Wheeler v Mercer
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Morton of Henryton,Lord Cohen,Lord Somervell of Harrow |
| Judgment Date | 31 October 1956 |
| Judgment citation (vLex) | [1956] UKHL J1031-1 |
| Date | 31 October 1956 |
| Court | House of Lords |
[1956] UKHL J1031-1
Viscount Simonds
Lord Morton of Henryton
Lord Cohen
Lord Keith of Avonholm
Lord Somervell of Harrow
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Wheeler against Mercer, that the Committee had heard Counsel, as well on Tuesday the 17th, as on Wednesday the 18th, days of July last, upon the Petition and Appeal of Alfred Morris Wheeler, of "Franks", Horton Kirby, in the County of Kent, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 24th of October 1955, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Helen Molly Mercer, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 24th day of October 1955, complained of in the said Appeal, be, and the same is hereby, Reversed except as to Costs and that the Order of His Honour Judge Glazebrook of the 28th day of July 1955, be, and the same is hereby, Discharged except as to Costs: And it is hereby Declared, That the Plaintiff is entitled to recover possession of the lock-up shop at the ground floor of 59 Grosvenor Road, Tunbridge Wells, in the County of Kent, and that the Plaintiff is also entitled to recover mesne profits in respect of the said premises, the amount of such mesne profits to be determined by the County Court Judge: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Tunbridge Wells County Court to do therein as shall be just and consistent with this Judgment: And it is also further Ordered, That there be no Costs of the Appeal to this House.
My Lords,
The Appellant is the owner in fee simple of premises at 59, Grosvenor Road, Tunbridge Wells, in the County of Kent, of the ground floor of which the Respondent has been in occupation since 1936, there carrying on the business of a tobacconist. On the 13th April, 1955, the Appellant issued a summons in the Tunbridge Wells County Court against the Respondent claiming possession of the premises and mesne profits from 29th September, 1953, to 12th May, 1955. On 28th July, 1955, the learned County Court Judge dismissed his claim for possession and adjourned the claim for mesne profits. From that decision the Appellant appealed to the Court of Appeal and that Court unanimously dismissed his appeal.
It is common ground that the Appellant is entitled to recover possession of the premises unless the Respondent can avail herself of the protection given by Part II of the Landlord and Tenant Act, 1954, and that she can only do so if she establishes ( a) that at the relevant date she was in possession of the premises as tenant at will of the Appellant, and ( b) that a tenancy at will is protected by the Act. Both these propositions must now be examined.
Upon the first question I do not think it necessary to say much, for I find myself in complete agreement with the County Court Judge on this point and am content to adopt his careful judgment as my own. Having been in possession as joint or sole lessee under a lease which terminated on the 6th September, 1943, she thereafter became a quarterly tenant until the expiration on the 29th September, 1953, of a notice to quit which had been validly given. Since that date she has remained and she still remains in possession of the premises. In the meantime both before and after the notice to quit negotiations took place for the grant of a new lease. These were protracted and exhausting and at an early stage of them the Respondent gave notice under the Landlord and Tenant Act, 1927, claiming a new lease or compensation. This was a circumstance which in my opinion is of paramount weight in determining in what relation the parties thereafter stood to each other and leads decisively to the conclusion that, pending negotiation, the Respondent remained in possession not as a licensee nor as a tenant at sufferance of the Appellant but with his positive assent. The learned Judge in my opinion rightly held that she was a typical tenant at will, conforming to all the classical definitions of such a tenant.
The Respondent was then a tenant at will of the premises when on the 1st October, 1954, the Landlord and Tenant Act, 1954, came into operation and repealed the relevant provisions of the earlier Act. I do not think that the present proceedings are in any way affected by the provisions of the Ninth Schedule to the Act of 1954 and do not further refer to them.
It remains to be considered whether Part II of the 1954 Act protects a tenancy at will, and upon this question I am of opinion that the judgments under review cannot be supported.
Before I come to the crucial definition of "tenancy" in section 69 (1) of the Act I propose to examine briefly the earlier sections in Part II in which that word occurs. By section 23 it is provided that that Part applies to any tenancy where the property comprised therein is or includes premises occupied by the tenant for the purpose of a business—a word which is defined to cover a wider range of activities than those which the earlier Act had protected. Section 24 provides for the continuation and renewal of tenancies: it enacts that a "tenancy" shall not come to an end unless terminated in accordance with the provisions of that Part of the Act and provides by subsection (1) that, subject to the provisions of section 29, the tenant may apply to the Court for a new tenancy ( a) if the landlord has given notice under section 25 to terminate the tenancy, or ( b) if the tenant has made a request for a new tenancy in accordance with section 26, and by subsection (2) that subsection (1) 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. I pause to note that there are no words in subsection (2) which are apt to cover the case of a tenancy at will. Section 25 is of crucial importance. It purports to deal comprehensively with the way in which a landlord may terminate a tenancy. Subsection (1) is general in its terms: it provides that a landlord may terminate a tenancy by a notice in the prescribed form specifying the date at which the tenancy is to come to an end, referred to as "the date of termination": the prescribed form does not throw any light on the present problem. Subsection (2) provides that subject to the provisions of subsection (3) a notice under the 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. Subsection (3) deals with that class of tenancy which apart from the Act could have been brought to an end by notice to quit given by the landlord and enacts what the date of termination in such cases may be. A tenancy at will is not determined by a notice to quit and does not fall within the subsection. Subsection (4) deals with "any other tenancy"—these are the vital words—and provides that 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 the Act the tenancy would have come to an end by effluxion of time. A tenancy at will is not a tenancy which comes to an end by effluxion of time, and does not appear to be within the subsection. The other subsections of this section do not help, and I find, therefore, in the section which is a vital part in the machinery of the Act a significant omission of any provision which covers the case of a tenancy at will.
Section 26 deals with a tenant's request for a new tenancy. It covers only the case where the tenancy under which the tenant holds for the time being is a tenancy granted for a term of years certain exceeding one year. It does not apply to a tenant at will. Nor need I refer to sections 27 and 28. Section 29 must be noticed. It provides that, subject to the provisions of the Act, on an application under section 24 (1) of the Act for a new tenancy the Court shall make an order for the grant of a tenancy comprising such property, at such rent and on such other terms as are thereinafter provided. This is mandatory and I attach some importance to it. For there must be many cases, for example, where a purchaser has been let into possession before completion without any special stipulation and is therefore at law a tenant at will, where it would be manifestly unjust to grant any tenancy. I must observe that, notwithstanding the observation of Lord Justice Denning and the reference to Errington v. Errington, I cannot but regard the example that I have given as a typical case of a tenancy at will. But there must be still more cases where the Court would have nothing to guide it as to what should be the terms of a tenancy granted to a tenant at will. The grant of another tenancy at will would be of little value unless succeeded by another and yet another similar grant, while the grant of a term certain or of a periodical tenancy would substantially change the previously subsisting relation between the parties. I can now pass over a number of sections of which it may truly be said that their language is more appropriate to a periodic tenancy or a tenancy for a term certain yet if the context otherwise admitted it might be wide enough to cover a tenancy at will, and I come to section 43, which by subsection (3)...
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...Wheat v. E. Lacon and Co. Ltd. (1966) 1 All E.R. 582…..................................................…………210 Wheeler v. Mercer (1957) A.C. 416.................................................................................……..214, 271 White v. Bailey (1861) 30 L.J.C.O. 253……...................