MAYOR ETC. OF THE LONDON BOROUGH OF HAMMERSMITH
AND FULHAM
(RESPONDENTS)
v.
MONK (A.P.)
(APPELLANT)
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Ackner
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
LORD BRIDGE OF HARWICH
My Lords,
The issue in this appeal is whether a periodic tenancy held
by two or more tenants jointly can be brought to an end by a
notice to quit by one of the joint tenants without the consent of
the others. It arises for determination in the following
circumstances. The appellant, Mr. Monk, and Mrs. Powell were
granted by the respondent local authority a weekly tenancy of a
flat at 35 Niton Street, London S.W.6 where they co-habited. The
tenancy was terminable by four weeks’ notice to expire on a
Monday. In 1988 Mr. Monk and Mrs. Powell fell out and Mrs.
Powell left the flat. She consulted the respondent, who agreed to
re-house her if she would terminate the tenancy of the flat by
giving an appropriate notice, which she did. The notice was given
without Mr. Monk’s knowledge or consent but the respondent
immediately notified him that the tenancy had been determined
and in due course brought proceedings in the West London County
Court to recover possession. Judge Roger Cooke held that Mrs.
Powell’s notice to quit was ineffective to determine the tenancy
and dismissed the claim. The Court of Appeal (Slade, Nicholls and
Bingham L.JJ.) (1990) 61 P. & C.R. 414 allowed the respondent’s
appeal and made an order for possession. Mr. Monk now appeals
by leave of your Lordships’ House.
In a previous decision of the Court of Appeal, Greenwich
London Borough Council v. McGrady (1982) 46 P. & C.R. 223, it
was held that a notice to quit given by one of two joint tenants
without the consent of the other was effective to determine the
periodic tenancy to which it related. Much of the argument
before the Court of Appeal in the present case was directed to
the question whether the court was free to reach a conclusion at
variance with McGrady on the grounds: (1) that an earlier decision
of the Court of Appeal, Howson v. Buxton (1928) 97 L.J.K.B. 749,
was, as the judge had held, binding authority to the opposite
effect; or (2) that, in any event, the decision in McGrady was
given per incuriam. The judgment of Slade L.J., with which
Bingham L.J. agreed, examined these issues very thoroughly and
reached the conclusion that Howson v. Buxton was not authority
for the proposition sought to be derived from it and that McGrady
was binding on the court. Nicholls L.J. approached the issue more
radically and held, both on principle and in reliance on a long line
of authority prior to the decision in McGrady, that a joint periodic,
tenancy could be determined by a notice to quit given by one joint
tenant.
Your Lordships are not technically bound by any previous
decision and before examining the relevant authorities I think it
helpful to consider whether the application of first principles
suggests the answer to the question at issue. For a large part of
this century there have been many categories of tenancy of
property occupied for agricultural, residential and commercial
purposes where the legislature has intervened to confer upon
tenants extra-contractual rights entitling them to continue in
occupation without the consent of the landlord, either after the
expiry of a contractual lease for a fixed term or after notice to
quit given by the landlord to determine a contractual periodic
tenancy. It is primarily in relation to joint tenancies in these
categories that the question whether or not notice to quit given by
one or the joint tenants can determine the tenancy is of practical
importance, particularly where, as in the instant case, the effect
of the determination will be to deprive the other joint tenant of
statutory protection. This may appear an untoward result and may
consequently provoke a certain reluctance to hold that the law can
permit one of two joint tenants unilaterally to deprive his co-
tenant of “rights” which both are equally entitled to enjoy. But
the statutory consequences are in truth of no relevance to the
question which your Lordships have to decide. That question is
whether, at common law, a contractual periodic tenancy granted to
two or more joint tenants is incapable of termination by a tenant’s
notice to quit unless it is served with the concurrence of all the
joint tenants. That is the proposition which the appellant must
establish in order to succeed.
