Decision Nº CON 145 2000. Upper Tribunal (Lands Chamber), 27-11-2000
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Michael Rich QC |
| Date | 27 November 2000 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | CON 145 2000 |
CON/145/2000
Reference by consent - Purported assignment of tenancy without deed - Estoppel by representation or convention - No reliance to detriment – Limited application of Law of Property Act,1925, s.144 - Surrender and regrant - No unequivocal act accepting end of tenancy - Unprofessional conduct not amounting to unconscionable conduct
IN THE MATTER of a NOTICE OF REFERENCE
BETWEEN THE TRUSTEES OF ST JOHN’S HOSPITAL Claimants
and
FREDERICK WILLIAM GEOFFREY KEEVIL Defendants
and ROSS WILLIAM KEEVIL
Somerset
Tribunal Member: His Honour Judge Michael Rich QC
Sitting in public at 48/49 Chancery Lane, London WC2A 1JR
Tuesday 21, Wednesday 22 and Thursday 23 November 2000
The following cases are referred to in this decision:
Camdden London Borough Council v Alexandrou [1997] 30 HLR 534
Crago v Julian [1992] 1 WLR 372
John v George (1995) 71 P&CR 37
Mattey Securities Ltd v Ervin (1998) 77 P&CR 160
Rodenhursst Estate Ltd v W H Barnes Ltd. [1936] 2 AER 3
Troop v Gibson [1986] 1 EGLR 1
Appearances: Ann McAllister instructed by Thring Townsend, solicitors of Bath for the Claimants
Mr A P S DeFreitas instructed by Forrester & Forrester solicitors of Chippenham, Wilts. for the Defendants.
DECISION OF THE LANDS TRIBUNAL
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This is a reference by consent of certain issues arising in the claims for compensation made by the parties in respect of some 2.8 acres of agricultural land compulsorily acquired by the Highways Agency for the construction of the Batheaston Bypass. The Claimants are the freehold owners. The Defendants are respectively father and son. I shall refer to them simply as Frederick and Ross. One or other of the Defendants is the tenant, not only of the subject land, but also of the rest of the field of which it forms part and also of another field on the other side of the A4 Road unaffected by the bypass, extending in all to just over 5 acres.
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If Ross became the tenant as a result of the transactions which fall to be considered, it is contended by the Claimants that his tenancy is subject to a clause permitting them to serve notice to quit in respect of part only of the land, so that their compensation is to be assessed on the basis that they could obtain vacant possession of the subject land. As the land is to be valued on the basis that it could be developed for residential purposes that right would have significant value. If, however, the tenancy is not subject to such "part resumption clause" the Defendants will claim that their compensation should be assessed on the basis that they are entitled to part of the development value of the subject land. I am told that the Highway Agency accept that the value of the land with vacant possession is some £865,000; they agree to be bound, for the purposes of assessing the parties' respective compensation, by the Tribunal's determination of the questions ordered by an Order dated 10th April 2000, to be disposed of at this hearing.
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Those questions were:
1. Which of the Keevils is tenant;
2. Whether any tenancy was protected by the Agricultural Holdings Act 1986;
3. If so, on what terms did either Frederick and/or Ross Keevil hold the land in question and in particular, was there any clause by which the Trustees of St John's Hospital could obtain early possession of the land or part of it?
The parties are now agreed that whichever of the Defendants is the tenant the tenancy is protected by the Agricultural Holdings Act 1986. The other questions remain for determination.
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The parties have been able to agree the majority of relevant facts. In so far as my findings are based on disputed evidence I will indicate in setting out the facts, that that is the case. Accordingly, I find the following material facts:
1. By an agreement dated 4th October 1961, the Claimants granted to Frederick a yearly tenancy of parts of fields OS 250 and 252 amounting to some 5.189 acres from 29th September 1961. Rent was payable half-yearly in arrear on 25th March and 29th September. Clause 7 of the Agreement was a tenant's covenant, in absolute terms, "Not to assign underlet or part with possession of the said lands during the tenancy".
2. Rent of what I will call "the Bailbrook land" was reviewed every three years as permitted by the Agricultural Holdings Acts, and at a meeting to review the rent from Michaelmas 1989 with Mr Timothy Gray, ARICS, acting as the Claimants' land agent, Frederick, who was then aged 66 and "looking to retire" told Mr Gray that his "basic strategy is for transfer" to Ross who was then aged 29. The rent was agreed to be increased to £140 a year.
3. The Bailbrook land was pasture land. Frederick used it to pasture his dairy herd. I accept the Keevils' undisputed evidence that Ross did not wish to continue dairy farming, but did wish to use the Bailbrook land for other stock and began to do so from about this time or even earlier. Indeed he also took, in 1991, from a third party, a grazing licence of adjoining land in his own name. He did not have any formal partnership arrangement with his father in respect of the farm which extended to about 100 acres of freehold and tenanted land. Each kept his own stock and accounted between each other on a family basis for expenses.
4. Although on 25th September 1989, Mr Gray wrote to Frederick to say that the Claimants were willing for Mr Gray to discuss a transfer, possibly from Michaelmas 1990, nothing more was done immediately about "transferring" the Bailbrook land to Ross, for more than two years. Frederick did however follow his strategy to the extent that he negotiated to dispose of his milk quota, which took him until June 1992.
5. Before that date, Ross sent a cheque drawn on his own account for the March 1992 rent. By letter dated 7th April 1992 the Claimants accepted Ross's rent cheque but only as paid on behalf of his father.
6. I accept that Mr Gray thought that the Claimants would be able to resist any claim that Ross might make to succeed to his father's tenancy under the Agricultural Holdings Act in the event of Frederick's death. He did not think that he would be able to justify an increase in rent at Michaelmas 1992, and so served no notice before September 1991. He thought that the Keevils' evident desire to "transfer" the tenancy would however provide an opportunity to negotiate some small advantage for his clients. On 27th April 1992, he wrote to Ross proposing a meeting to agree terms for his "succession" to his father. He wrote "as I explained in 1989 [the claimants] would.. be looking for a rent review and the inclusion of a resumption clause in the present tenancy agreement", although as he accepted when he gave evidence that that was the first mention of such terms. I accept that he thought such clause was fair having regard to the landlord's losing the opportunity to obtain vacant possession on Frederick's death or retirement, and therefore regarded it as something of a routine matter. I also accept that Ross did not know what was meant by a rent resumption clause. On the...
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