Hammersmith & Fulham LBC v Monk [1991] UKHL 6

House of Lords

Between

Hammersmith & Fulham LBCAppellant

MonkRespondent

Before

Lord Bridge of Harwich

Date 5 December 1991

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 12th day of October 1990 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the costs of the respondents in this House be paid out of the Legal Aid Fund in accordance with section 18 of the Legal Aid Act 1988, such order to be suspended for four weeks to allow the Legal Aid Board to object if they wish: And it is also further Ordered, That the costs of the appellant be taxed in accordance with the Legal Aid Act 1988.

Cler: Parliamentor:

Judgment: 5 December 1991

HOUSE OF LORDS

MAYOR ETC. OF THE LONDON BOROUGH OF HAMMERSMITH

AND FULHAM (RESPONDENTS)

MONK (A.P.) (APPELLANT)

Lord Bridge of Harwich Lord Brandon of Oakbrook Lord Ackner Lord Jauncey of Tullichettle Lord Browne-Wilkinson

LORD BRIDGE OF HARWICH

My Lords,

The issue in this appeal is whether a periodic tenancy held by two or more tenants jointly can be brought to an end by a notice to quit by one of the joint tenants without the consent of the others. It arises for determination in the following circumstances. The appellant, Mr. Monk, and Mrs. Powell were granted by the respondent local authority a weekly tenancy of a flat at 35 Niton Street, London S.W.6 where they co-habited. The tenancy was terminable by four weeks' notice to expire on a Monday. In 1988 Mr. Monk and Mrs. Powell fell out and Mrs. Powell left the flat. She consulted the respondent, who agreed to re-house her if she would terminate the tenancy of the flat by giving an appropriate notice, which she did. The notice was given without Mr. Monk's knowledge or consent but the respondent immediately notified him that the tenancy had been determined and in due course brought proceedings in the West London County Court to recover possession. Judge Roger Cooke held that Mrs. Powell's notice to quit was ineffective to determine the tenancy and dismissed the claim. The Court of Appeal (Slade, Nicholls and Bingham L.JJ.) (1990) 61 P. & C.R. 414 allowed the respondent's appeal and made an order for possession. Mr. Monk now appeals by leave of your Lordships' House.

In a previous decision of the Court of Appeal, Greenwich London Borough Council v. McGrady (1982) 46 P. & C.R. 223 , it was held that a notice to quit given by one of two joint tenants without the consent of the other was effective to determine the periodic tenancy to which it related. Much of the argument before the Court of Appeal in the present case was directed to the question whether the court was free to reach a conclusion at variance with McGrady on the grounds:(1) that an earlier decision of the Court of Appeal, Howson v. Buxton (1928) 97 L.J.K.B. 749, was, as the judge had held, binding authority to the opposite effect; or

(2) that, in any event, the decision in McGrady was given per incuriam. The judgment of Slade L.J., with which Bingham L.J. agreed, examined these issues very thoroughly and

reached the conclusion that Howson v. Buxton was not authority for the proposition sought to be derived from it and that McGrady was binding on the court. Nicholls L.J. approached the issue more radically and held, both on principle and in reliance on a long line of authority prior to the decision in McGrady, that a joint periodic, tenancy could be determined by a notice to quit given by one joint tenant.

Your Lordships are not technically bound by any previous decision and before examining the relevant authorities I think it helpful to consider whether the application of first principles suggests the answer to the question at issue. For a large part of this century there have been many categories of tenancy of property occupied for agricultural, residential and commercial purposes where the legislature has intervened to confer upon tenants extra-contractual rights entitling them to continue in occupation without the consent of the landlord, either after the expiry of a contractual lease for a fixed term or after notice to quit given by the landlord to determine a contractual periodic tenancy. It is primarily in relation to joint tenancies in these categories that the question whether or not notice to quit given by one or the joint tenants can determine the tenancy is of practical importance, particularly where, as in the instant case, the effect of the determination will be to deprive the other joint tenant of statutory protection. This may appear an untoward result and may consequently provoke a certain reluctance to hold that the law can permit one of two joint tenants unilaterally to deprive his co- tenant of "rights" which both are equally entitled to enjoy. But the statutory consequences are in truth of no relevance to the question which your Lordships have to decide. That question is whether, at common law, a contractual periodic tenancy granted to two or more joint tenants is incapable of termination by a tenant's notice to quit unless it is served with the concurrence of all the joint tenants. That is the proposition which the appellant must establish in order to succeed.

