WHEELER
v.
MERCER
31st October, 1956.
Viscount Simonds
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
2
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 deter-
mined by a notice to quit and does not fall within the subsection. Sub-
section (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. T 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)
provides that Part II of the Act does not apply to a tenancy granted for
a term certain not exceeding three months unless (a) the tenancy contains
provision for renewing the term or for extending it beyond three months
from its beginning, or (b) the tenant has been in occupation for a period
which, together with any period during which any predecessor in the
carrying on of the business carried on by the tenant was in occupation,
exceeds six months. Counsel for the Appellant relied strongly on this
3
section. He justly pointed out the anomaly of excluding from the protection
of the Act tenancies granted for a term certain not exceeding three months,
unless certain conditions are satisfied, but bringing within its protection
tenancies at will whose duration might be for a far shorter period. The
answer made to this was that it was no greater anomaly than that which
was provided by a weekly tenancy which had been extended from week to
week by a tenant holding over, and would, it was claimed, be within the
protection of the Act. I am not satisfied what the rights of such a
tenant would be, and do not think it desirable to discuss it. It is sufficient
to say that in section 43 (3) I find once more language which is not
appropriate to the case of a tenancy at will and which I should expect to
find extended or amplified if such a tenancy was intended to be protected.
I come then to the interpretation section, section 69 (1). There are
only two expressions to be considered, which have meanings assigned to
them without the usual qualification of an admitting context. ” . . .’ notice
” to quit’ means a notice to terminate a tenancy (whether a periodical tenancy
” or a tenancy for a term of years certain) given in accordance with the
” provisions (whether express or implied) of that tenancy “. I have already
observed that a tenancy at will is not terminated by such a notice, or, I
should say more accurately, that such a notice is not appropriate or
necessary to the termination of such a tenancy. The other relevant expression
is ” tenancy”, which means ” a tenancy created either immediately or
” derivatively out of the freehold, whether by a lease or underlease or by a
” tenancy agreement or in pursuance of any enactment (including this
” Act) . . . “. A ” tenancy “. then, includes a tenancy ” created . . . out
” of the freehold … by a tenancy agreement”. Can a tenancy at will
be thus described? And, if it might in another context be so described,
is the description itself at least ambiguous so that its meaning may be
influenced by the context of the Act? I do not find these easy questions
to answer. It may, I think, be truly said that, since a tenant at will is
regarded at law as being in possession by his own will and at the will
express or implied of his landlord, he is a tenant by their mutual agreement,
and the agreement may therefore be called a tenancy agreement. He is
distinguished from a tenant at sufferance in that such a tenant is said
to be in possession without either the agreement or disagreement of the
landlord. But, my Lords, though upon a logical analysis it is possible
to regard a tenancy at will as a ” tenancy created by a tenancy agreement”.
I am not satisfied that according to the ordinary use of language, even apart
from any context, it would be so described. A tenancy at will, though called
a tenancy, is unlike any other tenancy except a tenancy at sufferance to
which it is next of kin. It has been properly described as a personal
relation between the landlord and his tenant: it is determined by the
death of either of them or by any one of a variety of acts, even by an
involuntary alienation, which would not affect the subsistence of any other
tenancy. It is true that in some cases the relation of tenant at will may
be expressly created by contract: see, for example, Morgan v. William
Harrison, Limited (1907) 2 Ch. 137. but this is an exceptional case and I do
not exclude the possibility of such a contract being a ” tenancy agreement”
even if a tenancy at will arising by implication of law is not.
If I am right in concluding, as I do, that ” tenancy agreement” is itself
an expression which is ambiguous in its scope. I am led by the context of
the Act which I have examined in some detail to the further conclusion
that it does not cover a tenancy at will arising by implication of law.
It may or may not be unfortunate that the Respondent in this case cannot
avail herself of the protection which the Act affords : in the case of another
tenancy at will the misfortune might lie the other way. Your Lordships
are concerned only to interpret the Act, and in my opinion upon its true
interpretation the Respondent is not protected. The Orders of the Court
of Appeal and of the learned County Court Judge should therefore be
reversed so far as the Appellant’s claim to possession of the premises
is concerned. The Orders as to costs will not be disturbed and there will
be no Order as to the costs of this appeal. I move your Lordships accordingly.
