LAINE v CADWALLADER [2000] EWCA Civ 5562

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE OVEREND
(Plymouth County Court)
[2000] EWCA Civ 5562Case No Case No B2/1999/0669Venue Royal Courts of Justice, Strand, London WC2
Between
LAINEAppellantCADWALLADERRespondent
Before
Mr Justice David SteelMR ALEX TROUP (Instructed by Hugh James Ford Simey of Exeter) appeared on behalf of the AppellantThe Respondent was not represented and did not attendDate 26 May 2000

LORD JUSTICE KENNEDY :

This

[1]is an appeal from the decision of Judge Overend who, on 26th May 1999, at Plymouth County Court dismissed the claimant's appeal against part of the judgment of District Judge Child dated 28th April 1999 but gave permission to appeal.[2]The claimants Mrs Sandra Laine and her daughter Jaymie Mitchell - and they are both now claimants having regard to the leave we gave this morning for Jaymie Mitchell to be added as the second claimant - on 21st January 1998 granted to the defendants, Mr and Mrs Cadwallader, an assured shorthold tenancy of the dwelling house known as 15 Fletemore Road, St Budeaux. The agreement was in standard form and was for a term certain of six months from 19th January 1998 to 19th July 1998, and the rent was expressed to be £390 "per calendar month payable every two months in advance".[3]Clause 5 of the agreement read:
"This agreement may be brought to an end (but not earlier than the expiry of the term certain) by the tenant giving to the landlord at least one calendar month's written notice."
[4]That term was, on the face of it, strangely worded because an agreement for a term certain does not have to be bought to an end after the end of the term certain. It has already expired. But what the contracting parties clearly had in mind was the possibility that the tenant might remain in possession after the end of the term certain. That is what happened. Eventually the tenants left. On 10th September 1998 the keys were put through Mrs Laine's letter box. At that time there were arrears of rent, and it appears from the amended particulars of claim that there was damage to the premises and to the contents.[5]In these proceedings the first claimant originally sought to recover, first of all, the arrears of rent; secondly, the cost of putting right the damage; and, thirdly, four weeks' rent in lieu of notice claimed as £360 because it was four weeks rather than a full calendar month. The first claimant was successful before the district judge in relation to the first two heads of claim so no more needs to be said about those matters. But the district judge and, on appeal, the circuit judge refused to award rent in lieu of notice. That is the issue which arises for reconsideration in this appeal.[6]On the expiration of the term certain the tenants acquired an assured tenancy under the Housing Act 1988. Section 5 (2) of that Act, so far as relevant, provides that:
"If an assured tenancy which is a fixed term tenancy comes to an end.....then.....the tenant shall be entitled to remain in possession of the dwelling house let under that tenancy and.....his right to possession shall depend on a periodic tenancy arising by virtue of this section."
[7]That such a periodic tenancy is also an assured tenancy is evident from Section 19A which, so far as material, states that - "An assured tenancy which (a)..... (b) comes into being by virtue of Section 5 above on the coming to an end of an assured tenancy is an assured tenancy."[8]Section 5 (3) states that the new assured periodic tenancy or statutory periodic tenancy (see Section 5 (7)) is one which takes effect at the end of the fixed term tenancy. It is deemed to have been granted by the landlord at the end of the fixed term to whoever was then the tenant. The dwelling house is the same - "(d) ..... the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and (e).....the other terms are the same as those of the fixed term tenancy immediately before it came to an end except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy."[9]I agree with Judge Overend that if (contrary to my belief) Clause 5 of the tenancy agreement can be construed as being available for use after the end of the term certain then Section 5 (3) (e) of the 1988 Act renders it ineffective. That leaves open the question of how, if at all, the statutory periodic tenancy can be determined other than by agreement or by order of the court.[10]Clearly, a statutory periodic tenancy created by Section 5 of the 1988 Act is a periodic tenancy and any periodic tenancy may be determined by notice to quit given by the landlord. As

Lord Justice Nicholls said in Javad v Mohammed Aqil (1991) 1 WLR 1007 at 1009 B:

"A periodic tenancy is one which continues from period to period until determined by proper notice."
[11]So, as those words make clear, for a tenant to terminate a periodic tenancy notice is required. As to the length of the notice required, the principle which generally applies, and which would be applicable in this case, is that the notice should be equal to at least a period of the tenancy and expiring at the end of the period of the tenancy (see Hill & Redman's Law of Landlord & Tenant, Vol 1 A 8127).[12]The periods of the tenancy are defined by Section 5 (3) (d) as being those "for which rent was last payable under the fixed term tenancy". Stressing the words "for which", it seems to me that the periods were calendar months because the rent was fixed at £390 per calendar month. The fact that it was payable every two months in advance was only a provision as to time of payment which, for present purposes, is not material. If, under the fixed term tenancy, the periods for which rent was last payable had been less than four weeks then it would be necessary to have regard to Section 5 (1) of the Protection from Eviction Act 1977 which, so far as material, provides that - ".....no notice by a tenant to quit any premises let as a dwelling shall be valid unless (a) it is in writing and contains such information as may be prescribed, and - (b) it is given not less than four weeks before the date in which it is to take effect."[13]In the present case the judge, having rightly concluded that the landlord could not rely on Clause 5 of the tenancy agreement, seems to have overlooked the tenant's obligation to serve notice to quit if he wishes unilaterally to determine a periodic tenancy, an obligation which is not ousted by any statutory provision in the Housing Act 1988. By contrast, a landlord cannot unilaterally determine a periodic tenancy created by Section 5 of the 1988 Act because Section 5 (1) expressly provides that an assured tenancy" cannot be brought to an end by the landlord except by obtaining an order of the court".[14]In fairness to the judge it should be pointed out that before him Mrs Laine appeared in person, the defendants were not represented, and his attention was probably not invited to page 206 of volume 3 of Megarry & Fancourt on the Rent Acts, where this topic is most helpfully considered.[15]Of course, a tenant does not have to give notice if his landlord agrees to accept with immediate effect the tenant's offer to surrender his statutory periodic tenancy, and if the tenant delivers back to the landlord the keys of the dwelling house which was the subject matter of the tenancy, that, dependent on the circumstance, may amount to an offer to surrender which the landlord is then free to accept or reject.[16]As to what happened on 10th September 1998 when the keys were put through Mrs Laine's letter box,

the judge said:

"So there was, therefore, a surrender on that day."
[17]In terms of everyday speech that observation of the judge is understandable, but legally the dropping in of the keys cannot have constituted more than an offer to surrender which the landlords were free to accept or reject. It seems clear that there was no express acceptance of the offer so as to terminate the tenancy with immediate effect. The landlords seem to have regarded the dropping in of the keys as informal notice to quit or an offer to terminate. They seem to have agreed to terminate the tenancy at the end of the minimum period for which a proper notice could have been given (see the contents of the amended particulars of claim). So long as neither they nor the tenant did anything which could be said to have altered the position during the ensuing four weeks and the evidence, so far as it goes, does not suggest that there was any relevant development during that period, I see no reason why the court should not now regard the tenancy as having terminated by agreement when the landlords agreed that it would terminate, namely four weeks after they received the keys. The result is that they are, as claimed, entitled to recover rent for that four-week period which is the issue in this appeal. For those reasons I would allow the appeal.

MR JUSTICE STEEL : I agree.

Order

Appeal allowed

Cited in 1 later judgment