As a matter of principle I see no reason why this question should receive any different answer in the context of the contractual relationship of landlord and tenant than that which it would receive in any other contractual context. If A and B contract with C on terms which are to continue in operation for one year in the first place and thereafter from year to year unless determined by notice at the end of the first or any subsequent year, neither A nor B has bound himself contractually for longer than one year. To hold that A could not determine the contract at the end of any year without the concurrence of B and vice versa would pre-suppose that each had assumed a potentially irrevocable contractual obligation for the duration of their joint lives, which, whatever the nature of the contractual obligations undertaken , would be such an improbable intention to impute to the parties that nothing less than the clearest express contractual language would suffice to manifest it. Hence, in any ordinary agreement for an initial term which is to continue for successive terms unless determined by notice, the obvious inference is that the agreement is intended to continue beyond the initial term only if and so long as all parties to the agreement are willing that it should do so. In a common law situation, where parties are free to contract as they wish and are bound only so far as they have agreed to be bound, this leads to the only sensible result.

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Thus the application of ordinary contractual principles leads me to expect that a periodic tenancy granted to two or more joint tenants must be terminable at common law by an appropriate notice to quit given by any one of them whether or not the others are prepared to concur. But I turn now to the authorities to see whether there is any principle of the English Law of real property and peculiar to the contractual relationship of landlord and tenant which refutes that expectation or whether the authorities confirm it. A useful starting point is the following passage from Blackstone's Commentaries, Book II, Chapter 9, pp. 145-147, which explains clearly how the law developed the concept of a yearly tenancy from the earlier concept of a tenancy at will which gave The tenant no security of tenure:

"The second species of estates not freehold are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; for that the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant, so that either of them may determine his will, and quit his connextions with the other at his own pleasure. Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits. And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land.

" . . .

"The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before-mentioned; and, by a parity of reason, the lessee after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils . And, if rent be payable quarterly or half- yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year. And, upon the same principle, courts of law have of late years leant as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved: in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other."

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I have added emphasis to the phrase "from year to year so long as both parties please" because in its Latin version "de anno in annum quamdiu ambabus partibus placuerit" this same phrase is used repeatedly in a passage from Bacon's Abridgment, 7th edition, which has always been treated as of the highest authority, as apt to describe the essential characteristics of a yearly tenancy.

Hence, from the earliest times a yearly tenancy has been an estate which continued only so long as it was the will of both parties that it should continue, albeit that either party could only signify his unwillingness that the tenancy should continue beyond the end of any year by giving the appropriate advance notice to that effect. Applying this principle to the case of a yearly tenancy where either the lessor's or the lessee's interest is held jointly by two or more parties, logic seems to me to dictate the conclusion that the will of all the joint parties is necessary to the continuance of the interest.

In Doe d . Aslin v. Summersett (1830) 1 B. & Ad. 135, the freehold interest in land let on a yearly tenancy was vested jointly in four executors of a will to whom the land had been jointly devised. Three only of the executors gave notice to the tenant to quit. It was held by the Court of King's Bench that the notice was effective to determine the tenancy. Delivering the judgment, Lord Tenterden C.J . said at pp. 140-141:

"Upon a joint demise by joint-tenants upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please: and as soon as any one of the joint-tenants gives a notice to quit, he effectually puts an end to that tenancy: the tenant has a right upon such a notice to give up the whole, and unless he comes to a new arrangement with the other joint-tenants as to their shares, he is compellable so to do. The hardship upon the tenant, if he were not entitled to treat a notice from one as putting an end to the tenancy as to the whole, is obvious; for however willing a man might be to be sole tenant of an estate, it is not very likely he should be willing to hold undivided shares of it: and if upon such a notice the tenant is entitled to treat it as putting an end to the tenancy as to the whole, the other joint-tenants must have the same right. It cannot be optional on one side, and on one side only."