4
My Lords, my noble and learned friend, Lord Keith of Avonholm, who is
unable to be here today, has asked me to say that he concurs in the Opinion
which I have given.
Lord Morton of Henryton
MY LORDS,
Two questions arise on this appeal—(1) On 1st October, 1954, when the
Landlord and Tenant Act, 1954, came into operation, was the Respondent
a tenant at will of the ground floor of No. 59, Grosvenor Road, Tunbridge
Wells? (2) If so. is a tenancy at will protected by the Act?
The first question is not an easy one. A tenancy at will can only arise
with the consent, express or implied, of the landlord. I think there is much
to be said for the view that the Appellant never consented to the Respondent’s
occupation after 29th September. 1953, but took no active steps to recover
possession, on the principle that ” what cannot be cured must be endured “.
because he knew that any application for possession would be countered by
an application for protection under section 5 (13) of the Landlord and Tenant
Act. 1927. If this were the true view, the Respondent would be a tenant on
sufferance. I find it unnecessary to form a concluded opinion on this point,
for in my opinion the Respondent is not protected by the Act of 1954, even
if she is a tenant at will ; I think that section 69, read by itself, gives rise to
a very real doubt as to whether a tenancy at will is or is not ” a tenancy
” created . . . out of the freehold … by a tenancy agreement ” within the
meaning of the definition of ” tenancy ” in that section. This being so, it is
right to seek enlightenment on the point from the rest of the Act, and in my
view a study of sections 23 to 29 inclusive, and in particular subsections (3)
and (4) of section 25. leads inevitably to the conclusion that a tenancy at will
is not within the Act. I agree with everything which has been said from the
Woolsack as to this group of sections.
I add that I should have thought it surprising if the Legislature had intended
to bring within the scope of the Act a relationship so personal and so fleeting
as a tenancy at will. It is certainly unfortunate for the Respondent that she
gets no protection, but the circumstances of the present case are most unusual,
and I cannot think that any real injustice is involved, having regard to the
course of the protracted negotiations. On the other hand, I think that, if
the Act had been extended to tenants at will, undeserved hardship to the
house-owner would have resulted in many cases.
Lord Cohen
The question for determination on this appeal is whether the Appellant
is entitled to an order for possession of shop premises at Tunbridge Wells
situate on the ground floor of No. 59 Grosvenor Road.
The Respondent has been in occupation of those premises since 1936.
Originally she held under a lease but in the later stages under a quarterly
tenancy. That tenancy was determined by a notice to quit which expired
at Michaelmas, 1953. When the Respondent received that notice to quit
she gave, as she was entitled to do, a notice under the Landlord and Tenant
Act, 1927, claiming a new lease on the ground that goodwill had become
attached to the premises, or in the alternative £3,000 compensation. There
were proceedings in the County 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 parties to negotiate.
The Respondent did not apply, as she could have done under section 5(13)
of the 1927 Act, for an interim order authorising her to continue in posses-
sion of the premises for such time and on such terms as the Tribunal
might allow. No doubt there were good reasons why she did not do so,
5
but, unfortunately for her, on the 1st October, 1954, while the negotiations
were still pending, the Landlord and Tenant Act, 1954, came into force.
This repealed sections 4 to 7 of the 1927 Act under which the Respondent
had commenced the adjourned proceedings. Paragraph 8 of the Ninth
Schedule to the 1954 Act contained transitional provisions for the protection
of persons who had obtained an interim order under section 5 (13) of the
1927 Act, but these provisions do not assist the Respondent. Her right to
resist the claim for possession must depend on the operative provisions which
are to be found in Part II of the 1954 Act.
Before I turn to these provisions, I should mention that negotiation con-
tinued up to the 6th April, 1955, when the Appellant’s patience seems to
have been exhausted and his solicitors wrote to the Respondent’s solicitors
asking that the Respondent should vacate the premises immediately.
On the 7th April, 1955, the Appellant issued his summons for possession
in the Tunbridge Wells County Court. The Respondent set up a number
of defences. Only one of them is now material. That is the defence that
the Respondent is and has, since Michaelmas, 1953, been a tenant at will
and is therefore entitled to remain in possession.
