Landlord and tenant — Notice to quit business premises — Validity of notice — Date of expiry — Written notice in accordance with provisions of lease — Lease provided for determination ‘by giving to the tenant not less than three months’ previous notice in writing expiring at any time’ — Plaintiff landlords gave a notice, stated to be in accordance with the terms of the lease, requiring the tenants ‘to vacate the said premises within a period of three months from the date of service of this notice’ — Tenants contended that the notice was invalid as the period which it allowed was shorter than the lease required, ‘within a period of three months’ being shorter than ‘not less than three months’ — Tenants accepted that a notice requiring the tenants to leave by or at midnight on the relevant date would have been a good notice, but they argued that the words used excluded the stroke of that midnight — ‘The tenant contends that the import of the word ‘within’ is that there is to be some outside wall of time, however thin, on the near side of midnight’ (per Nourse LJ) — Held, affirming the decision of the deputy judge under appeal, that the notice to quit was valid — The word ‘within’, used in the context of a period of time, was capable of meaning ‘before or at the expiry of’ that period; it is not necessarily shorter than the period itself — To construe the wording of the present notice as connoting a period of less than three months would be to strain the language in a hair-splitting and wholly artificial manner — Appeal dismissed
This was an
appeal by tenants in the nature of a test case from a decision of Mr John
Peppitt QC, sitting in chambers as a deputy judge of the Queen’s Bench
Division. The tenants, Le Vitas Travel Agency & Consultancy Services Ltd,
appealed against a decision that the respondent landlords, Manorlike Ltd, were
entitled to possession of shop premises in Oxford Walk, 150/154 Oxford Street,
London W1. The appellants’ case was one of 11 which turned upon the same point
as to the validity of a notice to quit.
Michael Rich
QC and David Smith (instructed by B Dave & Co) appeared on behalf of the
appellants; David Oliver (instructed by Jaques & Lewis) represented the
respondents.
Giving
judgment, KERR LJ said: This is an appeal by the defendant, Le Vitas Travel
Agency & Consultancy Services Ltd, against a judgment given by Mr John
Peppitt QC, sitting as a deputy judge of the Queen’s Bench Division on December
17 1985. The effect of his judgment was that the plaintiff company, Manorlike
Ltd, were entitled to possession of a shop unit or business premises off Oxford
Street in London.
The action
originally concerned, I think, some 17 claims for possession by the plaintiff
landlords against various tenants in a shopping arcade or precinct off Oxford
Street. In six of those cases there was a point which does not arise in the
other 11 concerning the purposes for which the landlords required the tenants
to vacate the premises. All 17 cases came before a deputy master for possession
under Order 14, and he gave unconditional leave to defend in the six cases to
which I have referred. These raised an arguable point as to whether the
landlords were entitled to possession under a break clause in the leases having
regard to their plans for dealing with these premises and the reasons given in
the notices to quit. He made an order for possession in the other 11 cases.
There was an
appeal to Mr Peppitt QC sitting as judge in chambers. In all 17 cases a new
short point was then raised on behalf of the tenants. He affirmed the order of
the master that the plaintiffs were nevertheless entitled to possession in the
11 cases, having dismissed the claims for possession in the other six.
The present
appeal is in the nature of a test case of the remaining 11 cases which turns
solely on whether or not the notice to quit was adequate in terms of time,
having regard to the provisions of the lease.
The point is
as follows. The lease excluded the provisions of section 38(4) of the Landlord
and Tenant Act 1954 (as amended) and the tenant agreed, pursuant to an order of
the court, that the provisions of sections 24 to 28 of that Act should also be
excluded. The tenancy was for a period of three years from May 9 1984, but it
contained a break clause, clause 7, on which the validity of the notice to quit
turns. Clause 7 was as follows, so far as material:
If the
Landlord requires possession of the demised premises at any time during the
said term the Landlord shall have the right to determine this Lease by giving
to the Tenant not less than 3 months’ previous notice in writing expiring at
any time so as to determine the same . . .
On May 22 1985
the plaintiff landlords gave a notice of which the relevant terms are as
follows:
We . . .
hereby give you notice that we require possession of the above-demised
premises,
and then I
leave out the reasons given, because they are irrelevant. The notice proceeds
as follows:
and in
accordance therewith
that is a
reference to clause 7 of the lease
we require
you to vacate the said premises within a period of three months from the date
of service of this notice.
Effectively
the issue is whether a requirement to vacate the premises ‘within a period of
three months’ is a shorter period than the period of notice for which the
tenant was entitled under clause 7, which was a period of ‘not less than 3
months’ previous notice’. In that connection it is common ground that the
notice given on May 22 1985 expired at midnight on August 22-23 1985.
On behalf of
the appellant tenant, Mr Rich submitted that there is a material difference
between the words ‘not less than’ and the word ‘within’ when used in the
context of a period of time, in this case three months. In that connection he
referred us to sections 29(3) and 26(6) of the Landlord and Tenant Act 1954 and
relied upon those provisions in order to seek to show that these words have a different
meaning in that Act. For myself, I derive no assistance from the true
construction of that Act, even after being reminded of the decision of this
court in E J Riley Investments Ltd v Eurostile Holdings Ltd
[1985] 1 WLR 1139*, to which Mr Rich also referred. I would add for myself that
anything said about the true construction of the present notice to quit in
relation to the present lease is not intended to have any bearing on the
meaning and effect of any of these provisions in the 1954 Act.
