the
contrary view would mean that one joint lessee under a periodic tenancy, even
as short as a weekly tenancy, could find himself or herself exposed to
obligations to pay rent and to perform the other tenant’s obligations for an
indefinite period of time unless he or she could persuade the other lessee to
join in serving a notice to quit.
There is much
to be said on both sides, but I am not persuaded that the members of the court
in McGrady necessarily would have come to a different decision, even if
all the authorities cited and all the arguments addressed to this court had
been drawn to their attention, though I accept that this is a possibility.
Accordingly,
in my judgment, McGrady cannot be regarded as a decision given per
incuriam. As from its delivery on November 22 1982 it constituted binding
authority for the proposition that under the general law, in the absence of
provision to the contrary in a tenancy agreement, a notice to quit given by one
only of joint lessees under a periodic tenancy without the authority of the
other will have the effect of bringing the tenancy to an end, whatever personal
rights or remedies such other lessee may possess against the lessee serving the
notice.
In the present
case, in my judgment, the parties to the tenancy agreement entered into in the
summer of 1987 must be deemed to have done so in the knowledge that this was
the state of the general law as established by Court of Appeal authority. The
only provision of this agreement which might arguably be said to have the effect
of negativing the general law is clause 3(t) quoted above. It is submitted on
behalf of Mr Monk that this subclause, coupled with the statement on the front
page of the agreement that ‘if you are joint tenants the term ‘tenant’ refers
to both tenants or all of you’ negatived the right of either tenant acting on
his or her own to serve a notice to quit and correspondingly the right of the
lessor council to accept such a notice.
The point of
construction is a short one but I cannot, for my part, accept this submission.
In my judgment, clause 3(t), like the other provisions of clause 3, was simply
directed to specifying obligations of the two tenants vis-a-vis the
lessor council. It was not intended to confer rights on the tenants vis-a-vis
the council — they had their ordinary rights to determine the tenancy under the
general law — or to regulate their rights inter se. It was merely
intended to make it clear that the council was entitled to expect that any
notice served on them purporting to terminate the tenancy should be of at least
four weeks’ duration and should expire on a Monday. In my judgment, clause 3(t)
cannot in its context properly be read as making it obligatory that both
tenants should serve any such notice — it was not directed to the question who
should serve the notice — or as negativing the position under the general law
which had been clearly established by McGrady. The decision in Re
Viola’s Indenture of Lease [1909] 1 Ch 244, which concerned the
construction of a ‘break’ clause in a lease which entitled the ‘lessees’ to
determine it by notice, though relied on by the learned judge, does not, in my
opinion, assist Mr Monk’s argument on the construction of the particular
tenancy agreement now under consideration.
For the
reasons stated, I would allow this appeal. I would set aside the judge’s order
and make an order granting the council possession of the flat.
BARNET LONDON
BOROUGH COUNCIL v SMITH
In the second
of the two appeals before the court Mr James Martin Smith appeals from an order
made on June 5 1990 in Barnet County Court by Mr A A Goymer, sitting as an
assistant recorder, whereby he dismissed Mr Smith’s appeal against an order of
the registrar dated January 31 1990 refusing to set aside an order for
possession of a council house known as 119 Alexandra Road, Muswell Hill, London
N10 (‘the house’).
The facts of
the case were as follows. On January 21 1985, Mr Smith and his wife, Mrs Tina
Glenys Smith, entered into a tenancy agreement with the Barnet London Borough
Council (the respondents to this appeal and in this judgment called ‘Barnet
Council’) under which they agreed to take a weekly tenancy of the house from
Barnet Council with January 28 1985 as its commencement date. The agreement was
in a standard printed form of tenancy agreement, with the names of the tenants
and of the premises and the tenancy commencement date inserted in manuscript.
After naming the parties and identifying the demised premises, it said:
If two or
more people are included in the expression ‘the Tenant’ it refers to both or
all of them.
There then
followed section A headed ‘Letting of the Property’, section B headed
‘Obligations of the Council’ and section C headed ‘Obligations of the Tenant’.
