Landlord and tenant — Agricultural holdings — Decision on agricultural holdings case, but with general bearing on landlord and tenant law — Whether a notice to quit given to a tenant from year to year by some but not all the joint holders of the reversionary estate was valid and binding — The tenant in the present case was himself one of the joint landlords, all of them being the children of a deceased landowner — At the material time the freehold reversion was vested in them as trustees for sale holding in trust for themselves until sale as equitable tenants in common in equal shares — The tenant failed to comply with a notice to pay rent given in accordance with Case D in section 2(3) of the Agricultural Holdings (Notices to Quit) Act 1977 — This preliminary notice and the notice to quit which followed were given by the plaintiff and one other of the joint landlords (a third joint landlord and, of course, the tenant not being parties to it) — In fact three successive notices to quit were so given, but the issue was tried on the validity of the first — Earlier decisions supporting the validity of a notice given by one of two or more joint landlords discussed — Doe d Aslin v Summersett (1830) based partly on reasoning made antiquated by the Law of Property Act 1925, but approved by obiter dicta in Leek & Moorlands Building Society v Clark and by the decision of the Court of Appeal in Greenwich London Borough Council v McGrady — Principle as now enunciated is that one of a number of joint owners of a reversion expectant on the determination of a periodic tenancy can serve a valid notice to quit on the tenant — The rationale is that such a tenancy can continue only so long as all the joint landlords so wish — Notice to quit in the present case accordingly held to be effective — The rule does not apply to a surrender or to a right to break a fixed term
This was an
originating summons taken out by Hugh Parsons, one of the four children of the
late Irene Louise Parsons who were jointly entitled to the reversionary estate
in respect of Dobbs Farm in Great Raveley and other agricultural land at
Broughton, Cambridgeshire. The defendants to the summons were the tenant,
Gordon Richard Parsons, and the two other children of Irene Louise Parsons, who
had left the properties as part of her residuary estate in trust for her four
children. The summons raised a number of issues, but the only question the
judge was asked to decide was the validity of a notice to quit dated March 11
1980 given to the first defendant, the tenant, by the plaintiff, Hugh Parsons,
and one other of the joint reversioners, Mrs Enid Joan Jones.
Peter Crampin
(instructed by Vinters, of Cambridge) appeared on behalf of the plaintiff;
Roger Horne (instructed by MacDonald Stacey & Co, agents for Copleys, of St
Ives, Cambridgeshire) represented the first defendant (the tenant). The other
defendants did not appear and were not represented.
Giving
judgment, MR DONALD RATTEE said: At the date of her death on January 18 1976
Irene Louise Parsons, whom I shall call ‘the testatrix’, owned the fee simple
of a farm known as Dobbs Farm comprising about 131 acres of agricultural land
at Great Raveley in Cambridgeshire and two further pieces of agricultural land
at Broughton in the same county of an aggregate area of about 9 acres. By her
will dated November 29 1956 the testatrix gave these properties as part of her
residuary estate to Barclays Bank Trust Co Ltd as her executor on trust subject
to payment of her debts, funeral and testamentary expenses for her four
children, the plaintiff and the defendants, in equal shares. At the date of the
testatrix’s death the land which I have mentioned (to which I will refer
together as ‘the holding’) was let on an oral tenancy at a rent of £500 a year
to the first defendant. The rent was payable in arrear on the Michaelmas
quarter day. This tenancy continued after the testatrix’s death. By agreement
between the parties the rent was increased to £3,250 a year as from September
29 1977. There was a further agreement regarding the rent made in September
1980, but for reasons which will appear I need not be concerned with this
latter agreement in this judgment.
It is common
ground that at and after the date of the testatrix’s death the tenancy held by
the first defendant enjoyed the protection by way of security of tenure
provided first by the Agricultural Holdings Act 1948 and later by the
Agricultural Holdings (Notices to Quit) Act 1977. Section 1(1) of the 1977 Act
provides as follows:
A notice to
quit an agricultural holding or part of an agricultural holding shall
(notwithstanding any provision to the contrary in the contract of tenancy of
the holding) be invalid if it purports to terminate the tenancy before the
expiration of 12 months from the end of the then current year of tenancy.