As a matter of principle I see no reason why this question
should receive any different answer in the context of the
contractual relationship of landlord and tenant than that which it
would receive in any other contractual context. If A and B
contract with C on terms which are to continue in operation for
one year in the first place and thereafter from year to year unless
determined by notice at the end of the first or any subsequent
year, neither A nor B has bound himself contractually for longer
than one year. To hold that A could not determine the contract
at the end of any year without the concurrence of B and vice
versa would pre-suppose that each had assumed a potentially
irrevocable contractual obligation for the duration of their joint
lives, which, whatever the nature of the contractual obligations
undertaken, would be such an improbable intention to impute to
the parties that nothing less than the clearest express contractual
language would suffice to manifest it. Hence, in any ordinary
agreement for an initial term which is to continue for successive
terms unless determined by notice, the obvious inference is that
the agreement is intended to continue beyond the initial term only
if and so long as all parties to the agreement are willing that it
should do so. In a common law situation, where parties are free
to contract as they wish and are bound only so far as they have
agreed to be bound, this leads to the only sensible result.
– 2 –
Thus the application of ordinary contractual principles leads
me to expect that a periodic tenancy granted to two or more joint
tenants must be terminable at common law by an appropriate
notice to quit given by any one of them whether or not the others
are prepared to concur. But I turn now to the authorities to see
whether there is any principle of the English Law of real property
and peculiar to the contractual relationship of landlord and tenant
which refutes that expectation or whether the authorities confirm
it. A useful starting point is the following passage from
Blackstone’s Commentaries, Book II, Chapter 9, pp. 145-147, which
explains clearly how the law developed the concept of a yearly
tenancy from the earlier concept of a tenancy at will which gave
The tenant no security of tenure:
“The second species of estates not freehold are estates at
will. An estate at will is where lands and tenements are
let by one man to another, to have and to hold at the will
of the lessor; and the tenant by force of this lease obtains
possession. Such tenant hath no certain indefeasible estate,
nothing that can be assigned by him to any other; for that
the lessor may determine his will, and put him out whenever
he pleases. But every estate at will is at the will of both
parties, landlord and tenant, so that either of them may
determine his will, and quit his connextions with the other
at his own pleasure. Yet this must be understood with
some restriction. For, if the tenant at will sows his land,
and the landlord before the corn is ripe, or before it is
reaped, puts him out, yet the tenant shall have the
emblements, and free ingress, egress, and regress, to cut
and carry away the profits. And this for the same reason,
upon which all the cases of emblements turn; viz. the point
of uncertainty: since the tenant could not possibly know
when his landlord would determine his will, and therefore
could make no provision against it; and having sown the
land, which is for the good of the public, upon a reasonable
presumption, the law will not suffer him to be a loser by it.
But it is otherwise, and upon reason equally good, where the
tenant himself determines the will; for in this case the
landlord shall have the profits of the land.
” . . .
“The law is however careful, that no sudden determination
of the will by one party shall tend to the manifest and
unforeseen prejudice of the other. This appears in the case
of emblements before-mentioned; and, by a parity of reason,
the lessee after the determination of the lessor’s will, shall
have reasonable ingress and egress to fetch away his goods
and utensils. And, if rent be payable quarterly or half-
yearly, and the lessee determines the will, the rent shall be
paid to the end of the current quarter or half-year. And,
upon the same principle, courts of law have of late years
leant as much as possible against construing demises, where
no certain term is mentioned, to be tenancies at will; but
have rather held them to be tenancies from year to year so
long as both parties please, especially where an annual rent
is reserved: in which case they will not suffer either party
to determine the tenancy even at the end of the year,
without reasonable notice to the other.”
– 3 –
I have added emphasis to the phrase “from year to year so long as
both parties please” because in its Latin version “de anno in annum
quamdiu ambabus partibus placuerit” this same phrase is used
repeatedly in a passage from Bacon’s Abridgment, 7th edition,
which has always been treated as of the highest authority, as apt
to describe the essential characteristics of a yearly tenancy.
Hence, from the earliest times a yearly tenancy has been an
estate which continued only so long as it was the will of both
parties that it should continue, albeit that either party could only
signify his unwillingness that the tenancy should continue beyond
the end of any year by giving the appropriate advance notice to
that effect. Applying this principle to the case of a yearly
tenancy where either the lessor’s or the lessee’s interest is held
jointly by two or more parties, logic seems to me to dictate the
conclusion that the will of all the joint parties is necessary to the
continuance of the interest.