The agreement used the expression ‘tenant’ in the singular throughout. Clause 5
of section C provided for the tenant to pay the rent weekly in advance. Clause
18 of section C provided:
The Tenant
may end the tenancy on a Monday in any week by giving the Council four weeks’
previous written notice.
On September
11 1989 Mrs Smith gave Barnet Council a notice in the following form:
I hereby give
notice to terminate the tenancy of 119 Alexandra Road, Muswell Hill, London N10
giving 28 days notice as from September 11 1989.
Mr Smith, who
had not authorised the service of this notice and had no knowledge of it,
remained in the house.
On November 14
1989 Barnet Council issued proceedings seeking possession of the house as
against Mr and Mrs Smith, relying on Mrs Smith’s notice to quit. On January 31
1990 the registrar ordered that possession should be given on February 28 1990.
Mr Smith appealed from that order. By his order of June 5 1990 the assistant
recorder dismissed that appeal, but further suspended the order for possession
(which had already been suspended) pending the hearing of the appeal by this
court.
In his
succinct judgment, the assistant recorder accepted Barnet Council’s submission
that he was bound by McGrady to hold that the notice to quit was valid.
He rejected an argument advanced on behalf of Mr Smith by reference to Mr
Webb’s article in The Conveyancer, referred to above, to the effect that
McGrady had been decided per incuriam. It appears that it was not
argued that the particular terms of the tenancy agreement on their true
construction required that a notice terminating the tenancy had to be signed by
both tenants if it was to be effective. Though this point was not taken in the
court below and not taken explicitly in Mr Smith’s notice of appeal, we have
allowed it to be taken in this court.
For the
reasons which I have stated in regard to the other appeal, the submission that
the decision in McGrady was given per incuriam is, in my
judgment, ill-founded. We are therefore left with the question of construction.
I think that
the arguments available to Mr Smith on this question are a little stronger than
those which were available to Mr Monk. In the instant case, the relevant clause
(clause 18) does appear in form to be drafted so as to confer a right on ‘the
tenant’ to end the tenancy on a Monday in any week by giving the council four
weeks’ previous notice; and the opening provisions of the agreement state that
‘if two or more people are included in the expression ‘the tenant’ it refers to
both or all of them.’ On the face of it
the case is thus rather closer to Re Viola’s Indenture of Lease.
Nevertheless, once again the parties must be deemed to have entered into the
tenancy agreement in the knowledge that under the general law, in view of McGrady,
either tenant would have the right to serve a notice to quit without the
consent of the other. In my judgment, clause 18 cannot be read as evincing a
sufficiently clear intention of the parties to depart from this position.
Though, as I have said, the clause is in form drafted so as to confer a right
on ‘the tenant’, the very nature of the tenancy as a weekly tenancy meant that
it could be determined by either side on proper notice. Clause 18 is included
in a section of the agreement headed ‘Obligations of Tenant’ and forms part of
a series of clauses (5 to 20) which impose duty obligations on ‘the tenant’.
Though I see the force of the argument to the contrary, in my judgment clause
18 in its context should be read in the same sense as clause 3(t) of the
tenancy agreement in the other appeal, namely as conferring no rights on the
tenants beyond those conferred by the general law and doing no more than making
it clear that the lessor was entitled to expect that any notice served on it
purporting to terminate the tenancy should be of at least four weeks’ duration
and should expire on a Monday. Clause 18 cannot, I think, be properly read in
its context as making it obligatory that both tenants should serve any such
notice if the tenancy was to be effectively determined; it was not directed to
the question who should serve the notice or to negativing the position under
the general law which had been established more than two years before by the
decision of this court in McGrady.
For these
reasons, I think that the assistant recorder reached the right conclusion and I
would dismiss this appeal.
Agreeing, NICHOLLS
LJ said: The framework within which these appeals fall to be decided
comprises two legal principles, neither of which is in dispute. The first
principle is that, at common law, when a lease expires or is determined any
renewal requires the concurrence of all concerned. If, as frequently occurs,
the lessor comprises two or more persons, both or all of the joint lessors must
concur. Similarly if the lessee comprises two or more persons. If one of the
joint lessors, or one of the joint lessees, refuses to agree, that is, in
principle, fatal to the renewal of the lease at common law.
