Bernays v Prosser
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES |
| Judgment Date | 26 March 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0326-2 |
| Date | 26 March 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0326-2
In The Supreme Court of Judicature
Court of Appeal
From his Honour Deputy Judge S.J. Havard Evans Pontypridd County Court
The Master of the Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Davies
MR PETER LANGDON-DAVIES (instructed by Mesers Robbins, Olivey & Lake, Agents for Messrs Burges Salmon & Co., Bristol) appeared as Counsel for the Appellant.
MR W.N.FRANCIS (instructed by Messrs Elfyn David & Hamblen, Cardiff.) appeared as Counsel for the Respondent.
This raises a short but interesting point under the Agricultural Holdings Act 1948. For a great number of years the tenant of an agricultural holding has been protected by statute. He is not liable to quit except on having twelve months notice, it is quite clear that this protection extends to a tenant who has had an agricultural holding for a fixed term of two years or were, (See Section 3 of the Act). It is equally clear that this protection extends to a tenant who has only had a six months terra or a nine months terra or even a 364-day torm of his tenancy. (See Section 2 of the Act). But tenants who have a fixed terra of between one and two years have no such protection. It has been hold by this Court that there is a lamentable gap in the statute, A tenant of an agricultural holding for a fixed period betwoen one and two years is not entitled to the protection of the Act at all. He has to go out of his holding at the end of his terra without any protection, (See Gladstone v. Bower, 1960, 2 queen's Bench, p. 384). The gap has not been closed by Parliament even to this day, although we are told there is an agricultural Bill before Parliament at the moment.
Accepting that to be the law, we have to consider here what is the position of a tenant for a fixed term of one year. Is such a tenant entitled to protection under the Agricultural Holdings Act? The agreement in this case is quite simple: "Memorandum of agreement made this first day of April, 1961, botween Mr C. Prosser of the one part, and the Woodland Management Association, acting as Woodland agents for and on behalf of the owners of the Caerphilly Woodlands, of the other part. Whereby it is agreed that the smallholding of Tyn-y-Par including approximately four acres of land and the building known as the 'Beast House', shall be leased to Mr Proaser for a period of one year to 31st March, 1962, on payment of a rental of five shillings per week. This agreement is subject to review at theend of this period and may be renewed at the discretion of the owners". The then owners transferred to the present plaintiff their interest in the property and she claims possession.
Owing to the gap which has been found in the statute, the tenant in this case, in order to be protected by the Agricultural Holdings Act, must bring himself within Section 2(1) of the Act. That is to say, he must show that a tenancy for one year Certain is "an interest loss than a tenancy from yoar to year".
What then is the interest of a tenant from year to year? At one time the impression prevailed in Westminster Hall that, even at common law, a tenancy from year to year was a tenancy for two years at least. It was supposed that it could not be determined at the end of the first year but at the end of the socend year at the earliest. This impression soer is to have been derived from a passage in Bacon's Abridgment which was accepted as correct by a strong Court of Exchequer Chamber when they preparod their undelivered Judgment in Gandy v. Jubber (1864) 9 Best & Smith at p. 18. But upon examining the passage in Bacon's Abridgment, it seems to me that refers only to a case whore a man makes a lease "for a year and thereafter from yoar to year". On such words the tenancy clearly continues beyond the first year and must go on for two years at the least, because it cannot be determined earlier. But when you have a simple lease "from year to year" without more said, or a simple holding over on a tenancy "from year to year", it is now well established that it can be determined by six months' notice given during the first year to expire at the end of the first year, see Doe v. Smaridge (1845) 7 queen's Bench, 957. True it is that the Agricultural Holdings Act, 1948. now requires twelve months' notice in the case of an agricultural holding, so that it cannot be determined at the end of the first year, but only at the end of the second year at the earliest. But that is special to agricultural holdings. It does not affect the quality at common law of atenancy from year to year. And it is the common law tenancy which provides the yardstick. It is the measure by which to judge whether an interest is "less than a tenancy from year to year". This Court so hold in Gladstone v. Bower, 1960, 2 queen's Bench, p. 381. and we are bound by it.
Seeing that a common law tenancy from year to year can he determined at the end of the first year, it is said that a tenant "for one year certain" has a tenancy which is equal to, and not less than a tonancy "from year to year": because each is only certain to last for one year. This contention derives considerable support from an Irish case in 1874 Wright v. Tracey, 8 Irish Reports, Common Law, p. 478, when the Court of Exchequer Chamber in Ireland had to consider similar words in the Landlord and Tonant (Ireland) Act 1870. The majority of the...
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E.W.P. Ltd v Moore
...upon the 1948 Act by Diplock J. Both Pearce and Diplock L.JJ. viewed the anomaly created as one that should be cured by Parliament. In Bernays v. Prosser [1963] 2 Q.B. 593, which also turned on the Agricultural Holdings Act 1948, Lord Denning MR made it clear that he regarded Gladstone v. B......
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Frances Margaret Wood (Married Woman) and Elizabeth Jane Pickersgill (Widow) (Respondents (Plaintiffs) v John Wall (Appellant
...clear that a tenancy for a year must be equivalent, under the Act, to a tenancy from year to year, as the latest authority shows: see Bernays v. Prosser (1963, 2 Q.B., 592). 4 The action was started in November of last year and the plaintiff, to whom was added at the hearing her mother, cla......