In Doe d. Aslin v. Summersett (1830) 1 B. & Ad. 135, the
freehold interest in land let on a yearly tenancy was vested jointly
in four executors of a will to whom the land had been jointly
devised. Three only of the executors gave notice to the tenant to
quit. It was held by the Court of King’s Bench that the notice
was effective to determine the tenancy. Delivering the judgment,
Lord Tenterden C.J. said at pp. 140-141:
“Upon a joint demise by 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.”
Now it was rightly pointed out in argument that part of the
reasoning in this passage was dictated by considerations derived
from the incidents of joint land tenure at law which were swept
away by the reforming legislation of 1925. But this can in no way
detract from the validity of the proposition emphasised in the
judgment that the yearly tenant of a property let to him by joint
freeholders “holds the whole of all so long as he and all shall
please.” This by itself is a sufficient and independent ground for
the conclusion of the court that notice to quit by any one joint
freeholder was effective to determine the tenancy. Precisely the
same reasoning would apply to the operation of a notice to quit by
one of two or more joint yearly tenants.
– 4 –
Summersett’s case was followed in Doe d. Kindersley v.
Hughes (1840) 7 M. & W. 139 and Alford v.Vickery (1842) Car. &
M. 280, both cases in which the validity of a notice to determine
a yearly tenancy given to the tenant without the concurrence of
one or more of the joint landlords was affirmed. It is interesting
that throughout the 19th century there is no reported case in the
books where the effect of a notice to quit given by one of two or
more joint holders of the tenant’s interest under a yearly or other
periodic tenancy was ever called in question. I do not however
find this surprising. The law was probably regarded as settled
after Summersett’s case, but, in any event, before the advent of
statutory protection of tenants’ rights of occupation, in the case
of a notice to quit given by one of two or more joint periodic
tenants the parties would in most cases have had little incentive
to litigate. If the landlord was content that the other tenants
should remain, there would have been nothing to litigate about. If
the landlord wished to recover possession, he could do so by giving
his own notice to quit.
In this century the English cases directly in point are
Howson v. Buxton (1928) 97 L.J.K.B. 749, Leek and Moorlands
Building Society v. Clark [1952] 2 Q.B. 788 and Greenwich London
Borough Council v. McGrady (1932) 46 P. &. C.R. 223. I will
defer consideration of Howson v. Buxton until later. In Leek and
Moorlands Building Society v. Clark the point directly in issue was
whether one of two joint lessees could validly surrender the lease
before the full period of the lease had run without the
concurrence of the other joint lessee. Delivering the reserved
judgment of the court in favour of the defendant lessees Somervell
L.J. said at pp. 792-793:
“Counsel for the plaintiffs sought to rely on Doe d. Aslin v.
Summersett as supporting a submission that Mr. Ellison, by
what he did, had brought the joint tenancy to an end. That
case was dealing with a lessee from year to year of land
which he held from two joint lessors. A notice to quit was
served signed by one only of the joint lessors. It was
argued that the other lessor had adopted the notice, but
Lord Tenterden, who delivered the judgment of the Court of
King’s Bench, held that without any such adoption a notice
to quit by one of the joint lessors, who were joint tenants,
put an end to the tenancy as to both.
“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
21 years at the end, say, of the seventh or fourteenth year.
Nor was he dealing with surrender.
– 5 –
“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. A 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 common sense,
that he should be able to make that effective.”
The judgment adds at pp. 794-795:
“Even if we are wrong in what we have said with regard to
a right to determine within the period of the lease as
distinct from a right to terminate a periodic tenancy, we
would have thought it plain that one of two joint lessees
cannot, in the absence of express words or authority,
surrender the rights held jointly. If property or rights are
held jointly, prima facie a transfer must be by or under the
authority of all interested. The answer suggested to this is
the principle laid down in Doe d. Aslin v. Summersett.
That case, for reasons which we have given, is not in our
view an exception to the rule we have just stated. 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.”‘
In the Greenwich case the point at issue was precisely the
same as in the present appeal. After citing the judgment of the
court in the Leek & Moorlands Building Society v. Clark. Sir John
Donaldson M.R. said, at p. 224:
“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. In this case. Mrs. McGrady made it quite clear by
her notice to quit that she was not content to renew the
joint tenancy on and after June 15, 1981. That left Mr.