The case came on for hearing on the 28th June, 1955, when Mr. J. Fox-
Andrews, for the Respondent, argued that the Respondent was a tenant
at will and that such a tenancy was covered by the protection given by the
1954 Act. This submission was upheld by the County Court Judge in a
considered judgment delivered on the 28th July, 1955. On the 24th October,
1955, the Court of Appeal affirmed his judgment. It is from this decision
that the present appeal is brought.
Before dealing with the arguments addressed to your Lordships I must
refer to the relevant provisions in Part II of the 1954 Act.
” Continuation and renewal of tenancies
“24.—(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 the next following
” section 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.
••••••••
“25.—(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 termina-
” tion specified therein.
” (3) In the case of a tenancy which apart from this Act could have
” been brought to an end by notice to quit given by the landlord —
” (a) the date of termination specified in a notice under this
” section shall not be earlier than the earliest date on which apart
” from this Part of this Act the tenancy could have been brought
” to an end by notice to quit given by the landlord on the date
” of the giving of the notice under this section ; and
6
” (b) where apart from this Part of this Act more than six months’
” notice to quit would have been required to bring the tenancy
” to an end, the last foregoing subsection shall have effect with
” the substitution for twelve months of a period six months longer
” than the length of notice to quit which would have been
” required as aforesaid.
” (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.”
Section 26 enables a tenant who is holding under a tenancy for a term
of years certain exceeding one year, or granted for a term of years certain
and thereafter from year to year, to request a new tenancy, but this provision
is not available to the Respondent.
Sections 33, 34 and 35 deal respectively with the duration, the rent
payable under, and the other terms of a new tenancy granted pursuant to
the Act. I need not set out the sections in full. I only mention them
because the Appellant submitted that they seemed more applicable to a case
where the applicant for a new tenancy was a tenant under a periodical
tenancy or for a term certain than to a case where he was a tenant at will.
I do not myself get much assistance from the provisions of these sections.
Section 43 (3) is in the following terms: —
” (3) This Part of this Act does not apply to a tenancy granted for a
” term certain not exceeding three months unless—
” (a) the tenancy contains provision for renewing the term or for
” extending it beyond three months from its beginning; or
” (b) the tenant has been in occupation for a period which,
” together with any period during which any predecessor in the
” carrying on of the business carried on by the tenant was in
” occupation, exceeds six months.”
The Appellant relied on this subsection because, as he said, it showed
that a weekly tenancy was not within Part II of the Act unless the terms
could be brought within paragraph (b). It was unlikely, so the argument
went, that Parliament intended the still more impermanent tenancy at will
to be within Part II of the Act. The Respondent countered this argument
by pointing out that the exclusion only applies to tenancies ” granted for a
” term certain ” and a weekly tenancy is not a term certain. All periodical
tenancies were therefore within Part II of the Act.
The last, and the most important, section to which I need refer is the
interpretation section, section 69. Subsection (1) provides that—
” In this Act the following expressions have the meanings hereby
” assigned to them respectively, that is to say:
“‘ notice to quit’ means a notice to terminate a tenancy (whether a
” periodical tenancy or a tenancy for a term of years certain) given
” in accordance with the provisions (whether express or implied) of
” that tenancy;
“‘ tenancy ‘ means a tenancy created either immediately or deriva-
” tively out of the freehold, whether by a lease or underlease, by an
” agreement for a lease or underlease or by a tenancy agreement or
” in pursuance of any enactment (including this Act), but does not
” include a mortgage term or any interest arising in favour of a
” mortgagor by his attorning tenant to his mortgagee, and references to
” the granting of a tenancy and to demised property shall be construed
” accordingly;”
Subsection (2) provides that references in the Act to an agreement between
the landlord and the tenant (except in section 17 and subsections (1) and
(2) of section 38) should be construed as references to an agreement in
writing. At first sight it might be thought that “a tenancy agreement”
7
mentioned in section 69 (1) came within the operation of this subsection, but
Mr. Brown, for the Appellant, did not feel able to support this suggestion and
admitted that subsection (2) was dealing only with agreements between land-
lord and tenant such as were contemplated, for example, by sections 32 to 35
inclusive. I need not, therefore, trouble your Lordships further with sub-
section (2).
