Surrey County Council v Single Horse Properties Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Sir Denis Henry,Lord Justice Potter |
| Judgment Date | 26 March 2002 |
| Neutral Citation | [2002] EWCA Civ 367 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2002 |
| Docket Number | Case No: B2/2001/1002 |
[2002] EWCA Civ 367
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EPSOM COUNTY
COURT, (HIS HONOUR JUDGE HULL QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter
Lady Justice Arden and
Sir Denis Henry
Case No: B2/2001/1002
Mr Nicholas Dowding QC (instructed by Surrey County Council) for the Appellant
Mr Kim Lewison QC and Mr Wayne Clark (instructed by Berwin Leighton) for the Respondent
This case raises the issue whether, where a landlord has served a notice under section 25 of the Landlord and Tenant Act 1954 ("the 1954 Act") and the tenant has served a counter-notice on the landlord and made an application for a new tenancy, the tenant ceases to be liable for rent if it changes its mind about wanting a new tenancy and goes out of occupation prior to the contractual term date (referred to below as "the term date"). The point turns on the true construction of section 64(1)(c) of the 1954 Act, set out below.
The statutory framework
In broad terms, the statutory framework is as follows. Part II applies to "any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes" (section 23(1)). Such a tenancy continues until determined in accordance with Part II of the Act (section 24(1)). The landlord may determine the tenancy by giving notice under section 25(1). If he does so, the tenant may claim a new tenancy if within two months he gives the landlord written notice (commonly called a "counter-notice") that he is not willing to give up possession of the premises and not later than two nor more than four months after receiving the notice he applies to the court for a new tenancy (sections 24(1), 29(2), 29(3)). A tenant under a tenancy for a fixed period exceeding one year may also make a request for a new tenancy (section 26(1)). A tenant may determine a tenancy which is continued by section 24(1) by giving notice to quit or, if the tenancy is for a fixed term, by three months' notice in writing to expire at the end of the term or on any quarter day thereafter (section 27). Section 64 provides for the continuation of tenancies where an application has been made to the court so that they do not expire before the expiration of three months following final disposal of the application for a new tenancy.
The relevant provisions of the Landlord and Tenant Act 1954 are sections 23, 24, 25, 26, 27, 29 and 64 which (as now in force) provide in material part as follows:—
"23 Tenancies to which Part II applies
(1) Subject to the provisions of this Act, this Part of this Act applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes.
(2) In this Part of this Act the expression 'business' includes a trade, profession or employment and includes any activity carried on by a body of persons, whether corporate or unincorporate.
(3) In the following provisions of this Part of this Act the expression 'the holding' in relation to a tenancy to which this Part of this Act applies, means the property comprised in the tenancy, there being excluded any part thereof which is occupied neither by the tenant nor by a person employed by the tenant and so employed for the purposes of a business by reason of which the tenancy is one to which this Part of this Act applies …
24 Continuation of tenancies to which Part II applies and grant of new tenancies
(1) A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of this Act; and, subject to the provisions of section twenty-nine of this Act, the tenant under such a tenancy may apply to the court for a new tenancy –
(a) if the landlord has given notice under section 25 of this Act to terminate the tenancy, or
(b) if the tenant has made a request for a new tenancy in accordance with section twenty-six of this Act.
(2) The last foregoing subsection shall not prevent the coming to an end of a tenancy by notice to quit given by the tenant, by surrender or forfeiture, or by the forfeiture of a superior tenancy, unless –
(a) in the case of a notice to quit, the notice was given before the tenant had been in occupation in right of the tenancy for one month; or
(b) in the case of an instrument of surrender, the instrument was executed before, or was executed in pursuance of an agreement made before, the tenant had been in occupation in right of the tenancy for one month.
(3) Notwithstanding anything in subsection (1) of this section, —
(a) where a tenancy to which this Part of this Act applies ceases to be such a tenancy, it shall not come to an end by reason only of the cesser, but if it was granted for a term of years certain and has been continued by subsection (1) of this section then (without prejudice to the termination thereof in accordance with any terms of the tenancy) it may be terminated by not less than three nor more than six months' notice in writing given by the landlord to the tenant;
(b) where, at a time when a tenancy is not one to which this Part of this Act applies, the landlord gives notice to quit, the operation of the notice shall not be affected by reason that the tenancy becomes one to which this Part of this Act applies after the giving of the notice.
25 Termination of tenancy by the landlord
(1) The landlord may terminate a tenancy to which this Part of this Act applies by a notice given to the tenant in the prescribed form specifying the date at which the tenancy is to come to an end (hereinafter referred to as "the date of termination"):
Provided that this subsection has effect subject to the provisions of Part IV of this Act as to the interim continuation of tenancies pending the disposal of applications to the court.
(2) Subject to the provisions of the next following subsection, a notice under this section shall not have effect unless it is given not more than twelve nor less than six months before the date of termination specified therein.
…
(4) In the case of any other tenancy, a notice under this section shall not specify a date of termination earlier than the date on which apart from this Part of this Act the tenancy would have come to an end by effluxion of time.
(5) A notice under this section shall not have effect unless it requires the tenant, within two months after the giving of the notice, to notify the landlord in writing whether or not, at the date of termination, the tenant will be willing to give up possession of the property comprised in the tenancy.
(6) A notice under this section shall not have effect unless it states whether the landlord would oppose an application to the court under this Part of this Act for the grant of a new tenancy and, if so, also states on which of the grounds mentioned in section thirty of this Act he would do so.
26 Tenant's request for a new tenancy
(1) A tenant's request for a new tenancy may be made where the tenancy under which he holds for the time being (hereinafter referred to as "the current tenancy") is a tenancy granted for a term of years certain exceeding one year, whether or not continued by section twenty-four of this Act, or granted for a term of years certain and thereafter from year to year.
(2) A tenant's request for a new tenancy shall be for a tenancy beginning with such date, not more than twelve nor less than six months after the making of the request, as may be specified therein:
Provided that the said date shall not be earlier than the date on which apart from this Act the current tenancy would come to an end by effluxion of time or could be brought to an end by notice to quit given by the tenant.
…
(5) Where the tenant makes a request for a new tenancy in accordance with the foregoing provisions of this section, the current tenancy shall, subject to the provisions of subsection (2) of section thirty-six of this Act and the provisions of Part IV of this Act as to the interim continuation of tenancies, terminate immediately before the date specified in the request for the beginning of the new tenancy.
…
27 Termination by tenant of tenancy for fixed term
(1) Where the tenant under a tenancy to which this Part of this Act applies, being a tenancy granted for a term of years certain, gives to the immediate landlord, not later than three months before the date on which apart from this Act the tenancy would come to an end by effluxion of time, a notice in writing that the tenant does not desire the tenancy to be continued, section twenty-four of this Act shall not have effect in relation to the tenancy unless the notice is given before the tenant has been in occupation in right of the tenancy for one month.
(2) A tenancy granted for a term of years certain which is continuing by virtue of section twenty-four of this Act may be brought to an end on any quarter day by not less than three months' notice in writing given by the tenant to the immediate landlord, whether the notice is given …. after the date on which apart from this Act the tenancy would have come to an end or before that date, but not before the tenant has been in occupation in right of the tenancy for one month.
29 Order by court for grant of a new tenancy
(1) Subject to the provisions of this Act, on an application under subsection (1) of section twenty-four of this Act for a new tenancy the court shall make an order for...
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