Associated London Properties Ltd v Sheridan

 Associated London Properties Ltd v Sheridan

LANDLORD AND TENANT; Leases

KING’S BENCH DIVISION

WROTTESLEY J

12 NOVEMBER 1945

Landlord and Tenant – Notice to quit – Construction – Lease for two years and thereafter for consecutive periods of two quarters – Lease determinable on or

after given date by two quarters’ previous notice in writing – Lease determined by landlords by notice expiring on given date – Notice invalid.

By a lease, dated 25 March 1942, certain premises were demised by the plaintiffs to the first defendant from 25 December 1942, for a term of two years and

thereafter for consecutive periods of two quarters “determinable nevertheless as hereinafter mentioned.” By cl 6 of the lease, providing for termination, it was

stipulated that if on or after 24 June 1945, either party should desire to determine the lease and should give to the other of them two quarters’ previous notice

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in writing of such desire, then, immediately upon the expiration of such notice the lease and everything contained therein should cease and be void. On the

strength of that clause the plaintiffs gave in writing two quarters’ notice to quit expiring on 24 June 1945, and, the notice having expired, they claimed

possession of the flat and mesne profits. It was contended for the defendants that, on a proper interpretation of the Lease, the landlords were not entitled to

give notice until or after 24 June 1945:—

Held – On a true construction of cl 6, the earliest date on which a notice to quit, which must be a notice covering two quarters, could be given, was 24 June

1945. Consequently, the notice given by the plaintiffs was not effective.

Gardiner v Ingram, Re Lancashire & Yorkshire Bank’s Lease, Davis (W) & Son v Lancashire & Yorkshire Bank followed.

Notes

This case decides that where a lease contains provision for determination “on or after” a specified date, notice cannot be given to expire on that date, which

itself constitutes the earliest date when notice can be given. This conclusion is arrived at equally by consideration of the literal meaning of the lease, or by

applying the reasoning of Lord Coleridge in Gardner v Ingram.

As to Determination of Notice to Quit, see Halsbury Hailsham, Edn, Vol 20, pp 130–132, para 140; and for Cases, see Digest, Vol 31, pp 439, 440, Nos

5846–5857.

Cases referred to in judgment

Gardner v Ingram (1889), 61 LT 729, 31 Digest 446, 5931.

Thompson v Maberly (1811), 2 Camp 573, 31 Digest 439, 5847.

Brown v Symons (1860), 8 CBNS 208, 34 Digest 55, 296, 29 LJCP 251, 2 LT 323.

Re Lancashire & Yorkshire Bank’s Lease, Davis (W) & Son v Lancashire & Yorkshire Bank (1914) 1 Ch 522, 31 Digest 439, 5853, 83 LJCh 577, 110 LT 571.

Action

Action for the possession of a flat and mesne profits. The facts are fully set out in the judgment.

H J Astell Burt for the plaintiffs.

Serjeant Sullivan KC and H O Danckwerts for the defendants.

12 November 1945. The following judgment was delivered.

WROTTESLEY J. In this case, by a lease appearing to be made on 25 March 1942, between the plaintiffs in this action and the first defendant, a residential

flat was let to the first defendant for her:

‘… to hold the same unto the lessee from the twenty-fifth day of December 1942 for a term of two years and thereafter for consecutive periods of

two quarters (determinable nevertheless as hereinafter mentioned),’

so that the two years would expire on 25 December 1944, and then the “consecutive periods of two quarters” would begin to run.

The words “determinable nevertheless as hereinafter mentioned” refer, as all parties agree, to cl 6 of the lease which reads as follows:

‘If on or after the twenty-fourth day of June 1945 either party shall desire to determine this lease and shall give to the other of them two quarters

previous notice in writing of such desire and in case of such notice being given by the lessee the lessee shall up to the time of such determination pay the

rent and observe and perform the covenants on the part of the lessee and the agreements and conditions herein contained then immediately upon the

expiration of such notice this lease and everything herein 􀂭 20􀀉 contained shall cease and be void but without prejudice to the rights and remedies of

either party against the other in respect of any antecedent claim or breach of covenant.’

Upon that clause the plaintiffs gave in writing two quarters’ notice to quit expiring on 24 June 1945; and, that notice having expired, they claim

possession of the flat and mesne profits. The defendants contend that, properly understood and read, the lease—the relevant provisions of which I have

read—does not enable a notice to be given at all until on or after 24 June 1945, the very day upon which the plaintiffs claim to have the right to possession,

and, therefore, of course, that the claim is bad; and, if they are right, these proceedings must fail.

Whether I construe the language literally, or whether I appeal to authority, I am led to the same conclusion, namely, that cl 6 says what it means, and that

notwithstanding the habendum, no notice can be given to determine this lease—which is not for a fixed term, but which is for a fixed term and thereafter for

consecutive periods—until 24 June 1945; that is the earliest date upon which any notice can be given under cl 6. That is what the clause says, that if on or

after 24 June 1945, “either party shall desire to determine this lease and shall give to the other of them two quarters previous notice in writing,” then certain

results follow. It is quite clear in this case that no notice was given (whatever the desire may have been) on or after 24 June 1945; no other notice is relied

upon or suggested, than that which expires on 24 June 1945.