Section 2(1)
reads:
Where (a)
notice to quit an agricultural holding or part of an agricultural holding is
given to the tenant thereof; and (b) not later than one month from the giving
of the notice to quit the tenant serves on the landlord a counternotice in
writing requiring that this subsection shall apply to the notice to quit, then,
subject to subsection (2) below, the notice to quit shall not have effect
unless the Tribunal consent to its operation.
Subsection (2)
provides:
Subsection
(1) above shall not apply in any of the Cases set out in subsection (3) below.
The only case
in subsection (3) of section 2 which is relevant to the present proceedings is
case D, which is in these terms:
Case D — at
the date of the giving of the notice to quit the tenant had failed to comply
with a notice in writing served on him by the landlord, being either — (a) a
notice requiring him within two months from the service of the notice to pay
any rent due in respect of the agricultural holding to which the notice to quit
relates;
and then there
are further provisions with which I need not be concerned. Section 5(1) of the
Act provides that the Lord Chancellor may by order provide for, inter alia,
‘requiring any question arising under the provisions of section 2(2) and (3) above
to be determined by arbitration under the 1948 Act.’ The Agricultural Holdings (Arbitration on
Notices) Order 1978 (SI 1978 No 257) was made in part pursuant to this power,
and provides in article 9 thereof as follows:
Where it is
stated in a notice to quit an agricultural holding or part thereof that the
notice is given for one or more of the reasons specified in Case B, D or E and
the tenant wishes to contest any of the reasons so stated, he shall within one
month after the service of the notice serve on the landlord notice in
writing requiring the question to be determined by arbitration under the 1948
Act.
These are I
think the relevant statutory provisions.
To return to
the facts, the first defendant defaulted in making a payment of rent due on September
29 1979 and, under cover of a letter which the first defendant admits bore the
date November 7 1979, Messrs Vinters, solicitors acting on behalf of Barclays
Bank Trust Co Ltd, in whom the freehold of the holding remained vested, served
on the first defendant a notice in writing requiring him within two months of
service of such notice to pay the year’s rent due on September 29. The service
of such a notice is, as will be seen from the statutory provisions I have read,
a necessary preliminary to the service of a notice to quit under Case D in
section 2(3) of the 1977 Act. Rather strangely, although according to the first
defendant’s evidence the covering letter was dated November 7 and the plaintiff
says it was served on November 9, the notice bears the date November 25. The
plaintiff says he believes the date on the notice to be an error. The first
defendant does not admit this. However, as will appear, this point is not
material to the issue I have to decide. The first defendant eventually paid the
outstanding rent for the year concerned by cheque dated January 25 1980. By
reason of the doubt as to the date of the service of the notice introduced by
the date on it it is not clear whether this payment was or was not made within
two months of such service so as to comply with the notice. But again, for
reasons that will appear, this point is not now material.
Meanwhile on
November 15 1979 Barclays Bank Trust Co Ltd assented to the vesting of the
freehold of the holding in the plaintiff and the defendants as joint tenants at
law and equitable tenants in common in equal shares in accordance with their
interests under the will of their mother. It was accepted by the parties before
me that the effect of such assent was to make the plaintiff and the defendants
trustees for sale of the holding. On March 11 1980 a notice to quit the holding
was served on the first defendant by Messrs Vinters, solicitors, on the
instructions of the plaintiff and the third defendant. The effect or lack of
effect of that notice is crucial to the question I have to decide, and
therefore I must read the notice in full.
It is headed:
