British Iron & Steel Corporation Ltd v Halpern

 

British Iron & Steel Corporation Ltd v Halpern

LANDLORD AND TENANT; Leases

KING’S BENCH DIVISION

LEWIS J

14 DECEMBER 1945

Landlord and tenant – Notice to quit – Lease for fixed term then quarterly – Notice served before expiration of fixed term – Validity.

The defendant held certain premises under a lease from the plaintiff for a term of 2 years from 24 June 1943, and then quarterly, subject to 3 calendar months’

notice on either side, expiring on any quarter day. The plaintiff, on 21 June 1945, served on the defendant notice to quit the premises on 29 September 1945.

In an action by the plaintiff to recover possession of the premises, it was contended on behalf of the defendant, that the plaintiff was not entitled to give notice

before the expiration of the fixed term of 2 years:—

Held – Although the notice was in a sense too early it might have been given on 28 June 1945, to expire on 29 September 1945, and was therefore a valid

notice to quit.

Herron v Martin followed.

Gardner v Ingram and Re Lancashire and Yorkshire Bank’s Lease, Davis (W) & Son v Lancashire and Yorkshire Bank distinguished.

􀂭 408􀀉

Notes

It was held in Gardner v Ingram and Re Lancashire & Yorkshire Bank’s Lease that where a term of five years is determinable by notice after the expiration of

three years, the term cannot be determined except by a notice given after the expiration of the three years. On the other hand, it was held inHerron v Martin,

in which the above cases were apparently not considered, that when the term was for three years and so on from year to year, determinable by one year’s

notice to quit, notice given before the expiration of the three years was valid. In the case under consideration Lewis J, holds that the notice, although given too

early, was valid by reason of the decision in Herron v Martin.

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

5847–5853.

Cases referred to in judgment

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Herron v Martin (1911), 27 TLR 431, 31 Digest 440, 5865.

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 LJ Ch 577, 110 LT 571.

Action

Action to recover possession of leasehold premises. The facts are fully set out in the judgment.

L Horniman for the plaintiff.

A Safford for the defendant.

14 December 1945. The following judgment was delivered.

LEWIS J. This is a case which raises some difficulty on the proper construction of a clause in a lease dated 1 September 1943, by which one Samuel Waller,

as lessor, let to the defendant, as lessee, part of certain premises situated at No 7, Park Lane, in the county of London:

‘To hold the same unto the lessee for the term of two years from the 24th day of June one thousand nine hundred and forty three and then quarterly

subject to three calendar months’ notice on either side expiring on any quarter day.’

Under the terms of that lease the defendant went into possession, and before the 2 years contemplated by that lease, namely, 24 June 1945, had expired,

the lessor assigned the premises, together with others, to the present plaintiffs, and thereby the present plaintiffs have the right to bring this action, which is for

an order for possession of the premises together with mesne profits at the rate of £375 per annum from 29 September 1945.

What happened was this. On 21 June 1945, a notice was served on the defendant, as follows:

‘I hereby give you notice to quit and deliver up to me or to whom I may appoint on Sept. 29, 1945, possession of the premises at 7, Park Lane, in the

city of Westminster, being office No. 3 on the third floor which you hold of me as tenant. Dated this 21st day of June, 1945.’

The reply to that letter was on 19 July 1945, when the solicitors to the defendant wrote:

‘Our client Mr. Halpern has sent us your letter of the 20th ultimo enclosing a notice to quit. We would point out however that the notice is not in

order as our client was a quarterly tenant from June 24 and the earliest date on which notice can be given is for Dec. 25 next. You will appreciate that

our client will be put to serious inconvenience under present conditions and we shall be glad to know whether you have any other offices available as

intimated in your letter.’

The lessee has remained in possession in the meantime, hence this action.

It is said on behalf of the plaintiffs that this case is covered by Herron v Martin, which was decided by Darling J. The headnote reads:

‘By an agreement a farm was let to the defendants for a period of 3 years commencing on Mar. 25, 1907, and so on from year to year until the

tenancy should be determined by either party giving to the other one year’s notice in writing. On Mar. 21, 1910, the plaintiffs gave the defendant a

notice to quit on Mar. 25, 1911:—Held: the notice so given was good.’

Unfortunately there is not a very full report of that case, and, as has been said by counsel for the defendant, with perfect truth, it does not appear from that

report that two cases, or certainly one case, upon which counsel relies in this case, was ever mentioned to Darling J. It certainly appears that Darling J’s

􀂭 409􀀉 attention was not called to Gardner v Ingram. According to that report, Darling J gave no reasoned judgment but, after hearing counsel for the

plaintiffs and for the defendants, said (27 TLR at p 431):

‘There seems to be no definite authority, but I think you are right. There will be judgment for possession, but leave to appeal.’

There is no further report upon that case, but it is conceded that that case was, on 17 May 1911, approved by the Court of Appeal. Whether the Court of

Appeal had the case of Gardner v Ingram before them, I do not know, but the Court of Appeal has said that the decision of Darling J in the case of Herron v

Martin was right: see Foa on Landlord & Tenant, 6th Ed., p 119.

What is said on the other side is, that you cannot deal in a case of this sort with a clause in the terms of the present lease, and give a notice to quit until the

“original term“—if I may use that expression—has expired. This term of 2 years expired on 23 June 1945, and before that time a notice was given, namely, on

21 June to terminate the agreement in September. The clause does not provide that one quarter’s notice should be given, but that 3 calendar months’ notice

should be given. Therefore, other things being equal, notice would be given on 28 June as 3 calendar months’ notice was required, and not a quarterly notice,

and counsel for the defendants has pointed out that Gardner v Ingram says that in these circumstances such a notice as was given in this case is wrong.