*Editor’s
Note: Also reported at [1985] 2 EGLR 124; (1985) 275 EG 716.
Mr Rich
accepted (I think rightly) that if this notice had required the tenants to
leave the premises by or at midnight on August 22-23 it would have been a good
notice. He referred us to a number of cases, including one on which the judge
relied — Eastaugh v Macpherson [1954] 3 All ER 214 — in which it
was held that a requirement to vacate by a certain date means on or before that
date and therefore includes the last day.
It is clear
that the tenant was entitled to a period which included the stroke of midnight
of August 22-23 because he was entitled to not less than three months’ notice.
We were referred in that connection to Lester v Garland (1808) 15
Ves Jun 248 and Page v More (1850) QB 684. It is also clear, and
was not disputed by Mr Rich, that the moment at which the tenants’ right to
remain in the premises ended must be precisely coterminous with the moment at
which the landlords’ right to resume possession began. It is for all those
reasons that Mr Rich conceded that a notice expiring precisely at midnight on
August 22-23 would have been a good notice.
Accordingly,
all that one is left with is the question whether the words used in this
notice, to vacate the premises ‘within a period of three months’, excludes the
stroke of midnight on August 22-23. To my mind the word ‘within’, used in the
context of a period of time, is capable of meaning ‘before or at the expiry of’
that period, as Mr Oliver submits; it is not necessarily shorter than the
period itself. Mr Oliver derives some assistance for that submission from one
of the definitions of the word ‘within’ in the Oxford English Dictionary,
where under no 6 the word ‘within’ is defined as follows: ‘In the limits of a
period of time; (most usually) before the end of, after not more than’. It is
difficult to think of examples where the word
not more than’. However, what emerged from the illustration of the meaning of
the word ‘within’ by the expression ‘after not more than’ is that in common
parlance ‘within’ is capable of including the final moment of a period of time.
If a person is required to do something within a week, or in a week, he has a
full week to do it, as it seems to me, including the last moment of that week,
and he is not required to complete the task in less than one week. To construe
this wording of this notice so that it connotes a period of less than three
months, because permission must be given ‘within’ three months with a
consequent failure to allow a full period of three months, appears to me to
strain the language in a hair-splitting and wholly artificial manner. Moreover,
as pointed out by Mr Oliver, the present notice referred expressly to clause 7
of the lease, because it required the tenant to vacate the premises in
accordance therewith. Any doubt as to whether there could have been any
intended difference — which I think as a matter of ordinary English there is
not — between ‘not less that three months’ and ‘within three months’ would, in
my view, be resolved by that reference.
This is a
notice to quit a commercial premises. I am fully aware that over many decades,
and perhaps hundreds of years, there have been many cases of a highly technical
nature on notices to quit. But if the present appeal were allowed on this point
(which had not even occurred to the tenants when these proceedings started), I
think that the reasoning of the court in cases of this kind would rightly be
regarded as wholly artificial, if not absurd. I fully accept the principle that
a notice to quit is a highly important legal document which requires to be
strictly construed. But, even bearing that in mind, I cannot bring myself to
conclude that there is any sensible difference between the terms of this lease
and the words used in the notice to quit, either as a matter of ordinary
English or as common sense. Accordingly, I would dismiss this appeal.
Agreeing,
NOURSE LJ said: The question is a short one. It is also an exceedingly simple
one. The landlord has the right to determine the lease by giving to the tenant
‘not less that 3 months’ previous notice in writing expiring at any time’. On
May 22 the landlord serves a notice on the tenants requiring it to vacate the
premises ‘within a period of three months from the date of service of this
notice’.
It is not in
dispute that a period of three months from May 22 expires at midnight on August
22-23. What then is the effect of a requirement that the tenant shall vacate
the premises ‘within’ that period? Does
it have the effect of giving to the tenant less than three months’ previous
notice? The tenant answers that question
in the affirmative, contending that if someone is required to do something
within a period of months he must do it before midnight on the last day
of the period and that he may not do it at midnight on that day. To put it
another way, the tenant contends that the import of the word ‘within’ is that
there is to be some outside wall of time, however thin, on the near side of
midnight.
Like my lord,
I reject the tenant’s contentions on grounds both of language and of common
sense. The precise meaning of a preposition such as ‘within’ depends on the
context in which it is used. Here it is used in a legal document and it is
applied to a period of three months’ notice. In such a context I see no
difference between the meanings of ‘within’ and ‘during’. In my view, if
someone is required to vacate premises within or during a specified period, he
will comply with the requirement by walking out of the door either before, or
on, the stroke of midnight on the last day of that period. So much for language
pure and simple. As for common sense, I need say no more than that the tenant’s
contentions, if correct, would attribute to the landlord the extremely bizarre
intention to differentiate between midnight on one hand and the nearest
measurable point of time before midnight on the other.
In my judgment
the landlord gave the tenant three months’ previous notice — neither more nor
less. The notice was a valid one. I am accordingly of the opinion that the
learned deputy judge came to a correct conclusion, and I, too, would dismiss
this appeal.
BALCOMBE LJ
also agreed that the appeal should be dismissed and did not add anything.
The appeal
was dismissed with costs including costs of two previous applications. Leave to
appeal to the House of Lords was refused and a further stay of possession order
was refused.
