Re Midland Railway Company 's Agreement
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 25 January 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0125-1 |
| Date | 25 January 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0125-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Russell
Lord Justice Fenton Atkinson and
Lord Justice Cross
Mr. S. W. Templeman, Q. C. and Mr. V. G. Wellings. (Instructed by Messrs. Mr. Evan Harding) appeared on behalf of the Appellants (Defendants).
Mr. C. Rimer for Mr. L. R. Cullen, (instructed by Messrs. Joynson-Hicks & Co.) appeared on behalf of the Respondents (Plaintiffs).
This judgment is the judgment of the Court, This is an appeal from a decision of Mr. Justice Foster (reported 1970 1 Ch. p.568) in which he held that a notice given by British Railways Board purporting to determine a tenancygranted in December, 1920, by its predecessor the Midland Railway Company was ineffective, because the terms of the tenancy contained a proviso that the tenancy should not be terminated by the landlord Company "until they shall require the said premises for the purposes of their undertaking", a proviso which the judge held was binding and effective. The Railways Board admittedly do not so require the premises: they want a more realistic rent than the £1 p. a. negotiated in 1920.
The terms of the tenancy agreement dated 9th December, 1920, provided for a letting of an area at Luton next to the railway of some 100 square yards "from the 10 June, 1920, for the term of one half year and so on from half year to half year until the said tenancy shall be determined at the yearly rent of £1 payable half yearly the first payment to be made on the 10th December, 1920", Clause 2 was as follows: "This agreement may be determined by either party on giving to the other three months notice such notice to be in writing and to expire at any time hereafter without reference to the commencement of the Tenancy. The Tenants shall have no claim upon the Company for any damage or loss that he may sustain by giving up the said Premises pursuant to such Notice (except the reasonable value of any growing crops which may be then unfit to get) and shall pay a proportionate part of the said rent for the fraction of the current half year up to the day of the expiration of such noticeProvided that this Agreement shall not be so terminated by the Company until they shall require the said premises for the purposes of their undertaking." The rest of the agreement is not material. It is a printed form and parts of Clause 2 are inserted in manuscript, including the proviso, though I do not think that is relevant.
The Board contends that the proviso to Clause 2 conflicted with a general principle that for a tenancy to be valid there must be a certainty as to the maximum duration of the estate. Consequently (it was argued) the only tenancy that existed was one which arose from the facts of the entry into possession and payment and receipt of rent; such tenancy was a half yearly tenancy which included a right in the landlord to give three months' notice expiring at any time, the terms of Clause 2 being inferred as part of the tenancy but shorn of the proviso; alternatively that if such tenancy did not incorporate the provisions of Clause 2, it was terminable by a half years notice expiring on a half yearly date. If that alternative was correct it was accepted that the notice actually given was ineffective; but a new and valid notice could be given by the Board.
For the Board it was alternatively contended that this was a creation of a periodic half yearly tenancy; that the proviso was wholly repugnant to the nature of such a tenancy and must therefore be rejected, leaving the periodic tenancy subject only to the variation of the ordinary common law rules as to determination found in the rest of Clause 2, namely, a three months' notice expiring on any date.
Early in his judgment the learned Judge recited the submission for the Board based on uncertainty of duration, butthereafter did not again notice it; nor did he refer to Lace -v- Chantler (1944 K. B, 368) which was cited in support of the submission. He dealt with a number of authorities on the question of repugnancy, and concluded that the proviso was not repugnant to the nature of a periodic tenancy.
It has been quite clearly and for long established that if a term of years is to be validly created the maximum duration must be ascertained...
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