Agricultural
Holdings (Notices to Quit) Act, 1977. Re: The Holding Known as Dobbs Farm,
Great Raveley, comprising approximately 131 acres and two pieces of land
amounting to approximately 9 acres at Broughton in the County of
Cambridgeshire. To Gordon Richard Parsons, tenant. Address, The Gables,
Broughton, Cambridgeshire. As solicitors and agents for and on behalf of your
landlords, Hugh Parsons and Ena Joan Jones, we Messrs Vinters of St George
House, I Guildhall Street, Cambridge, hereby give you notice to quit and
deliver up to them possession of all that holding known as Dobbs Farm, Great
Raveley, comprising approximately 131 acres and two pieces of land amounting to
approximately 9 acres at Broughton in the County of Cambridgeshire which you
hold of them as tenant thereof on the 29th day of September 1981 or at the
expiration of the year of your tenancy which will expire next after the end of
twelve months from the date of service of this notice. This notice is given on
and for the following ground and reason and in pursuance of the paragraph
appropriate thereto set out in section 2(3) of the Act: Case D — At the date of
the giving of this notice you have failed to comply with a notice in writing
dated the 25th day of November 1979 served on you by us requiring you within
two months from the service of the notice to pay any rent due in respect of the
above holding to which this notice to quit relates. Dated this, 11th March
1980. Signed, Vinters, solicitors and agents for the above-named landlords.
The first defendant
did not quit the holding pursuant to that notice. A further notice to quit,
this time dated February 5 1982, was served on him by Messrs Vinters on behalf
of the plaintiff and the third defendant. Again the first defendant paid no
heed to this, and a third notice to quit, dated August 20 1982, was served by
Messrs Vinters on behalf of the plaintiff and the third defendant, but still to
no effect. Rent has not been demanded or paid since September 29 1981. On
November 30 1982 the plaintiff issued the originating summons now before me,
and that summons seeks the following relief.
1. An order
that the defendant, Gordon Richard Parsons, the first defendant, to deliver up
to the landlords thereof possession of the holding. 2. An order that the
defendant, Gordon Richard Parsons, do pay to the landlords of the holding mesne
profits at such rate and from such date as the court shall determine until
possession be delivered up. 3. An order that the defendant, Gordon Richard
Parsons, do make an interim payment of such amount as the court shall think
just in respect of his use and occupation of the holding during the pendancy of
the proceedings herein. 4. Alternatively to the foregoing the determination of
the following questions, namely: whether upon the true construction of Case D
in section 2(3) of the above-mentioned Act of 1977 and in the events which have
occurred: (1) A notice to quit dated March 11 1980 and served on the defendant,
Gordon Richard Parsons, on or before March 19 1980 is or is not effective to terminate
the said defendant’s tenancy of the holding on September 29 1981 or on some
other, and if so what, date; or (2) A notice to quit dated February 5 1982 and
served on the defendant, Gordon Richard Parsons, on or before February 11 1982
is or is not effective to terminate the said tenancy on September 29 1983 or on
some other, and if so what, date; or (3) A notice in writing dated August 20
1982 served on the defendant, Gordon Richard Parsons, on or before August 21
1982 is or is not effective to terminate the said tenancy on September 29 1983
or on some other, and if so what, date. 5. Alternatively to the foregoing an
order that the defendants, alternatively the defendant Bettine Margaret Keyzor
and the defendant Ena Joan Jones do concur with the plaintiff in serving on the
defendant, Gordon Richard Parsons, notice in writing pursuant to Case D in
section 2(3) of the said Act of 1977 requiring the defendant, Gordon Richard
Parsons, within two months of the service of the said notice to pay any rent due
in respect of the holding. 6. Further or alternatively to the foregoing an
order pursuant to section 30 of the above-mentioned Act of 1925 that the
holding be sold or such other order be made as the court shall think fit. 7.
Further or alternatively an order that the trust for sale affecting the holding
may be carried to execution by this Honourable Court.
Then
all necessary
accounts, inquiries and directions, further or other relief and costs.
At the hearing
before me neither the second nor the third defendant appeared. Mr Roger Horne
appeared on behalf of the first defendant. It was agreed between Mr Horne and
Mr Peter Crampin on behalf of the plaintiff that I should decide only question
4(1) in the originating summons, namely whether the notice to quit dated March
11 1980 was or was not effective to terminate the first defendant’s admitted
tenancy of the holding. The reason for this agreement was that at a late stage
in the proceedings Mr Horne on behalf of the first defendant sought to raise a
contention that in September 1980 there came into existence an agreement
binding on the first defendant on the one hand and his brother and sisters on
the other hand whereby the first defendant became entitled to a new tenancy
comprising not only the holding but other land owned by the parties. It was
agreed before me that the parties will want an opportunity of adducing further
evidence on this new issue should it fall to be decided. Mr Horne expressly
conceded that the contention as to a new tenancy is not open to him if the true
answer to question 4(1) in the originating summons is that the first notice to
quit was effective to terminate the first defendant’s original tenancy of the
holding. Accordingly I am concerned in this judgment only with the
effectiveness of the notice to quit dated March 11 1980.