McGrady without any tenancy at all, although it was faintly
argued by Mr. Osman that on, as he put it, the severance
of a joint tenancy the joint tenant who did not concur was
left with a sole tenancy. That cannot be the law, and no
authority has been cited in support of it.
– 6 –
“The only point that remains is whether Mr. McGrady is
entitled to the protection of the Act of 1980 on the ground
that what ‘was a secure contractual tenancy has been
brought to an end. The short answer to that is that the
Act of 1980 operates to give security where landlords give
notice to quit; it does not give security where tenants give
notice to quit.”
In the instant case it has not been suggested either that the
notice to quit given by Mrs. Powell could have had the effect of
“severing” the joint tenancy and leaving Mr. Monk in possession as
sole tenant or that, if Mrs. Powell’s notice was effective, Mr.
Monk was entitled to any statutory protection.
To this formidable body of English authority which supports
the conclusion reached by the Court of Appeal there must be
added the decision of the Court of Session in Smith v. Grayton
Estates Ltd. 1960 S.C. 249 which shows that Scottish law, although
using different terminology, applies essentially the same principle
to give the same answer to the same question. The issue in the
case was whether a tenancy continuing from year to year after
the expiry of a fixed term by virtue of the Agricultural Holdings
(Scotland) Act 1949 was determined by notice given by one of two
joint tenants. Lord President Clyde said, at pp. 354-355:
“In considering this matter, it is of importance to realise
that in the present case the tenants were occupying under
tacit relocation, in other words, that the tenancy was being
prolonged from year to year beyond the stipulated term in
the lease, but that otherwise the conditions in the lease
continued to operate – see Rankine, Law of Leases, p. 601;
Cowe v. Millar, reported only in Connell on The Agricultural
Holdings (Scotland) Act 1923, p. 346, per Lord President
Clyde at p. 355. The question comes to be whether, in that
situation, a timeous notice by one of the two joint tenants
is invalid to bring the tenancy to an end. The argument for
the appellant was that a valid notice must be from both the
joint tenants, and this notice, not being a joint one,
consequently is bad.
‘”But, is I see it, this argument overlooks the meaning and
effect of tacit relocation. Tacit relocation is not an
indefinite prolongation of a lease. It is the prolongation
each year of the tenancy for a further one year, if the
actings of the parties to the lease show that they are
consenting to this prolongation. For, as in all contracts, a
tacit relocation or reletting must be based on consent. In
the case of tacit relocation the law implies that consent if
all the parties are silent in the matter. Hence, where
there are joint tenants, tacit consent by both of them is
necessary to secure the prolongation and to enable tacit
relocation to operate. Silence by both is necessary to
presume that both the tenants wish the tenancy to continue
for another year. On the other hand, if both are not silent,
and if one gives due notice of termination, the consent
necessary for tacit relocation to operate is demonstrably not
present, and tacit relocation will not operate beyond the
date of termination in the notice. Clearly, in the present
case, there is not such tacit consent, and, in my view, a
– 7 –
notice by one of the two joint tenants is enough to exclude
the further operation of tacit relocation.
Lord Sorn, at p. 356, is to the like effect.
These then are the principles and the authorities which the
appellant seeks to controvert. In the light of the careful analysis
in the judgment of Slade L.J. of Howson v. Buxton. which I
gratefully adopt and need not repeat, it is now rightly accepted
that the case affords no greater support for the appellant than can
be derived from the obiter dictum of Scrutun L.J. who said with
reference to a notice to determine a yearly tenancy, at p. 752:
“I personally take the view that one joint tenant cannot give
a notice to terminate the tenancy unless he does so with
the authority of the other joint tenant . . .”
“Despite the eminence of the author of this observation, I do not
feel able to give any weight to it in the absence of any indication
of the reasoning on which it is based.
