Lower v Sorrell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DONOVAN,LORD JUSTICE PEARSON |
| Judgment Date | 26 October 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1026-1 |
| Date | 26 October 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J1026-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod,
Lord Justice Donovan and
Lord Justice Pearson
Mr RAYMOND SEARS (instructed by Messrs Vizard, Oldham, Crowder & Cash, Agents for Messrs Stevens, Son & pope, Hay wards Heath) appeared on behalf of the Appellant (Defendant).
Mr LIONEL BLUNDELL, Q. C. and Mr ALAN de PIRO (instructed by Messrs Fuller, Cooper & Reeves, Seaford, Sussex) appeared on behalf on the Respondent (Plaintiff).
This appeal is from a decision of His honour Judge Harold Brown, sitting at the Lewes County Court, on the 14th May, 1962. The Plaintiff's claim was for possession of a dwelling-house with the outbuildings and market garden known as The Gardens, 152, Avis Road, Newhaven, which the Defendant held on a tenancy which she claimed had been determined. The learned County Court Judge came to the conclusion that the tenancy was properly determined and made an Order for possession. Against that Order the Defendant appeals
The original tenancy was created by an agreement in writing dated 4th November, 1943? when the Plaintiff let the premises to the Defendant's predecessor in title for a term of five years from the 29th September, 1943, and thereafter from year to year until determined at the end of the first or any subsequent year by twelve months previous notice in writing.
The Defendant occupied the premises from March 1947 Until June 1947 he occupied them jointly with another person but from that month he occupied them alone as a dwelling-house and market garden. It is conceded that the premises constitute an agricultural holding and the Rent Acts do not apply to it.
On the 9th December, 1955, the Plaintiff's agent served on the Defendant a six months notice to quit. This notice was clearly a bad notice as was appreciated by both parties and it was with drawn but by a letter dated the 20th March, 1959 the Plaintiff's agent gave to the Defendant twelve months notice to quit on the 29th September, 1960, and Mr Blundell agrees that this was a valid notice and no objection could be taken to it. The position was therefore that if nothing further was done the Defendant's tenancy expired on the 29th September, 1960, when the period of notice came to an end.
Immediately before the expiration of this notice however, the Plaintiff's Solicitors by registered post on the 27thSeptember, 1960, served upon the Defendant a further notice to quit on the 29th September, 1961, and that is the notice which the Defendant by his Defence relies upon in this action The Defendant acknowledged receipt of this notice on the 29th September, 1960, adding the words "without prejudice to future agreement". It is only necessary to add that rent was paid by him at the old rate up to the 29th September, 1961.
It was submitted by the Defendant at the hearing before the learned County Court Judge that the notice due to expire on the 29th September, 1961, which I will call the third notice, was bad because the valid notice, which I will and the tenancy call the second notice, put an end to the tenancy/in respect of which the third notice was given did not begin until immediately after the 29th September, 1960.
For the landlord it was submitted that the third notice was a good notice; the fact that it had been given before the tenancy commenced did not invalidate it; and in the circumstances the tenancy was determined at the expiration thereof.
These matters were fully argued before the learned County Court Judge, who came to the conclusion that the second notice was valid and a notice once given could not be withdrawn without the consent of the parties. The third notice was of no account other than as evidence of a new agreement between the parties. It was not challenged that rent had been claimed by the landlord and paid by the tenant quarterly after the 29th September, 1960, and that the tenant had remained in possession of the premises. In those circumstances the learned County Court Judge came to the conclusion that the effect of the second notice was to put an end to the old tenancy but that there was a new tenancy created for a term of one year, that is, the duration of the third notice, and that at the expiry of that year the tenancy came to an end and the landlord was entitled to possession.