It is accepted
by Mr Horne for the first defendant that it is not open to him to argue that
the notice failed to take effect by reason of section 2 of the Agricultural
Holdings (Notices to Quit) Act 1977, since such an argument, if any, should
have been the subject of arbitration pursuant to article 9 of the Agricultural
Holdings (Arbitration on Notices) Order 1978, to which I have referred earlier
in this judgment. Mr Horne raises two arguments against the effectiveness of
the notice to quit of March 11 1980. First, he says that the notice was served
by only two out of the four persons holding the freehold as joint tenants on
trust for themselves as beneficial tenants in common. Such a notice could only
properly have been given by all four joint tenants, says Mr Horne. Secondly, Mr
Horne says that the notice is in any event defective in form in that it refers
to the plaintiff and the third defendant as the landlords when they were in
fact only two out of the four joint landlords, and it requires the first
defendant to deliver up possession to such two only out of four joint
landlords, which is something the first defendant was not obliged to do.
I shall deal
with these two contentions in that order. The first raises the question simply
stated whether joint tenants of a freehold can only determine a periodic
tenancy of their land by unanimous act of all of them or whether any one or
more of such joint tenants can determine such tenancy without the concurrence
of his or her fellow joint freeholders. The starting point of the argument so
far as judicial authority is concerned is the case of Doe d Aslin v Summersett
(1830) 1 B & Ad 135. The brief headnote to the report reads as follows: ‘A
notice to quit signed by one of several joint tenants on behalf of the others
is sufficient to determine a tenancy from year to year, as to all.’ The facts of that case were as follows. I
read from pp 135-136 of the report:
At the trial
before Lord Tenterden CJ at the London Sittings, after Trinity Term, 1828, the
only question was, as to the sufficiency of the notice to quit. The lessors of
the plaintiff were executors and joint devisees under the will of John
Ricketts, deceased. The defendant had held the premises in question under a lease
from Ricketts: that lease had expired in 1822. The defendant afterwards
continued to occupy the premises as tenant from year to year, and had from time
to time paid rent to Aslin, one of the lessors of the plaintiff. On the 22nd of
December, 1827 a notice to quit at mid-summer, 1828, signed by John Finch, one
of the lessors of the plaintiff, on behalf of the trustees of the late John
Ricketts, was served upon the defendant. It was contended by the defendant, on
the authority of Right v Cuthell ((1804) 5 East 491), that the
notice having been signed by one of two joint tenants, was insufficient. Lord
Tenterden was of opinion that the notice was sufficient, and directed the jury
to find a verdict for the plaintiff, but reserved liberty to the defendant to move
to enter a nonsuit, if the court should be of opinion that the notice was
insufficient.
The judgment
of Lord Tenterden CJ contains the following passage:
When joint
tenants join in a lease each demises his own share, Co Litt 186a, and
each may put an end to that demise as far as it operates upon his own share,
whether his companions will join with him in putting an end to the whole lease
or not; Doe, Lessee of Whayman v Chaplin (3 Taunton, 120); so
that upon the notice to quit in this case, no doubt a third might have been
recovered, had there been a separate demise. But, though upon a joint lease by
joint tenants each demises his own share, this is not the only operation of
such a lease. Joint tenants are seised not only of their respective shares per
my, but also of the entirety per tout; Littleton, section 288. The rent
reserved will enure jointly to all the lessors; Co Litt 47a, 192a, 214a;
and if any of them die, the lessee shall hold the whole as a tenant to
the survivors. Upon a joint demise by the joint tenants upon a tenancy from
year to year, the true character of the tenancy is this, not that the tenant
holds of each the share of each so long as he and each shall please, but that
he holds the whole of all so long as he and all shall
please; and as soon as any one of the joint tenants gives a notice to quit he
effectually puts an end to that tenancy; the tenant has a right upon
such a notice to give up the whole, and unless he comes to a new
arrangement with the other joint tenants as to their shares, he is compellable
so to do. The hardship upon the tenant, if he were not entitled to treat a
notice from one as putting an end to the tenancy as to the whole, is obvious;
for however willing a man might be to be sole tenant of an estate, it is not very
likely he should be willing to hold undivided shares of it; and if upon such a
notice the tenant is entitled to treat it as putting an end to the tenancy as
to the whole, the other joint tenants must have the same right. It cannot be
optional on one side and on one side only. It is certainly true that in Doe
v Chaplin (3 Taunt 120) upon a notice to quit from three joint tenants
out of four, where there were separate demises from each joint tenant, the
court gave it as their opinion that the lessors of the plaintiff had a right to
recover three-fourths; but it was not necessary for the court to decide there
as to the remaining fourth, for the plaintiff had recovered nothing, the jury
had found for the defendant and the court was only granting a new trial.