There are three principal strands in the argument advanced
for the appellant. “First, reliance is placed on the judgment in
Candy v. Jubber (1865) 9 B. & S. 15, for the proposition that a
tenancy from year to year, however long it continues, is a single
term, not a series of separate lettings. The case arose out of an
action for damages by a plaintiff who had been injured by a
defective iron grating which was out of repair so as to amount to
a nuisance. The property was occupied by a yearly tenant but the
claim was brought against the reversioner, who was held liable by
the Court of Queen’s Bench. The defendant appealed to the Court
of Exchequer Chamber on the ground that it was not alleged that
the defendant knew of the nuisance, nor that it had existed prior
to the commencement of the yearly tenancy. The argument is
reported at 5 B. & S. 485. Judgment was reserved, but before it
was delivered the case was settled and Erle C.J. announced:
“It will not be necessary to deliver the judgment we have
prepared.”
The undelivered Judgment in the defendant’s favour is nevertheless
reported at 9 B. & S. 15 and has always been regarded as
authoritative. The passage relied on reads:
“There frequently is an actual demise from year to year so
long as both parties please. The nature of this tenancy is
discussed in 4 Bac. Arb. tit. Leases and Terms for Years,
pp. 838, 839. 7th Ed., and this article has always been
deemed to be the highest authority being said to be the
work of Chief Baron Gilbert. It seems clear that the
learned author considered that the true nature of such a
tenancy is that it is a lease for two years certain, and that
every year after it is a springing interest arising upon the
first contract and parcel of it, so that if the lessee
occupies for a number of years, these years, by computation
from time past, makes an entire lease for so many years,
and after the commencement of each new year it becomes
an entire lease certain for the years past and also for the
years entered on, and that it is not a reletting at the
– 8 –
commencement of the third and subsequent years. We think
this is the true nature of a tenancy from year to year
created by express words, and that there is not in
contemplation of law a recommencing or reletting at the
beginning of each year”.
It must follow from this principle, Mr. Reid submits, that the
determination of a periodic tenancy by notice is in all respects
analogous to the determination of a lease for a fixed term in the
exercise of a break clause, which in the case of joint lessees
clearly requires the concurrence of all. But reference to the
passage from Bacon’s Abridgment, 7th Ed., at p. 839 on which the
reasoning is founded shows that this analogy is not valid. The
relevant passage reads:
“A parol lease was made de anno in annum, quamdiu
ambabus partibus placuerit; it was adjudged that this was
but a lease for a year certain, and that every year after it
was a springing interest, arising upon the first contract and
parcel of it; so that if the lessee had occupied eight or ten
years, or ‘more, these years, by computation from the time
past, made an entire lease for so many years; and if rent
was in arrear for part of one of those years, and part of
another, the lessor might distrain and avow as for so much
rent arrear upon one entire lease, and need not avow as for
several rents due upon several leases, accounting each year
a new lease. It was also adjudged, that after the
commencement of each new year, this was become an entire
lease certain for the years past, and also for the year so
entered upon: so that neither party could determine their
wills till that year was run out, according to the opinion of
the two judges in the last case. And this seems no way
impeached by the statute of frauds and perjuries, which
enacts, that no parol lease for above three years shall be
accounted to have any other force or effect than of a lease
only at will: for at first, this being a lease certain only for
one year, and each accruing year after being a springing
interest for that year, it is not a lease for any three years
to come, though by a computation backwards, when five or
six or more years are past, this may be said a parol lease
for so many years: but with this the statute has nothing to
do, out only looks forward to parol leases for above three
years to come.”‘
Thus the fact that the law regards a tenancy from year to year
which has continued for a number of years, considered
retrospectively, as a single term in no way affects the principle
that continuation beyond the end of each year depends on the will
of the parties that it should continue or that, considered
prospectively, the tenancy continues no further than the parties
have already impliedly agreed upon by their omission to serve
notice to quit.
The second submission for the appellant is that, whatever
the law may have been before the enactment of the Law of
Property Act 1925, the effect of that statute, whereby a legal
estate in land vested in joint tenants is held on trust for sale for
the parties beneficially entitled, coupled with the principle that
trustees must act unanimously in dealing with trust property, is to
– 9 –
reverse the decision in Summersett’s case and to prevent one of
two joint tenants determining a periodic tenancy without the
concurrence of the other. It is unnecessary to consider the
position where the parties beneficially entitled are different from
those who hold the legal interest. But where, as here, two joint
tenants of a periodic tenancy hold both the legal and the
beneficial interest, the existence of a trust for sale can make no
difference to the principles applicable to the termination of the
tenancy. At any given moment the extent of the interest to
which the trust relates extends no further than the end of the
period of the tenancy which will next expire on a date for which
it is still possible to give notice to quit. If before 1925 the
implied consent of both joint tenants, signified by the omission to
give notice to quit, was necessary to extend the tenancy from one
period to the next, precisely the same applies since 1925 to the
extension by the joint trustee beneficiaries of the periodic tenancy
which is the subject of the trust.