With these sections in mind I turn to the arguments which were addressed
to your Lordships. It was common ground between the parties that there
were two questions which your Lordships had to decide—
-
-
-
When the present proceedings were commenced was the relation-
ship between the parties that of a tenancy at will? Unless it was, it
was common ground that the Appellant was entitled to succeed. But
if it was, then the second question arises. -
Is a tenancy at will a tenancy within the meaning of the Act?
-
-
My Lords, on the first question I find myself in complete agreement with
the learned County Court Judge when he says:-
” In my opinion the Defendant was a typical tenant at will, con-
” forming to all the classical definitions of such a tenant. I refer to
” Woodfall’s Law of Landlord and Tenant, 23rd ed., p. 283, 284;
” Foa 7th ed., p. 3, and Hill and Redman, 10th ed., pp. 16 and 17,
” and the cases cited by those authorities. She was not in my view a
” mere licensee because she was in exclusive possession with the consent
” of the owner; nor was she a tenant at sufferance because I think the
” landlord’s positive assent must be implied from the circumstances.”
I would, therefore, answer the first question in the affirmative, and I turn
to the second question.
Mr. Megarry, for the Respondent, says that a tenancy at will is ” a tenancy
“agreement” within the meaning of section 69 (1) since a tenancy at will
is a tenancy and agreement is of the essence of a tenancy at will; it is
indeed the feature which distinguishes a tenancy at will from a tenancy
at sufferance. I am prepared to accept that the expression ” a tenancy
” agreement ” may comprise a tenancy at will, but I think that it might also
be the apt language to use where the draftsman had in mind only a tenancy
for a fixed term and a periodical tenancy. The question of the sense in
which it is used in a particular statute must be answered by construing the
statute as a whole, and in my opinion the language of section 25 is con-
sistent only with the adoption of the narrower construction I have indicated.
It is, I think, clear, reading subsections (2), (3) and (4) together, that sub-
sections (3) and (4) are intended to comprise all the tenancies to which
the Act applies. Subsection (3) deals only with tenancies which could be
determined by notice to quit, and it was common ground between the parties
that a tenancy at will is not such a tenancy since a tenancy at will is deter-
mined not by a notice to quit but, for example, by death, bankruptcy or
a demand for possession.
Subsection (4) is to apply ” in the case of any other tenancy “. This is
an omnibus phrase covering all tenancies to which the Act applies except
such as are determinable by a notice to quit. It is clear, however, from
the language of the subsection that it cannot comprise a tenancy at will
because such a tenancy could never come to an end by effluxion of time.
In the Court of Appeal their Lordships sought to avoid this conclusion
by treating subsection (2) as governing the matter in the case of any tenancy
falling outside the scope of subsections (3) and (4). My Lords, I am unable
to find anything in the language of subsections (1) and (2) which justifies
me in ignoring what I think to be the plain meaning of subsections (3)
and (4), nor am I able to find any indication in any other section which
would lead me to place the wider meaning on the expression ” tenancy
” agreement” for which Mr. Megarry argues.
He relied on the case of Morgan v. William Harrison. Limited (1907)
2 Ch. 137, which was a case where the Court held upon the construction
of certain correspondence that the Defendant, who had been tenant of a
coal-mine and remained in possession after the expiration of his lease, was
8
a tenant at will with a right to get the coal and a right to exercise a
way-leave and that he held on all the terms and conditions of the original
tenancy so far as applicable to a tenancy at will, including an arbitration
clause. Mr. Megarry submitted that such a case was clearly within the
policy of the 1954 Act, but would be excluded from its operation unless
a tenancy at will were held to fall within the definition of ” tenancy ” in
section 69 (I). My Lords, I agree with Mr. Megarry that on the con-
struction which I have placed on the 1954 Act tenancies such as that under
consideration in the case cited would be outside the scope of Part II of
the Act, but I believe them to be rare. Certainly your Lordships’ attention
was not directed to any other such case and I console myself with the
reflexion that mining leases are in any event excluded by section 43 (1).
I derive some support for the conclusion I have reached from the decision
of the Court of Appeal in Martinali v. Ramuz (1953) 1 W.L.R. 1196. That
was a case under the Leasehold Property (Temporary Provisions) Act, 1951.