The case of Right
v Cuthell (5 East 491) which was relied upon at the Bar is clearly
distinguishable. There a lease for twenty-one years from Adams to Cuthell was
determinable at the end of fourteen years, upon six months’ notice in writing
by landlord or tenant, their respective heirs, executors, etc under his or
their hand. Adams made Fisher, Nash and Hyrons executors, and Fisher and Nash
only gave the notice. The case was put, not upon the ground that they were
executors, but upon the ground that they were joint tenants, and that,
circumstanced as that case was, where a mode specifically pointed out was to be
pursued in order to put an end to a subsisting term, and that mode required the
concurrence of all the joint tenants, a notice by some of the joint tenants
only would have no operation, but that concludes nothing upon a case in which a
notice by one only of the joint tenants would clearly operate upon his share,
and where the confining it to that share might work great injustice to the
defendant. We are, therefore, of opinion that the notice was sufficient to put
an end to the tenancy in toto.
Prima facie that decision seems clear authority against the first defendant’s
contention in the present case. However, Mr Horne rightly stresses the fact
that Doe d Aslin v Summersett was decided before the reformation
of the law relating to joint ownership of land by the Law of Property Act 1925
and that at least part of the ground for the decision in that case, namely that
it would have been unjust to conclude that notice to quit by one joint tenant
determined the tenancy only as to his share, is quite inapt to a modern case
such as the present where the joint tenants hold as trustees for sale and there
is no question of a notice by one trustee terminating the tenancy in respect of
part only of the trust property. However, the decision has been considered by
the Court of Appeal in two post-1925 cases to which I was referred.
The first was Leek
& Moorlands Building Society v Clark [1952] 2 QB 788. In that
case the court had to consider whether one of two joint owners of a tenancy
could bind the other by a unilateral surrender of the tenancy. It was argued
that on the authority of Doe d Aslin v Summersett he could. The
Court of Appeal rejected this argument and held that a tenancy held jointly
could be surrendered only by the act of all the joint tenants. The Court of
Appeal distinguished Doe d Aslin v Summersett on the ground that
the court in the latter case was dealing with a notice to quit in respect of a
periodic tenancy and not with a surrender, but cast no doubt on the correctness
of the decision on its own facts. Indeed at p 793 of the report Somervell LJ in
giving the judgment of the court said of the decision in Doe d Aslin v Summersett:
The ratio of
the decision is, we think, to be found in the following sentence: ‘Upon a joint
demise by joint tenants’ — that is the lessors in that case — ‘upon a tenancy
from year to year, the true character of the tenancy is this, not that the
tenant holds of each the share of each so long as he and each shall please, but
that he holds the whole of all so long as he and all shall please, and as soon
as any one of the joint tenants’ — that is the lessors in that case — ‘gives a
notice to quit, he effectively puts an end to that tenancy.’ It is to be noted that Lord Tenterden was
dealing with a notice to quit in respect of a periodic tenancy. He was not
dealing with a right to determine a lease for, say, twenty-one years at the
end, say, of the seventh or fourteenth year. Nor was he dealing with surrender.
There is, we think, force in the submission made on behalf of the plaintiffs
that in the case of a periodic tenancy Lord Tenterden’s principle would apply
when there were joint lessees. The periodic tenancy continues from period to
period unless the notice agreed or implied by law is given. But if one of two
joint lessees who ‘hold the whole’ wishes it not to continue beyond the end of
a period, it might well be held that it did not continue into a new period.
That would happen only if all, that is, the joint lessees, shall please. If one
considers a lease to joint lessees for a term certain with a right of renewal,
it would be obvious, we think, that both must join in requiring a renewal. A
periodic tenancy renews itself unless either side brings it to an end. But if
one of two or more joint lessees does not desire it to continue, we would have
thought that it was in accordance with Lord Tenterden’s principle and with
commonsense that he should be able to make that effective.
His Lordship
went on to say in the Leek & Moorlands Building Society case that
the question in issue in his case was whether the same principle had any
application to a surrender and decided that it had not.
Then at p 795
of the report Somervell LJ returned to the decision in Doe d Aslin v Summersett
which his lordship described in the following terms: ‘It is an illustration, in
a highly technical field, of the general principle that if a joint enterprise
is due to terminate on a particular day, all concerned must agree if it is to
be renewed or continued beyond that day. To use Lord Tenterden’s phrase, it
will only be continued if ‘all shall please’.’
