Die
Mercurii, 31° Octobris 1956
Parliamentary
Archives,
HL/PO/JU/4/3/1040
Die
Mercurii, 31° Octobris 1956
Upon
Report from the Appellate Committee, to whom
was referred the
Cause Wheeler against Mercer, that
the Committee had heard
Counsel, as well on Tuesday
the 17th, as on Wednesday the 18th,
days of July last,
upon the Petition and Appeal of Alfred Morris
Wheeler,
of "Franks", Horton Kirby, in the County of
Kent,
praying, That the matter of the Order set forth in
the
Schedule thereto, namely, an Order of Her Majesty's
Court of
Appeal of the 24th of October 1955, might be
reviewed before Her
Majesty the Queen, in Her Court
of Parliament, and that the said
Order might be reversed,
varied or altered, or that the
Petitioner might have
such other relief in the premises as to Her
Majesty the
Queen, in Her Court of Parliament, might seem
meet;
as also upon the printed Case of Helen Molly Mercer,
lodged
in answer to the said Appeal; and due con-
sideration had this
day of what was offered on either
side in this Cause:
It is
Ordered and Adjudged, by the Lords Spiritual
and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the said Order of
Her Majesty's Court of Appeal,
of the 24th day of
October 1955, complained of in the said
Appeal, be, and
the same is hereby, Reversed except as to
Costs and that
the Order of His Honour Judge Glazebrook of
the
28th day of July 1955, be, and the same is hereby,
Discharged
except as to Costs: And it is hereby Declared,
That the
Plaintiff is entitled to recover possession of
the lock-up shop
at the ground floor of 59 Grosvenor
Road, Tunbridge Wells, in the
County of Kent, and
that the Plaintiff is also entitled to
recover mesne profits
in respect of the said premises, the amount
of such
mesne profits 'to be determined by the County
Court
Judge: And it is further Ordered, That the Cause
be,
and the same is hereby, remitted back to the Tunbridge
Wells
County Court to do therein as shall be just and
consistent with
this Judgment: And it is also further
Ordered, That there
be no Costs of the Appeal to this
House.
Wheeler v.
Mercer.
Viscount
Simonds
Lord
Morton
of
Henryton
Lord
Cohen
Lord
Keith
of
Avonholm
Lord
Somervell
of
Harrow
HOUSE
OF LORDS
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
My lords,
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.
I would
allow the appeal.
(32615)
Wt. 8124—124 35 11/56 D.L./PA/19.