Finally, it is said that all positive dealings with a joint
tenancy require the concurrence of all joint tenants if they are to
be effective. Thus, a single joint tenant cannot exercise a break
clause in a lease, surrender the term, make a disclaimer, exercise
an option to renew the term or apply for relief from forfeiture.
All these positive acts which joint tenants must concur in
performing are said to afford analogies with the service of notice
to determine a periodic tenancy which is likewise a positive act.
But this is to confuse the form with the substance. The action of
giving notice to determine a periodic tenancy is in form positive;
but both on authority and on the principle so aptly summed up in
the pithy Scottish phrase “tacit relocation” the substance of the
matter is that it is by his omission to give notice of termination
that each party signifies the necessary positive assent to the
extension of the term for a further period.
For all these reasons I agree with the Court of Appeal that,
unless the terms of the tenancy agreement otherwise provide,
notice to quit given by one joint tenant without the concurrence
of any other joint tenant is effective to determine a periodic
tenancy.
An alternative ground advanced in support of the appeal
relied on the particular terms of the tenancy agreement entered
into by Mr. Monk and Mrs. Powell with the respondent as requiring
notice to quit to be given by both joint tenants in order to
determine the tenancy. I agree entirely with the reasons given by
Slade and Nicholls L.JJ. for rejecting this contention.
I would accordingly dismiss the appeal.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Bridge of Harwich. I agree
with it and for the reasons which he gives I would dismiss the
appeal.
– 10 –
LORD ACKNER
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend. Lord Bridge of Harwich. I agree
with it and for the reasons which he gives I, too, would dismiss
this appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Bridge of Harwich. I agree
with it and for the reasons which he gives I, too, would dismiss
this appeal.
LORD BROWNE-WILKINSON
My Lords,
There are two instinctive reactions to this case which lead
to diametrically opposite conclusions. The first is that the flat in
question was the joint home of Mr. Monk and Mrs. Powell: it
therefore cannot be right that one of them unilaterally can join
the landlords to put an end to the other’s rights in the home.
The second is that Mr. Monk and Mrs. Powell undertook joint
liabilities as tenants for the purpose of providing themselves with
a joint home and that, once the desire to live together has ended,
it is impossible to require that the one who quits the home should
continue indefinitely to be liable for the discharge of the
obligations to the landlord under the tenancy agreement.
These two instinctive reactions are mirrored in the legal
analysis of the position. In certain cases a contract between two
persons can, by itself, give rise to a property interest in one of
them. The contract between a landlord and a tenant is a classic
example. The contract of tenancy confers on the tenant a legal
estate in the land such legal estate gives rise to rights and duties
incapable of being founded in contract alone. The revulsion
against Mrs. Powell being able unilateraly to terminate Mr. Monk’s
rights in his home is property based: Mr. Monk’s property rights in
the home cannot be destroyed without his consent. The other
reaction is contract based: Mrs. Powell cannot be held to a
tenancy contract which is dependant for its continuance on the
will of the tenant.
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The speech of my noble and learned friend Lord Bridge of
Harwich traces the development of the periodic tenancy from a
tenancy at will. He demonstrates that a periodic tenancy is
rounded on the continuing will of both landlord and tenant that the
tenancy shall persist. Once either the landlord or the tenant
indicates, by appropriate notice, that he no longer wishes to
continue, the tenancy comes to an end. The problem is to
determine who is “the landlord” or “the tenant” when there are
joint lessors or joint lessees.