Thus, in the Leek & Moorlands Building Society case the Court
of Appeal recognised, albeit obiter, that the essence of the Doe d
Aslin v Summersett decision was that a periodic tenancy is only to
be continued into the next period if all the holders of a joint interest in the
reversion or in the tenancy so desire, and that if one does not, then he is at
liberty on his own to determine the tenancy.
The same
principle was applied very recently by the Court of Appeal in Greenwich
London Borough Council v McGrady [1982] 81 LGR 288*. In that case
the question for determination so far as relevant to the instant case was whether
one of two joint weekly tenants could give an effective notice to the landlords
to terminate the tenancy. The court, consisting of Sir John Donaldson MR and
May LJ, held that she could. The Master of the Rolls in a judgment with which
May LJ expressed his agreement said at p 290 of the report:
The law can
for practical purposes be taken from the decision of this court in Leek
& Moorlands Building Society v Clark [1952] 2 QB 788. In that
case the husband had bought a long leasehold interest jointly held by himself
and his wife. He then purported to sell with vacant possession, and the court
was concerned with whether the sale constituted an effective surrender of that
long leasehold interest. It was held that it did not, but Somervell LJ, in a
reserved judgment delivered as the judgment of the court, reviewed the general
position of joint tenants, relying in particular upon Doe d Aslin v Summersett
(1830) 1 B & Ad 135, in which Lord Tenterden had adverted to the position
of joint tenants upon a periodic tenancy. It is quite clear that this court was
approving the earlier case.
*Editor’s
note: Also reported at (1982) 267 EG 515, [1983] 2 EGLR 32.
His lordship,
the Master of the Rolls, then cited from the judgment in the Leek &
Moorlands Building Society v Clarke case the passages I have already
cited. He continued with this illuminating passage.
In my
judgment it is clear law that if there is to be a surrender of a joint tenancy,
that is a surrender before its natural termination, then all must agree to the
surrender. If there is to be a renewal, which is the position at the end of
each period of a periodic tenancy, then again all must concur.
Thus there is
in my judgment no doubt that the decision in Doe d Aslin v Summersett,
that one joint tenant of the reversion to a periodic tenancy can serve an
effective notice to quit without the concurrence of his fellow joint tenants,
has received the recent blessing of the Court of Appeal and should be followed
by me unless there is some ground for distinguishing that case from the
present. Mr Horne really, I think, suggested two grounds on which I should
reach a different conclusion in the present case. One is that in this case the
joint tenants were holding as trustees on trust for sale, and, says Mr Horne,
trustees cannot act other than unanimously. One trustee cannot bind the trust
estate without the concurrence of his co-trustees. For support of this latter
proposition Mr Horne relies on Luke v South Kensington Hotel Co
(1879) 11 Ch D 121. In that case two out of three trustees had purported to
enter into a composition with a debtor to the trust estate, and not
surprisingly the Court of Appeal held that the trust estate was not bound
thereby, just as one of two joint tenants of a term of years cannot surrender
the term so as to bind the other. The case does not seem to me to support Mr
Horne’s argument in the present case where, according to the principle
enunciated by Sir John Donaldson MR in Greenwich Borough Council v McGrady
and cited above, if there was to be a renewal of the first defendant’s periodic
tenancy after September 29 1980, then all the joint landlords must have agreed
thereto. In other words, to say that one joint trustee cannot bind his
co-trustees by serving notice to quit in respect of a periodic tenancy is
equivalent to saying that one of several trustees cannot by refusing to consent
to an investment of trust moneys proposed by his co-trustees prevent his
co-trustees from making such an investment. Such a proposition is in my
judgment clearly misconceived. Moreover, although the Court of Appeal in
Greenwich London Borough Council v McGrady did not refer to the fact that the
two joint tenants concerned in that case held their tenancy as trustees on
trust for sale, it seems to me, despite valiant attempts by Mr Horne to
persuade me to the contrary, overwhelmingly likely that they did, with the
result that the Court of Appeal did in that case decide that one trustee of a
periodic tenancy could give notice preventing its renewal for a further period
so as thereby to bind his co-trustee.