Against this the tenant has appealed. His submission is that there was no termination of the new tenancy. The argument is that the effect of a valid notice to quit is to terminate the tenancy. It may be that if the person giving the notice wishes to withdraw it the other party may consent to that happening but it was argued by the Defendant that if such a state of affairs did arise then the old tenancy ceased to exist and a new tenancy was created. The view then taken and argued by the Defendant was that if the tenancy was, as the learned Judge found it to be, a tenancy created by a new agreement for the period only of the notice, it was a tenancy which was less than a tenancy from year to year and therefore came within the meaning of Section 2 of the Agricultural Holdings Act, 1948. Mr Blundell argued on behalf of the landlord that the tenancy which was in being in 1961 was the old tenancy and the effect of the notice of 27th September, 1960, and the subsequent conduct of the parties was to agree that the original tenancy created in 1943 should remain in being. He argued that it was wrong to say that the effect of agreeing to withdraw or waive or cancel a notice to quit, whatever word was used, had the effect of creating a new agreement and not of effecting the continuance of the earlier tenancy. If the old tenancy remained in being Section 2 of the Agricultural Holdings Act, 1948, would not apply. I am bound to say that if the matter were free from authority I should find that argument attractive but the effect of the authorities is the contrary. There was in the first place the case of Tayleur v. Wildin dated 1868 and reported in 3 Exchequer Cases at page 303 In that case a guarantee had been given by the Defendant to the Plaintiff landlord to guarantee the payments of a tenant of the name of Morgan under a tenancy agreement. On the 26th September, 1865, the rent being in arrear, the Plaintiff gave notice to Morgan to quit thepremises but on the following 3rd February, the arrears having been paid up, the notice was withdrawn and Morgan continued in occupation of the farm. In September 1866 when the rent was again in arrear notice to quit was again given to Morgan. The rent due was afterwards paid but the Plaintiff gave notice to the Defendant that he would hold him responsible for the next Lady Day rent. Morgan at the next Lady Day vacated the premises without paying the rent and the Plaintiff sought to recover the rent from the Defendant on his guarantee. It was held that he was not entitled to recover from the Defendant as Morgan did not hold the premises under the contract of tenancy to which the Defendant was a party but under a new agreement to which the landlord and tenant had come when it was agreed that the notice should be withdrawn. Chief Baron Kelly at page 305 in his Judgment says; "But it is clear that, whether the notice to quit is given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the consent of both. If that is so, then the consent of the parties makes a new agreement, and if there is a new agreement there is a new tenancy created to take effect at the expiration of the old tenancy". Baron Brarm well in his Judgment put the matter in this way. On pages 305 and 306 of the report he says: "If the notice is given, the tenancy is at an end; the parties may by a parol contract create a new tenancy, which is what is meant by the phrase withdrawing the notice, but the old tenancy no longer exists, and the guarantee, which only applied to the old tenancy, is gone". The case, although not binding on this Court has remained the law up to the present time and received the approval of this Court in the case of freeman v. Evans 1922 1 Chancery, page 36. I will refer to that case in a moment. In the meantime, however, the decision had been considered in Ireland in the case of Lord Inchquin v. Lyons 20 Law Reports(Ireland) Common Law Division at page 474 It was important in that case because of the Land Acts that the time of the breach and the time of the agreement should be ascertained and it was held there by the Irish Court of Appeal that a notice to quit which is during its currency abandoned by the consent of both parties and not acted on does not perse put an end to a tenancy from year to year. The case of Tayleur v. Wildin was considered and discussed at some length in the course of the argument and in his judgment Chief Justice Morris dealt with it in detail, as did the other Judges of the Court and they were not the view that they were not bound by that decision. In any case in the view of that Court a distinction could be drawn between Tayleur v. Wildin and other cases as it was decided purely on its own facts. In those circumstances the Irish Court of Appeal were of the view that it was unnecessary for the to follow it and they did not in fact do so.
Freeman v. Evans 1922 1 Chancery, 36 , was a decision of this Court. The question there turned on whether a notice to quit which had been given and withdrawn by a subsequent agreement between the parties had created a new tenancy. It was held that it aid as the point was covered by Tayleur Wildin, a case which had been constantly accepted and acted upon in England although not followed, as I have already said, by the Court of Appeal in Ireland. At page Lord Sterndale, faster of the Rolls, in his Judgment said this: "I make these remarks because there...
To continue reading
Request your trial
-
Attorney General v Chin Ah Loy
...commencement of the new tenancy is a valid and effective notice terminating the new tenancy on 30 April 1975.The case of Lower v Sorrell [1963] 1 QB 959 was referred to us on this point. In that case a tenancy under a 1943 agreement in writing for a term of five years had become a tenancy f......
-
Bernays v Prosser
...unless there has been a notice to quit. 6 This view of a tenancy from year to year is supported by the recent decision of this Court in Lower v. Sorrell in 1963, 2 Weekly Law Reports, p. 1. If the report is carefullyexamined, it is quite apparent that it was essential to decide that, when a......
-
Stodday Land Ltd and Another v Pye
...the disponee of a registered estate pending registration. Reliance is placed on Thompson vMcCullough [1947] KB 447 and Lower v Sorrell [1963] 1 QB 959; [1963] 2 WLR 1.20 Thompson was a case in which Thompson had agreed to buy a tenanted property, hadpaid part of the purchase price, and had ......
- Dockerill v Fitzpatrick