I get the same result if I appeal to authority. Gardner v Ingram was the case of an agreement for a lease for five years commencing on 29 September

1885, and contained this clause:

‘The tenancy might be determined after the expiration of the term of three years out of the term of five years hereinbefore mentioned by six calendar

months’ notice in writing from either of the said parties to the other of them, and that such notice must expire at the corresponding quarter-day at which

the tenancy commenced.’

Under that clause the tenant gave a notice—which was, as it happened, a bad notice—to expire at the end of the three years, that is to say, on 29 September

1888, which was the expiration of the three years. Apart from the fact that the notice was equivocal in its terms, and, therefore, bad, Lord Coleridge LCJ, dealt

with the case of Thompson v Maberly, which had been thought to be authority for the proposition that such a lease might be determined at the expiration of the

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three years, although the language of the clause dealing with it said that it might be determined after the expiration of the three years, Lord Coleridge said (61

LT 729, at p 730):

‘That case is not, however, quite satisfactory, as it appears to have been decided on the meaning of the word certain [the phrase in Thompson v.

Maberly was “for twelve months certain, and six months notice to quit afterwards”] and as LORD CAMPBELL points out in a note, the decision was for

the plaintiff on another point, so that LORD ELLENBOROUGH’S observation was obiter. It is true that in the case of Brown v. Symons in the

Common Pleas, which was an apprenticeship case and turned upon the words “for twelve months certain,” Thompson v. Maberly was cited in the

argument, and was not disapproved of. But I think that in a case of a similar agreement where the word “certain” does not occur, it would be very

doubtful whether Thompson v. Maberly should be treated as an authority.’

In that case, therefore, Lord Coleridge LCJ, was of opinion that the earliest date at which that tenancy could have been determined was twelve months after the

expiration of the three years, on 29 September 1889, because the notice could not be given until after the expiration of the term of three years; and, inasmuch

as it had to expire on the same day as the tenancy commenced, that would bring it to the end of the fourth year. Bowen LJ said (61 LT 729, at p 730), quite

shortly, that on that point he entirely agreed with Lord Coleridge LCJ.

The reasoning in that decision was adopted by Eve J, in Re Lancashire and Yorkshire Bank’s Lease. That was the case of a lease for a term of five years

from 25 March 1911, and it contained a proviso that:

‘… after the expiration of the first three years of the term hereby granted, if the lessees shall desire to determine this lease, and shall give to the

lessors six calendar months’ previous notice in writing of such their desire, such notice to determine on any quarter day, and shall, up to the time of such

determination, pay the rent and perform and observe the covenants on their part hereinbefore contained, then and immediately 􀂭 21􀀉 on the expiration

of such notice this present demise and everything herein contained shall cease and be void.’

In that case the three years expired, as will be seen, on 25 March 1914; it had to be a six months’ notice; and on 14 November 1913 (and, therefore, before the

expiration of the three years):

‘… the plaintiffs gave notice in writing to the defendants that it was their intention to quit and deliver up possession of the premises on June 24,

1914.’

The case was held to be indistinguishable from Gardner v Ingram; the notice in question was held to be invalid; and Eve J, in dealing with the matter

pointed out that the notice purporting to determine the tenancy on 24 June 1914—which was at the expiration of one quarter only after three years, and did not

allow for a six months’ notice after the expiration of three years—was bad. In other words, the judge said that the notice given after the expiration of the first

three years must be given after the expiration of those three years—the language makes that quite plain. Whether, therefore, I look at the matter from the point

of view of the literal meaning of the clause or in the light of authority, I reach the same result.

It is true that it was suggested to me by counsel for the defendants that even the habendum upon which counsel for the plaintiffs relies was by no means

clearly in the plaintiff’s favour, for it was not for a term of two years and for one period, but it was for a period of two years “and thereafter for consecutive

periods of two quarters.” I think counsel for the defendants desired me to infer from that that there must be at least two of these periods. I cannot accept that

argument because I think the word “periods” there is used in the ordinary way to cover the case of one period or more, according to when the notice came to

be given. That point, however, in my view it is unnecessary for me to decide because I found my judgment in this case upon the other grounds to which I have

referred.

The argument put forward by counsel for the plaintiffs really amounts to this, that I am to read cl 6 as though, instead of as it does read, it were altered in

two ways. The first is that it should be read as though it were worded:

‘If either party shall desire to determine this lease on or after June 24, 1945, and shall give to the other of them two quarters’ previous notice in

writing.’

Even then it would not be strictly accurate grammatically, for in that event there should be the further alteration so as to have the appropriate grammar that it

should be also altered to read:

‘… and shall have given to the other of them two quarters’ previous notice in writing.’

There can be no doubt that if cl 6 had been framed in those terms, it would have been open to the plaintiffs in this case to give notice which determined on 24

June 1945; but in fact the language is not that. The language is that which I have read at the beginning of this judgment, and, interpreting that language

literally, there must be judgment for the defendants with costs.

Judgment for the defendants with costs.

Solicitors: Clifford-Turner & Co (for the plaintiffs); Edward Montague Lazarus & Son (for the defendants).

R Boswell Esq Barrister.

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[1946] 1 All ER 23