Section 10 of that Act enabled an occupier of shop premises to apply for,
and in certain circumstances to obtain, the grant of a new tenancy where
the expiring tenancy would come to an end immediately before the Act
came into force or within two years beginning from that date, ” and would
” so come to an end by effluxion of time or by the expiration of a notice
” to quit given by the landlord “. The Act contained in section 20 a definition
of tenancy the same in all material respects as that contained in section
69 (1) of the 1954 Act. The tenant died and his executors applied for a
new lease under section 69 (I). The County Court Judge heard a pre-
liminary objection that the occupier was a tenant at will, and that as his
occupation had not been determined by notice to quit and it was not a
tenancy which expired by effluxion of time, it was not covered by section 10
of the 1951 Act. The learned County Court Judge decided the case on
the ground that no notice to quit had been given, but he expressed the
opinion obiter that a tenancy at will did not fall within the protection
afforded by the 1951 Act. In the Court of Appeal. Singleton. L.J.. expressed
the same view ; the other members of the Court did not deal with the
point.
My Lords, the wording of section 10 of the 1951 Act is no doubt more
definite than anything to be found in the 1954 Act. but section 25 of the
1954 Act, as I read it, also indicates that the protection afforded by that
Act was intended only to apply to tenancies determinable by effluxion of
time or notice to quit.
For these reasons I would allow the appeal and discharge the Orders in
the Courts below save so far as they ordered the Appellant to pay the costs
of the Respondent. The Appellant is entitled to an Order for possession
and mesne profits. Each party will bear his own costs of the appeal.
Lord Somervell of Harrow
my lords.
I agree that the Respondent was a tenant at will. The question remains
whether a tenancy at will is within the Act. If the definition of ” tenancy ”
in section 69 plainly excluded a tenancy at will, that would be an end of
the case. I do not think it does. Nor do I think it plainly includes it.
Tenancies at will have such special characteristics that it would be convenient
if definitions expressly stated whether they were included or excluded. One
turns, therefore, to the other provisions of the Act.
Section 25, in my opinion, makes it clear that tenancies at will are excluded.
Subsections (3) and (4) provide in effect that the statutory notice must not
take effect at a date earlier than that on which the tenancy would end or
could be ended. The opening words of subsection (4) show that all tenancies
covered by this Part of the Act are covered by these two subsections.
Tenancies at will are not brought to an end by a notice to quit and are
therefore outside subsection (3), nor by effluxion of time and are therefore
outside subsection (4). They are, therefore, outside the Act. Hodson, L.J.
9
clearly felt that these subsections created a considerable difficulty. He
thought, and here I differ, with respect, that tenancies at will were clearly
within the definition. That being so, he felt that section 25 could not, except
by express words, exclude them. It left them ” in the air “. If, as I think,
the definition is at best ambiguous, the effect of section 25 is to resolve the
ambiguity.
There may be some tenancies at will, and this may be one, which one
would have expected to find covered by the Act, but it would be surprising
if the Act were applicable to tenancies at will generally. It would be absurd
if a prospective purchaser who had entered into possession pending com-
pletion was within the Act, and yet such a purchaser, in the absence of
agreement to the contrary, is a tenant at will. Permissive occupation without
payment of rent would also be a relationship one would not expect to find
within this Part of the Act.
It was submitted with, I thought, some force that as under paragraph 8
of the Ninth Schedule a tenant who had got an order for extended possession
under section 5 (13) of the Landlord and Tenant Act, 1927, was protected,
so should, also, a tenant be protected who had been allowed by the landlord
to remain in possession without an order. Parliament may have assumed
that in such cases possession would have continued on the basis of a
periodical tenancy to which the 1954 Act would apply, and not as here on a
tenancy at will. The fact that paragraph 10 provides expressly for the
preservation of the right to compensation under section 4 of the 1927 Act
suggests that Parliament assumed that the more favourable rights conferred
by the new Act for new tenancies would apply. It has, however, for the
reasons which I have given, excluded tenancies at will, and on the facts
of the present case I cannot think that the Respondent has any real
grievance.
Source: https://www.bailii.org/