In property law, a transfer of land to two or more persons
jointly operates so as to make them, vis a vis the outside world,
one single owner. “Although as between themselves joint tenants
have separate rights, as against everyone else they are in the
position of a single owner”: Megarry and Wade. The Law of Real
Property. 5th ed., p. 417. The law would have developed
consistently with this principle if it had been held that where a
periodic tenancy has been granted by or to a number of persons
jointly, the relevant “will” to discontinue the tenancy has to be
the will of all the joint lessors or joint lessees who together
constitute the owner of the reversion or the term as the case may
be.
At one stage the law seems to have flirted with adopting
this approach. Thus in Doe d. Whayman v. Chaplin (1310) 3 Taunt.
120 there was a periodic tenancy and four persons were the joint
lessors. Three only of the joint lessors gave notice to quit against
the wishes of the fourth. It is reported that at one stage the
court inclined to the view that in order to determine the tenancy
all four lessors had to agree. However after further argument it
was held that each of the three who had given notice to quit was
entitled to put an end to the tenancy of his share and the three
who had given notice to quit were therefore entitled to recover
three parts of the land. As a result, the defendant apparently was
entitled to stay on the land in right of his tenancy of one part as
tenant in common with the three lessors who had given notice.
Although the decision is difficult for a modern lawyer to
understand fully, one thing is clear: the giving of notice to quit by
three out of the four joint lessors was not sufficient to determine
the tenancy of the whole land.
Despite this flirtation, the law was in my judgment
determined in the opposite sense by Doe d. Aslin v. Summersett
(1830) 1 3. & Ad. 135. The contractual, as opposed to the
property, approach was adopted. Where there were joint lessors of
a periodic tenancy, the continuing “will” had to be the will of all
the lessors individually, not the conjoint will of all the lessors
collectively. This decision created an exception to the principles
of the law of joint ownership: see Megarry and Wade (supra) pp.
421-422.
It was submitted that this House should overrule
Summersett’s case. But, as my noble and learned friend Lord
Bridge of Harwich has demonstrated, the decision was treated
throughout the 19th century as laying down the law in relation to
the rights of joint lessors. It is not suggested that the position of
joint lessees can be different. Since 1925 the law as determined
in Summersett’s case has been applied to notices to quit given by
one of several joint lessees. In my judgment no sufficient reason
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has been shown for changing the basic law which has been
established for 160 years unless, as was suggested, the 1925
legislation has altered the position.
Before 1925 property belonging to two or more persons
concurrently could be held by them in undivided or divided shares
at law. The Law of Property Act, 1925, changed this and requires
that, even in the case of joint tenants, they hold the legal estate
as joint tenants on trust for themselves as joint tenants in equity:
section 36(1). It was suggested that the interposition of this
statutory trust for sale has altered the position: since Mr. Monk
and Mrs. Powell held the legal estate in the periodic tenancy as
trustees and trustees must act unanimously, neither of them
individually could give a valid notice to quit.
In my view this submission fails. The trust property in
question was a periodic tenancy. As between the lessor and the
lessees the nature of the contract of tenancy cannot have been
altered by the fact that the lessees were trustees. The tenancy
came to an end when one of the lessees gave notice to quit. It
may be that, as between the lessees, the giving of the notice to
quit was a breach of trust, theoretically giving rise to a claim by
Mr. Monk against Mrs. Powell for breach of trust. Even this
seems to me very dubious since the overreaching statutory trusts
for sale imposed by the Law of Property Act, 1925, do not
normally alter the beneficial rights inter se of the concurrent
owners: see Re Warren [1932] 1 Ch. 42 per Maugham J. at p. 47;
Bull v. Bull [1955] 1 Q.B. 234. But even if, contrary to my view,
the giving of the notice to quit by Mrs. Powell was a breach of
trust by her, the notice to quit was not a nullity. It was
effective as between the lessor and the lessees to terminate the
tenancy. The fact that a trustee acts in breach of trust does not
mean that he has no capacity to do the act he wrongly did. The
breach of trust as between Mrs. Powell and Mr. Monk could not
affect the lessors unless some case could be mounted that the
lessors were parties to the breach, a case which Mr. Reid, for Mr.
Monk, did not seek to advance. Therefore in my judgment the
1925 legislation does not affect this case.
For these reasons and those given by my noble and learned
friend Lord Bridge, I too would dismiss this appeal.
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