However,
whether such trusteeship existed in that case or not in my judgment matters
not, for once it is accepted, as I must accept, that one of several joint
owners of a reversion to a periodic tenancy can serve a notice to quit, because
such a tenancy can only be continued so long as all shall wish, then this
incident of such a joint reversion cannot be destroyed merely by the fact that
the reversion is held on trust. Indeed in Doe d Aslin v Summersett
itself the notice to quit was served by the joint tenant concerned as one of
several executors under a will.
Mr Horne’s
second ground for the submission that I should not in this case apply the
principle in Doe d Aslin v Summersett was that service of a
notice to quit an agricultural holding can involve the landlord in considerable
financial liability to the tenant by way of compensation for disturbance by
virtue of the legislation relating to agricultural holdings, and in particular
section 34 of the Agricultural Holdings Act 1948 and section 9 of the
Agriculture (Miscellaneous Provisions) Act 1968. One of several joint landlords
cannot, says Mr Horne, be allowed to involve his fellow joint owners in such
liability without their concurrence. He relied on the authority of Right
v Cuthell (1804) 5 East 491 as supporting the proposition that one of
several joint tenants cannot bind his fellows save by an act beneficial to
them. As a matter of fact I think it likely that the increase in value of the
reversion to Dobbs Farm by the acquisition of vacant possession is likely to be
more than the amount of any compensation payable to the first defendant for disturbance,
although I have heard no evidence on this point. In any event it is, in my
judgment, clear that the ability of one joint reversioner to a periodic tenancy
to serve a notice to quit depends not on any test of benefit but on the nature
of the periodic tenancy as expounded in Doe d Aslin v Summersett,
Leek & Moorlands Building Society v Clark, and Greenwich
London Borough Council v McGrady, to which I have already referred.
It may be that if in a particular case the service of notice to quit by one
joint tenant of the reversion to a periodic tenancy involved the joint tenants
or some of them in a liability greater than the resultant increase in value of
the reversion, those injured would have a claim in breach of trust against the
joint tenant serving the notice. Compare Megarry and Wade on the Law of Real
Property, 4th ed, pp 394-5, though I do not understand why the learned
authors say in that passage that service of a notice to quit by one joint
tenant will usually be a breach of trust. In any event in my judgment
this factor cannot affect the legal efficacy of such a notice if actually
served as against the tenant, even if the tenant is himself one of the joint
owners of the reversion.
Finally on
this part of the case, Mr Horne sought to derive some comfort from the
definition in section 94 of the Agricultural Holdings Act 1948 of ‘landlord’ as
‘any person for the time being entitled to receive the rents and profits of any
land’. I fear I fail to see the relevance of this definition, since nowhere is
there a provision in the 1948 Act or its successors requiring that a notice to
quit shall be served by the landlord.
Thus in my
judgment it was competent for the plaintiff and the third defendant to serve on
the first defendant a notice to quit, terminating the latter’s tenancy not
earlier than the expiration of 12 months from the end of the year of tenancy
current at the date of service of the notice — see section 1 of the
Agricultural Holdings (Notices to Quit) Act 1977. It follows that the notice dated
March 11 1980 served on the first defendant was effective to determine his
tenancy with effect from September 29 1981 unless the notice suffered from some
other fatal defect of form.
Mr Horne’s
objection to the form of the notice is that it is expressed to be given by
Messrs Vinters as solicitors and agents for and on behalf of ‘your landlords
Hugh Parsons and Enid Joan Jones,’ and to require the first defendant to
deliver up possession to the plaintiff and the third defendant whereas, says Mr
Horne: (a) Vinters were solicitors for all the joint landlords; (b) the
plaintiff and the third defendant were not the landlords but only two of
the joint landlords; and (c) one joint tenant cannot be required to deliver up
possession to two only of his fellow joint tenants. I agree that the notice to
quit is not very aptly drawn, but the law requires no particular form of such a
notice save that it shall make clear to the tenant its intended effect to
terminate his tenancy on a clearly specified date. See Halsbury’s Laws of
England, 4th ed, vol 27, paras 190-191. In my judgment the intent of the
notice of March 11 is sufficiently clearly expressed therein that the first
defendant can have been under no misapprehension as to its intended effect.
Accordingly,
in my judgment the notice was effective to terminate the first defendant’s
tenancy of the holding on September 29 1981, and I shall so declare in answer
to question 4(1) of the originating summons which, as I have indicated, is the
only question I am asked to determine at this stage.
The first
defendant was ordered to pay the costs of this issue.