The second
relevant principle is this. Leases commonly contain a break clause, giving one
party or the other an option, or right, to end the lease before it has run its
full term. When a break option is granted to joint lessors or to joint lessees,
prima facie the exercise of the option requires the concurrence of all
the joint lessors or joint lessees as the case may be. The principle is that, unless
otherwise agreed expressly or by necessary implication, the exercise of a right
conferred by a lease on persons jointly requires the positive concurrence of
all those to whom the right was jointly given.
The primary
question raised by these appeals is how these two principles fall to be applied
to a notice to quit given by joint lessors or joint lessees of a periodic
tenancy. At first sight the comparison between such a notice to quit and a
break clause is compelling. A periodic tenancy is not a succession of
relettings, period by period. A periodic tenancy is a single letting which
continues until it is terminated (Gandy v Jubber (1864) 5 B&S
78). A notice to quit determines a tenancy which otherwise would have
continued, in the same way as a notice given pursuant to a break clause brings
to an end a lease for a term of years.
There is much
to be said for this approach. But for over 150 years the courts have adopted a
different approach, not without its own rational basis. The alternative
approach is founded on a particular view of the effect of a periodic tenancy
when granted by persons holding their estates as joint tenants. Although a
periodic tenancy is one entire letting of indefinite duration, it is a letting
which continues, from period to period, only so long as both parties shall
please. The view which has been adopted by the courts is that this means that,
where there are joint lessors or joint lessees holding as joint tenants all must
concur in the continuation of a periodic tenancy. Such concurrence is assumed
unless due notice of dissent is given by any person whose concurrence would
have been required for a renewal. If due notice of dissent (namely a notice to
quit) is given by any one such person, the tenancy does not continue into the next
period. Thus if there are joint lessors, notice of dissent by any of them
precludes the continuation of the tenancy. Likewise if there are joint lessees.
Only if there is no dissent will the tenancy go on. Thus service of a notice to
quit in such cases has been equated to refusal to agree to a renewal.
Before turning
to the authorities I should make two introductory points. First, to understand
the old authorities it is necessary to keep in mind that before 1926 undivided
shares in land existed at law as well as in equity. Joint lessors could hold
either as tenants in common or as joint tenants. It is important to have this
in mind because a distinction was drawn between the legal effect of a lease
granted by tenants in common, each owning an individed share in the land, on
the one hand and a lease granted by joint lessors holding under a joint tenancy
on the other hand. Today, of course, joint lessors can hold the legal estate
only as joint tenants. Thus it is with the law relating to joint lessors and joint
lessees who hold their estates as joint tenants that these appeals are
concerned.
The second
preliminary observation is that, to avoid confusion, throughout this judgment I
shall use the expressions ‘joint lessors’ and ‘joint lessees’. I shall use the
phrase ‘joint tenants’ only when referring to the estate held by co-owners and
it is necessary to distinguish between a joint tenancy and a tenancy in common.
Doe d
Aslin v Summersett
The relevant
authorities are few in number. I can start in 1830. In Doe d Aslin v Summersett
(1830) 1 B & Ad 135 the court of King’s Bench reviewed the earlier
authorities. The question before the court concerned the effectiveness of a
notice to quit signed by one of two joint lessors. Lord Tenterden CJ delivered
the reserved judgment of the court. Central to his exposition of why a notice
to quit given by one of two joint lessors holding as joint tenants did not
operate merely to determine the tenancy so far as his share was concerned was
Lord Tenterden’s appraisal of ‘the true character’ of a tenancy from year to
year in such cases. He stated (at p 140) that ‘the true character’ of a tenancy
from year to year granted by joint lessors is that ‘the tenant holds the whole
of all so long as he and all shall please, and as soon as any one of the
joint-tenants gives a notice to quit he effectually puts an end to that
tenancy’. The material passage reads:
. . . But,
though upon a joint lease by joint-tenants each demises his own share, this is
not the only operation of such a lease. Joint-tenants are seised not only of
their respective shares, per my, but also of the entirety, per tout; Litt s 288
. . . Upon a joint demise by joint-tenants upon a tenancy from year to year,
the true character of the tenancy is this, not that the tenant holds of each
the share of each so long as he and each shall please, but that he holds the
whole of all so long as he and all shall please; and as soon as any one of the
joint-tenants gives a notice to quit, he effectually puts an end to that
tenancy . . .