Gardner v Ingram deals with a lease for 5 years, and the headnote reads as follows:

‘By an agreement for a lease for 5 years it was provided that the tenancy might be determined “after the expiration of 3 years out of the 5 years” by

6 months’ notice in writing at the corresponding quarter day at which the tenancy commenced. The tenant entered into possession on Sept. 29, 1885,

and on Mar. 23, 1888, gave notice to the landlord in the following terms: “Kindly take notice that I intend to surrender to you the tenancy of this house

on or before Sept. 29, 1888”:—Held: the notice to quit was equivocal in its terms, and therefore bad.’

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Pausing there a moment, the judgments given by Lord Coleridge LCJ, and Bowen LJ deal more particularly with the first point, namely that the notice

was equivocal, but Lord Coleridge LCJ, with the agreement of Bowen LJ who did not give any reasons, seems to have said that on the terms of that clause the

agreement was for a term of 4 years certain. The clause, which is set out in full on p 729 of the report, is this:

‘The tenancy might be determined after the expiration of the term of 3 years out of the term of 5 years hereinbefore mentioned by 6 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.’

The case having been argued, Lord Coleridge LCJ, said in the course of his judgment:

‘Mr. Cross relied on the case of Thompson v. Maberly, where LORD ELLENBOROUGH, C.J., stated that if premises are taken for “twelve months

certain and six months’ notice to quit afterwards,” the tenancy may be determined by a six months’ notice expiring at the end of the first year. That case

is not, however, quite satisfactory, as it appears to have been decided on the meaning of the word certain, 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 & Another 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.’

That is the reasoning by which Lord Coleridge LCJ, came to the conclusion that the agreement was, in fact, for 4 years certain.

That case was followed by Eve J in the Lancashire & Yorkshire Bank’s Lease case. The head-note reads:

‘By a lease dated Feb. 21, 1911, certain premises were demised by the defendants to the plaintiffs for a term of five years from Mar. 25, 1911, at a

yearly rent of £225 to be paid by equal quarterly payments on the usual quarter days. The lease contained a proviso that “after the expiration of the first

three years of the term hereby granted, if the lessees so desire to determine this lease, and shall give to the lessors six calendar months’ previous notice

in writing of such desire, such notice to determine on any quarter day … then and immediately on the expiration of such notice this present demise shall

cease and be void.” On Nov. 14, 1913, the plaintiffs gave notice in writing to the defendants that it was their intention to quit and deliver up possession

of the 􀂭 410􀀉 premises on June 24, 1914. On a summons taken out by the plaintiffs to determine whether the notice was good:—Held: the case was

indistinguishable from Gardner v. Ingram and the notice in question was invalid. The earliest day on which the lease could be terminated was Sept. 29,

1914.’

Eve J said ([1914] 1 Ch 522 at p 525):

‘If this question of construction were free from authority, I am by no means certain that my decision would take the form which, since there is

authority upon the point, I feel that it must take. I think, after a careful examination of the proviso in the lease here, it is impossible to distinguish this

case from that of Gardner v. Ingram, upon which Mr. Rutherford relies. I need not read the proviso over again, but it comes, I think, to this, that the

term thereby created shall cease and determine if, after the expiration of the first three years thereof, the lessees shall so wish, and shall give to the

lessors six calendar months’ notice in writing of that wish, and then, in their favour, there is added this, that such notice need not expire on the

anniversary of the day on which the tenancy commenced, but may expire on any one of the usual quarter days. So read the clause in this lease is

indistinguishable from the clause construed in Gardner v. Ingram by LORD COLERIDGE, C.J., and BOWEN, L.J.’

Then he deals with Gardner v Ingram and says at the end of his judgment ([1914] 1 Ch 522 at p 526):

‘For these reasons I come to the conclusion that the contention of the landlords here is right, and that, on the summons, I must hold that the notice

purporting to determine this tenancy on June 24, 1914, is invalid, and that the earliest date on which the lessees can determine the tenancy is Sept. 29,

1914. The costs must follow the results.’

Those two cases are relied upon by counsel for the defendant, and he says the present case is on all fours with that case, and that I ought to follow the

case tried by Eve J who followed Gardner v Ingram.

I do not think this case is distinguishable from Herron v Martin but I do think there is a distinction between the effect of the clause in this case and the

clause in Gardner v Ingram (2) and the clause in the Lancashire & Yorkshire Bank’s Lease case. I think this clause means this: This lease is for 2 years, and

after the expiration of 2 years the lessee may continue to occupy the premises on a quarterly basis, and if a quarter’s notice is given to determine after the 2

years, then that is a good notice—assuming that the length of the notice is 3 calendar months after the expiration of the 2 years’ term—and, therefore, although

the notice was given on 21 June and it was given in one sense, too early, it might have been given on 28 June to expire in September and I think that is the

distinction between this case and the case of Gardner v Ingram upon which reliance is placed.

I must decide in favour of the plaintiffs. There will be an order for possession and costs.

Judgment for plaintiff with costs.

Solicitors: Allen & Overy (for the plaintiff); Emanuel, Round & Nathan (for the defendant).

R Boswell Esq Barrister.

[1946] 1 All ER 411

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