Hammersmith and Fulham London Borough Council v Monk

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson
Judgment Date05 Dec 1991
Judgment citation (vLex)[1991] UKHL J1205-1

[1991] UKHL J1205-1

House of Lords

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Ackner

Lord Jauncey of Tullichettle

Lord Browne-Wilkinson

Mayor etc. of the London Borough of Hammersmith and Fulham
(Respondents)
and
Monk (A.P.)
(Appellant)
Lord Bridge of Harwich

My Lords,

1

The issue in this appeal is whether a periodic tenancy held by two or more tenants jointly can be brought to an end by a notice to quit by one of the joint tenants without the consent of the others. It arises for determination in the following circumstances. The appellant, Mr. Monk, and Mrs. Powell were granted by the respondent local authority a weekly tenancy of a flat at 35 Niton Street, London S.W.6 where they co-habited. The tenancy was terminable by four weeks' notice to expire on a Monday. In 1988 Mr. Monk and Mrs. Powell fell out and Mrs. Powell left the flat. She consulted the respondent, who agreed to re-house her if she would terminate the tenancy of the flat by giving an appropriate notice, which she did. The notice was given without Mr. Monk's knowledge or consent but the respondent immediately notified him that the tenancy had been determined and in due course brought proceedings in the West London County Court to recover possession. Judge Roger Cooke held that Mrs. Powell's notice to quit was ineffective to determine the tenancy and dismissed the claim. The Court of Appeal (Slade, Nicholls and Bingham L.JJ.) (1990) 61 P. & C.R. 414 allowed the respondent's appeal and made an order for possession. Mr. Monk now appeals by leave of your Lordships' House.

2

In a previous decision of the Court of Appeal, Greenwich London Borough Council v. McGrady (1982) 46 P. & C.R. 223, it was held that a notice to quit given by one of two joint tenants without the consent of the other was effective to determine the periodic tenancy to which it related. Much of the argument before the Court of Appeal in the present case was directed to the question whether the court was free to reach a conclusion at variance with McGrady on the grounds: (1) that an earlier decision of the Court of Appeal, Howson v. Buxton (1928) 97 L.J.K.B. 749, was, as the judge had held, binding authority to the opposite effect; or (2) that, in any event, the decision in McGrady was given per incuriam. The judgment of Slade L.J., with which Bingham L.J. agreed, examined these issues very thoroughly and reached the conclusion that Howson v. Buxton was not authority for the proposition sought to be derived from it and that McGrady was binding on the court. Nicholls L.J. approached the issue more radically and held, both on principle and in reliance; on a long line of authority prior to the decision in McGrady, that a joint periodic tenancy could be determined by a notice to quit given by one joint tenant.

3

Your Lordships are not technically bound by any previous decision and before examining the relevant authorities I think it helpful to consider whether the application of first principles suggests the answer to the question at issue. For a large part of this century there have been many categories of tenancy of property occupied for agricultural, residential and commercial purposes where the legislature has intervened to confer upon tenants extra-contractual rights entitling them to continue in occupation without the consent of the landlord, either after the expiry of a contractual lease for a fixed term or after notice to quit given by the landlord to determine a contractual periodic tenancy. It is primarily in relation to joint tenancies in these categories that the question whether or not notice to quit given by one of the joint tenants can determine the tenancy is of practical importance, particularly where, as in the instant case, the effect of the determination will be to deprive the other joint tenant of statutory protection. This may appear an untoward result and may consequently provoke a certain reluctance to hold that the law can permit one of two joint tenants unilaterally to deprive his co-tenant of "rights" which both are equally entitled to enjoy. But the statutory consequences are in truth of no relevance to the question which your Lordships have to decide. That question is whether, at common law, a contractual periodic tenancy granted to two or more joint tenants is incapable of termination by a tenant's notice to quit unless it is served with the concurrence of all the joint tenants. That is the proposition which the appellant must establish in order to succeed.

4

As a matter of principle I see no reason why this question should receive any different answer in the context of the contractual relationship of landlord and tenant than that which it would receive in any other contractual context. If A and B contract with C on terms which are to continue in operation for one year in the first place and thereafter from year to year unless determined by notice at the end of the first or any subsequent year, neither A nor B has bound himself contractually for longer than one year. To hold that A could not determine the contract at the end of any year without the concurrence of B and vice versa would pre-suppose that each had assumed a potentially irrevocable contractual obligation for the duration of their joint lives, which, whatever the nature of the contractual obligations undertaken, would be such an improbable intention to impute to the parties that nothing less than the clearest express contractual language would suffice to manifest it. Hence, in any ordinary agreement for an initial term which is to continue for successive terms unless determined by notice, the obvious inference is that the agreement is intended to continue beyond the initial term only if and so long as all parties to the agreement are willing that it should do so. In a common law situation, where parties are free to contract as they wish and are bound only so far as they have agreed to be bound, this leads to the only sensible result.

5

Thus the application of ordinary contractual principles leads me to expect that a periodic tenancy granted to two or more joint tenants must be terminable at common law by an appropriate notice to quit given by any one of them whether or not the others are prepared to concur. But I turn now to the authorities to see whether there is any principle of the English Law of real property and peculiar to the contractual relationship of landlord and tenant which refutes that expectation or whether the authorities confirm it. A useful starting point is the following passage from Blackstone's Commentaries, Book II, Chapter 9, pp. 145-147, which explains clearly how the law developed the concept of a yearly tenancy from the earlier concept of a tenancy at will which gave the tenant no security of tenure:

"The second species of estates not freehold are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; for that the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant, so that either of them may determine his will, and quit his connextions with the other at his own pleasure. Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits. And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land.

The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before-mentioned; and, by a parity of reason, the lessee after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils. And, if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year. And, upon the same principle, courts of law have of late years leant as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved: in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other."

6

I have added emphasis to the phrase "from year to year so long as both parties please" because in its Latin version "de anno in annum quamdiu ambabus partibus placuerit" this same phrase is used repeatedly in a passage from Bacon's Abridgment, 7th edition, which has always been treated as of the highest authority, as apt to describe the essential characteristics of a yearly tenancy.

7

Hence, from the earliest times a yearly tenancy has been an estate which continued only so long as it was the will of both parties that it should continue, albeit that either party could only signify his unwillingness that the tenancy should continue beyond the end of any year by giving the appropriate advance...

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56 cases
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