Evaluation of
this decision is not easy for modern lawyers because the reasoning is based on
some very ancient technicalities of the law
decision that, unless otherwise agreed, service of a notice to quit by one of
several joint lessors whose legal estate is that of joint tenants operates to
determine the whole lease. The case was so understood at the time. In Doe d
Kindersley v Hughes (1840) 7 M & W 139 one of the issues
concerned the validity of a notice to quit given by an agent authorised by one
of three joint lessors. Parke B said (at p 141):
Here the
party was previously authorized by one of the trustees: That is the same as if
that trustee had given the notice: and Doe d Aslin v Summersett (1
B & Ad 135), is an express authority that a notice to quit by one of
several joint-tenants, purporting to be given on behalf of them all, is good
for all, because the tenant holds the premises only so long as he and they all
shall agree.
In that case
the joint lessors were not beneficial co-owners: the property was held by them
as trustees for the benefit of a Miss Shipley. In 1842, in Alford v Vickery
(1842) Car & M 280, Coleridge J also applied the principle expounded by
Lord Tenterden in Doe v Summersett in the case of a notice to
quit given by three of four joint lessors who held land as joint tenants as
trustees of a local charity.
In Platt on
Leases, published in 1847, the law regarding joint lessors was summarised
thus: tenants in common are considered as holding separate interests, the only
unity between them being that of possession. If all of several tenants in
common concur in one lease, the lease will operate as ‘the distinct demise of
each tenant of his part, and not as the joint demise of all’ (p 131). By way of
contrast is the anomalous position of joint lessors whose estate is that of
joint tenants (p 124):
Joint-tenants,
holding (according to the technical phrase) per my et per tout, enjoy a
singular and anomalous species of tenure. During their joint ownership they
constitute but one tenant of the whole land, and are then said to be seised per
tout; but, for the purposes of alienation, each has an exclusive right to and
dominion over a moiety; and in this sense, adopting Lord Coke’s exposition,
which is more simple and intelligible than Littleton’s, or Blackstone’s, must
be understood the expression that joint-tenants are seised or possessed per my.
The Summersett
case and the decision of Mansfield CJ in Doe d Whayman v Chaplin (1810)
3 Taunt 120 are then cited as authority for the following propositions (at p
126):
Though the
title as well as the estate of joint-tenants is undivided, yet each has his own
particular portion. Their joint demise operates to a certain extent as a demise
by each of his share; and, therefore, one of several joint-tenants who had
joined in a demise from year to year, on giving due notice to quit, may recover
his several share in ejectment on his several demise, without the concurrence
of his co-tenants. But the true character of a tenancy from year to year under
a joint demise by joint-tenants is not that the tenant holds of each the share
of each so long as he and each shall please, but that he holds the whole of all
so long as he and all shall please. It is competent, therefore, to either of
the lessors to put an end to the tenancy as to the whole; and an ejectment may
be maintained on the joint demise of all the lessors, though the notice to quit
be given by one of them only.
So far as the
reported decisions go, that view of the law seems never thereafter to have been
challenged in any case, apart from one dictum by Scrutton LJ in Howson v
Buxton (1928) 97 LJKB 749. I agree with Slade LJ’s observations on that
case. Throughout the 19th century and subsequently the Summersett principle,
if I can so describe it, was set forth as representing the law, even if on
occasion this was accompanied by a note of caution. For instance, in an early
edition of Woodfall on Landlord and Tenant (2nd ed 1834), the editor (at
p 236) stated the Summersett principle, adding ‘but a notice to quit by
joint tenants had better be signed by all the joint tenants’. Likewise in the
first edition (1911) of Halsbury’s Laws of England, vol 18, p 452, the
proposition in the text was that ‘where the demise is by joint tenants, one may
give notice on behalf of all, but this doctrine is confined to a common law
notice to quit’, but a footnote was appended: ‘It is not, perhaps, finally
settled that it is unnecessary to prove the authority of the other joint
tenants.’
