Vibuhti Parmar and Admas Habteslasie tackle queries raised about notices to quit
Question
I am a landlord and have let my property on a commercial periodic tenancy to a self-employed individual. I wanted to terminate the tenancy and served a notice to quit on the tenant, requiring them to give up possession of the property. Before I served the notice to quit, the tenant assigned the tenancy to a company – of which they are the director and shareholder – without my knowledge. The tenant claims that the notice to quit is invalid because it was not addressed to or served on the company – is that right?
Answer
The notice is valid if you are able to show that it would have been clear to a reasonable tenant that you were terminating the tenancy, ie it should make no difference that the notice to quit was not addressed to the company.
Explanation
As a general principle, you will need to check that the notice to quit complies with any contractual provisions in the tenancy in respect of termination and all statutory provisions applicable to the tenancy. Either the tenancy and/or statute may set out the form and contents of the notice required, including to whom the notice should be addressed and where the notice should be served.
In a recent case concerning agricultural property, Turner and others v Thomas and another [2022] EWHC 1239 (Ch); [2022] EGLR 27, the High Court held that service of a notice to quit addressed to and served on a former tenant to give up possession, after the lease had been assigned to a company, was valid.
In Turner, the former tenant had assigned the lease to a company (without the landlord’s knowledge) in which he was the sole director, secretary and shareholder. In addition, the former tenant was responsible for farming the land on behalf of the company.
The company argued that following Pease v Carter [2020] EWCA Civ 175; [2020] EGLR 15, in which the Mannai reasonable recipient test (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] PLSCS 150) was considered, it was necessary to consider the landlord’s intention. In Turner, the company argued that the landlord could not have intended to serve the company, as they were not aware of the assignment.
The judge dismissed the company’s appeal, deciding that the landlord’s intention was irrelevant, and Pease did not modify the decision in Mannai. The test remained whether it would have been clear to a reasonable tenant that the landlord was giving notice to the tenant to terminate the tenancy. In this case, the reasonable recipient would have had no doubt the notice to quit was intended to convey an intention to require the tenant to give up possession and the recipient would have known the company was the tenant under the lease so they would have understood the notice to be addressed to the company. Therefore, the court found the notice to be valid.
Question
I am the landlord of a residential property and have let my property on a common law monthly periodic tenancy jointly to two tenants. One of those tenants has served a notice to quit. The second joint tenant has stated they do not wish to bring the tenancy to an end, and is claiming the notice is invalid and the tenancy is continuing because the notice was not served by both joint tenants. Is the second joint tenant right?
Answer
No. Where there is a joint periodic tenancy, only one of the tenants needs to serve a notice to quit for it to be effective in bringing the tenancy to an end.
Explanation
In general, joint owners of a tenancy have to act unanimously to carry out positive acts in relation to the tenancy (eg surrendering the term). However, the position is different in relation to periodic tenancies and notices to quit. This is because a periodic tenancy only continues as long as it is the will of all parties that it should continue. Therefore, it is sufficient for one of the tenants to indicate that they no longer wish for the tenancy to continue by the service of a notice to quit. It is not necessary for all joint tenants to serve the notice to quit.
A notice to quit served by one joint tenant might be invalid for other reasons, for example if it was served in breach of trust. The issue arose in Procter v Procter and others [2022] EWHC 1202 (Ch); [2022] EGLR 26 in the context of an agricultural tenancy. In that case, the notice to quit was held to be ineffective because it was served in breach of a trust for a family partnership. The fact all joint tenancies are trusts does not allow a joint tenant to argue service of a notice to quit by one co-tenant is in breach of trust. A joint tenant sought to raise a similar argument in Pile v Pile [2022] EWHC 2036 (Ch); [2022] PLSCS 148 and was unsuccessful. The court held that where the joint tenant serving the notice was a trustee only by reason of their co-ownership with the joint tenant under a periodic tenancy, that did not prevent the service of a notice to quit by only one of the joint tenants.
Vibuhti Parmar is an associate in the real estate disputes team at Charles Russell Speechlys LLP and Admas Habteslasie is a barrister at Landmark Chambers
