Wheeler v Mercer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS |
| Judgment Date | 24 October 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1024-2 |
| Date | 24 October 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J1024-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning,
Lord Justice Hodsom and
Lord Justice Morris.
Mr MICHAEL PARKER: (instructed by Messrs Sole Sawbridge, Agents for Messre Bailey & Coggen, Tonbridge) appeared on behalf of thoe Appellant (Plaintiff).
Mr JAMES FOX-ANDREWS (instructed by Messrs Waterhouse & Co.) appeased on behalf of the Respondent (Defendant).
LORD JUSTICE DENNINO: Miss Heroer has boon a tenant of business premises in Tunbridgs Wells for many years. She has been there since 1936. For a time she hold under a lease, but in the later stages there was a quarterly tenancy, That tenancy was determined by a notice to quit which expired at Michaelmas, 89th September 1953. When she received the notice to quit she gave (as she was entitled to do at that time) a notice under the Landlord & Tenant Act 1927 claiming a new lease on the ground that the goodwill had become attached to the premises, There werePreceeding in the country court on her claim for a new lease but the case never came to hearing because in October 1953 it was adjourned so as to enable the practice to negotiate.
Miss Meroer never applied for an order for security of tenure Tenure under the act 1927. The reason was because for all practical purposes she had security by the fact of lodging hop claim. The landlord did not take out out a suasions fop possession against help because his know it would be countered by an application for security. It is common knowledge that that was the usual course in such cases. So Miss Morcer stayed on by mutual concent pending determination of hop claim fop a now lease.
Negotiations than took place for some eighteen months for a Now lease. Just when it appeared that the parties sight comes to an agreement the landlord changed his mind on the matter. By a letter of the 6th April 1955 he took out someone for possession of the premises, and on the 13th April 1955 he took out a summons fop possession which cases before the County Court Judge, By this time, however. Miss Mercer had no protection under the Landlord and Tenant Act 1927 because the relevant provision of that Act had been repealed by the Landlord and Tenant Act 1954; but she claime that she is entitled to protection under the 1954 Act.
The 1954 Act gives an automatic extension to tenancies of business premises. The question is whether Miss Mercer can take advantage of it. This depends on whether in April 1955 she was in occupation of the premises as a tenant under a tenancy agreement" within the waning of the Act of 1954, The landlord says that she was not. He says that after the 29th September 1853, when her quarterly tenancy expired she held over only a tenant at sufferance a license, or at most he says a tenant at will and as auto he says that she is not within the protection conferred by this 1954 Act.
In my opinion Miss Mercer was not a tentant at sufferance: she held ever with the landlord's consent, not without it, and as such she was prima feele a tenant at will: True it is that under present cases she might be held to be licencee if all that she had was a more personal personal privilege, such as happens when the landlord allows a person to stay on as an of humanity; but Miss Mercer had more than a personal privilege. She claimed to be entitled to a new lease and, if she made good her claim, she would be there by right. She asked no favours and none. She was, I think, a tenant at will.
The question arises, therefore, whether a tenancy ay will is within the 1954 Act, The definition section says: "'Tenancy' means a tenancy created either immediately or derivatively out of the freehold, whether by a lease or under lease or by a tenancy agreement". That definition is wide enough to includes tenancy at will, because every tenancy at will is created by agreement, express or implied. But Mr Michael Parker says that there are other sections in the Act which show that a tenancy at will is not included. He points particularly to the provisions of section 25 which ohm, he says, that the only tenancies in contemplation under this part of the Act are tenancies which could be brought to an and by notice to quit, or tenancies which would come to an and by effluxion of time. He says that a tenancy at will is none of these things. It does not determine by notice to quit, but determines by demand, certainly not by "notice to quit" such as is defined in section 69. It is not a tenancy which comes to an end by effluxion of time. It is, therefore, not in contemplation at all.
In considering this argument, it is necessary to remember the scheme of the Act. Tenancies of business premises are automatically extended beyond the common law time unless and until determined in the manner prescribed by the Act. They can be determined only my a notice of determination which is not less than six months notice nor more than twelve months notice, Such a notice must not be given for a tints earlier than could be given at common law or for a time earlier than that at which the common law lease would expire by effluxion of time; but it canbe given to expire at any later time. The object of section as subsection (5) and (4) is to make it clear that the notice must not be given earlier than the law time. That is all. There was no need to makes any such provision about tenancies at will which would at common law be determined on demand at any time, The emission of than is therefore intelligible In that place without taking them out of the Act altogether. I agree with Mr. Parker that the draughtsman of the Act had not In mind tenancies at will when he was drafting subsections (3) and (4) of that section of the Act, but nevertheless I cannot find in those subsections anything sufficient to take tenancies at will out of the Act. In my opinion, therefore, this tenancy at will come within the Act, and the landlord could not determine it except by a six months notice of termination in accordance with the...
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...1956 the House of Lords held that the Landlord and Tenant Act 1954 did not apply to tenancies at will which arose by operation of law: Wheeler v. Mercer (1957) A. C. 416. In Manfield Ltd. v. Botchin (1970) 2 Q. B. 612, Mr. Justice Cooke held that the Act did not apply to a tenancy at will c......
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