The law having
stood thus for 160 years, in a field where much importance is to be attached to
the existence of a clear rule, for my part I think this court should be very
slow indeed to venture upon a reappraisal of the Summersett principle.
On these two
appeals the defendant tenants, being the tenants who did not concur in giving
notice to quit, submitted that, whatever may have been the true view of the law
before 1926, the Summersett principle did not survive the 1925 property
legislation. Tenancies in common can no longer exist as legal estates in land,
and a joint tenancy of a legal estate cannot be severed so as to create a legal
tenancy in common: see sections 34 and 36 of the Law of Property Act 1925.
Thus, so the argument runs, the mischief which caused Lord Tenterden to hold
that a notice to quit served by one joint lessor ended the whole lease no
longer exists. Unlike in 1830, a notice served by one joint lessor would not
operate now to terminate the lease as to the share of the joint lessor who gave
the notice.
I am not
greatly impressed with this argument. By 1925 the Summersett principle
had been in place and, no doubt, in operation unchallenged for nearly a
century. The underlying rationale of the principle, based on the true character
of periodic tenancy granted by joint tenants, was unaffected by the 1925
property legislation. I recognise that after 1925, and leaving aside settled
land, joint lessors and joint lessees will invariably hold the reversion or
lease in question as trustees for sale, and that, in general, action by
trustees requires unanimity. But, as already noted, the Summersett principle
was applied by the court before 1926 to joint lessors who were trustees as well
as to joint lessors who were beneficial co-owners. Trust law was not regarded
as impinging on the validity, as between landlord and tenant, of a notice to
quit not given by all the joint lessors. The explanation for this may be that,
as all must concur if a periodic tenancy is to continue, one of several
trustees can withhold his consent from a continuation just as much as he can
withhold his consent from any other proposed trust transaction. Service of a
notice to quit is the means by which a trustee communicates his refusal to
agree. Furthermore, so far as I am aware, no suggestion was ever made by anyone
that the 1925 property legislation might have had the effect now suggested
before Mr Frank Webb’s valuable article appeared in [1983] 47 Conv 194.
Per
incuriam
I have
considered these criticisms of the Summersett principle because of the
argument advanced that decisions of this court, on the very point which arises
on these appeals, are not binding because they were decided per incuriam.
I am unable to accept this argument. In Greenwich London Borough Council v
McGrady (1982) 81 LGR 288, Sir John Donaldson MR applied the reasoning
of Somervell LJ, delivering the judgment of this court, in Leek &
Moorlands Building Society v Clark [1952] 2 QB 788. I do not think
there can be any question of characterising Somervell LJ’s approval of the Summersett
principle, or the Master of the Rolls’ subsequent adoption of Somervell
LJ’s observations, as a ‘manifest slip or error’, so that in consequence the McGrady
case is to be regarded as having been decided per incuriam and
therefore not binding on this court: see Rickards v Rickards [1989]
3 WLR 748, at p 755. I do not accept the criticism that the court in the Leek
and McGrady cases misunderstood the continuing nature of a periodic
tenancy. It is clear that in the Leek case the court accepted Lord
Tenterden’s analysis of the ‘true character’ of a periodic tenancy granted by
joint tenants. In doing so they adopted one of two different possible analyses
of the effect of such a tenancy. That was their view. The fact that, as with
many legal points, there is something to be said for another, alternative, view
does not mean that their view was a manifest error. Having adopted Lord
Tenterden’s approach, the court in the Leek case was surely right to
consider that the Summersett principle was equally applicable to a case
of joint lessees. The underlying rationale, that a periodic tenancy granted by
joint tenants continues only so long as all shall please, dictates that the
same answer shall be given in respect of a notice to quit served by one of
several joint lessees as in respect of a notice to quit served by one of
several joint lessors. Somervell LJ said (at p 793):
If one
considers a lease to joint lessees for a term certain with a right of renewal,
it would be obvious, we think, that both must join in requiring a renewal. A
periodic tenancy renews itself unless either side brings it to an end. But if
one of two or more joint lessees does not desire it to continue, we would have
thought that it was in accordance with Lord Tenterden’s principle, and with
common sense, that he should be able to make that effective.
Subsequently,
in the McGrady case, this court adopted that approach. That is a binding
decision on this point.
The two
tenancy agreements
Once it is
accepted that the Summersett principle is applicable today to a notice
to quit given by one of two joint lessees unless displaced by contrary
agreement, the instant appeals present no difficulty. In both cases there is an
express provision in the written tenancy agreements, concerning termination of
the tenancies. In each case, as one would expect, the two joint lessees fall
within the expression ‘the tenant’. In the Barnet case, clause 20
provides that ‘the tenant may end the tenancy on a Monday in any week by giving
the Council four weeks’ previous written notice.’ In the
weeks’ notice (or such lesser period as the Council has agreed to accept), to
expire on a Monday, when giving up the tenancy.’ I think that in each case the termination
clause is directed exclusively at the length of notice required, and the need
for the notice to expire on a Monday and to be in writing. I do not think that,
in either case, the clause was aimed at regulating, one way or the other, what
was to be the position regarding who could give a notice to quit in those cases
where ‘the tenant’ comprised two or more persons. On that question the tenancy
agreements are silent. The ordinary rule applies.
Some argument
was advanced to us on the consequences for couples living together in local
authority housing if the contentions of these two local authorities were
upheld. We were told that when one partner, frequently the wife and often with
young children, chooses or is compelled to leave a house or flat provided by
the local authority, it is the practice of at least some local authorities to
require the partner who has left the accommodation to give notice terminating
the jointly held tenancy as a prelude to rehousing her. Thus, it was said, the
man sometimes finds himself, without any fault on his part, losing his home as
well as his wife and his children. He may well not have a priority need for rehousing.
Against this it was argued that, with limited housing facilities available to
local authorities, it is undesirable that the man should continue indefinitely
to occupy accommodation in excess of his reasonable requirements. Arguments
such as these can have no place in the present case. The point at issue applies
to all periodic tenancies, to joint lessors as well as joint lessees, and to
all types of property: agricultural and business property as much as
residential property. Considerations peculiar to tenants of local authority
housing really cannot carry weight in the circumstances.
But the Summersett
principle does have one unsatisfactory consequence of general application.
The present cases are good illustrations of this. If one read the two tenancy
agreements and applied ordinary canons of construction but without having the Summersett
principle in mind, one would not understand from the terms of the
agreements that an effective notice to quit could be given by one of two joint
lessees. It is only when the reader has the Summersett principle in mind
that the agreements would be read in that way. Plainly this is not
satisfactory. In the present cases the local authorities have sought to set out
the parties’ respective rights and obligations in a simple written form. But
unless he had by his elbow a lawyer skilled in the law of landlord and tenant,
or at least a comprehensive textbook on that subject, a tenant who read the
form and then signed it would not appreciate that an effective notice to quit
could be given by one of two joint lessees acting contrary to the wishes of the
other. In the case of local authorities, this is a matter which can be resolved
easily by their making suitable amendments to their forms of tenancy agreement
or the accompanying literature. Whether the somewhat technical Summersett principle
itself calls for reform is not a matter on which this court has sufficient
information to express a view. I, too, would dismiss the defendant’s appeal in
the Barnet case and allow the local authority’s appeal in the Hammersmith
and Fulham case.
BINGHAM LJ also agreed and did not add anything.
The first
appeal was allowed and the order below set aside, possession being granted to
the council of the ground-floor flat at 35 Niton Street, London SW6. The second
appeal was dismissed. Applications for leave to appeal to the House of Lords
were refused but provision was made for staying possession orders in the event
of petitions to the House. No order was made for costs except for legal aid
taxation for the respondent in the first case and the appellant in the second
case.