Now it was rightly pointed out in argument that part of the reasoning in this passage was dictated by considerations derived from the incidents of joint land tenure at law which were swept away by the reforming legislation of 1925. But this can in no way detract from the validity of the proposition emphasised in the judgment that the yearly tenant of a property let to him by joint freeholders "holds the whole of all so long as he and all shall please." This by itself is a sufficient and independent ground for the conclusion of the court that notice to quit by any one joint freeholder was effective to determine the tenancy. Precisely the same reasoning would apply to the operation of a notice to quit by one of two or more joint yearly tenants.

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Summersett's case was followed in Doe d. Kindersley v. Hughes (1840) 7 M. & W. 139 and Alford v.Vickery (1842) Car. & M. 280, both cases in which the validity of a notice to determine a yearly tenancy given to the tenant without the concurrence of one or more of the joint landlords was affirmed. It is interesting that throughout the 19th century there is no reported case in the books where the effect of a notice to quit given by one of two or more joint holders of the tenant's interest under a yearly or other periodic tenancy was ever called in question. I do not however find this surprising . The law was probably regarded as settled after Summersett's case, but, in any event, before the advent of statutory protection of tenants' rights of occupation, in the case of a notice to quit given by one of two or more joint periodic tenants the parties would in most cases have had little incentive to litigate. If the landlord was content that the other tenants should remain, there would have been nothing to litigate about. If the landlord wished to recover possession, he could do so by giving his own notice to quit.

In this century the English cases directly in point are Howson v. Buxton (1928) 97 L.J.K.B. 749, Leek and Moorlands Building Society v. Clark [1952] 2 Q.B. 788 and Greenwich London Borough Council v. McGrady (1932) 46 P. &. C.R. 223. I will defer consideration of Howson v. Buxton until later. In Leek and Moorlands Building Society v. Clark the point directly in issue was whether one of two joint lessees could validly surrender the lease before the full period of the lease had run without the concurrence of the other joint lessee. Delivering the reserved judgment of the court in favour of the defendant lessees Somervell L.J. said at pp. 792-793:

"Counsel for the plaintiffs sought to rely on Doe d. Aslin v. Summersett as supporting a submission that Mr. Ellison, by what he did, had brought the joint tenancy to an end. That case was dealing with a lessee from year to year of land which he held from two joint lessors. A notice to quit was served signed by one only of the joint lessors. It was argued that the other lessor had adopted the notice, but Lord Tenterden, who delivered the judgment of the Court of King's Bench, held that without any such adoption a notice to quit by one of the joint lessors, who were joint tenants, put an end to the tenancy as to both.

"The ratio of the decision is, we think, to be found in the following sentence:

'Upon a joint demise by joint tenants' - that is, the lessors in that case - 'upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please, and as soon as any one of the joint tenants' that is, the lessors in that case - 'gives a notice to quit, he effectively puts an end to that tenancy.'

It is to be noted that Lord Tenterden was dealing with a notice to quit in respect of a periodic tenancy. He was not dealing with a right to determine a lease for say 21 years at the end, say, of the seventh or fourteenth year. Nor was he dealing with surrender.

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"There is, we think, force in the submission made on behalf of the plaintiffs, that in the case of a periodic tenancy Lord Tenterden's principle would apply when there were joint lessees. A periodic tenancy continues from period to period unless the notice agreed or implied by law is given. But if one of two joint lessees who 'hold the whole' wishes it not to continue beyond the end of a period, it might well be held that it did not continue into a new period. That would happen only if all, that is, the joint lessees, shall please .

''If one considers a lease to joint lessees for a term certain with a right of renewal, it would be obvious, we think, that both must join in requiring a renewal. A periodic tenancy renews itself unless either side brings it to an end. But if one of two or more joint lessees does not desire it to continue, . we would have thought that it was in accordance with Lord Tenterden's principle, and with common sense, that he should be able to make that effective."

The judgment adds at pp. 794-795:

" Even if we are wrong in what we have said with regard to a right to determine within the period of the lease as distinct from a right to terminate a periodic tenancy, we would have thought it plain that one of two joint lessees cannot, in the absence of express words or authority, surrender the rights held jointly. If property or rights are held jointly, prima facie a transfer must be by or under the authority of all interested. The answer suggested to this is the principle laid down in Doe d. Aslin v. Summersett. That case, for reasons which we have given, is not in our view an exception to the rule we have just stated. It is an illustration, in a highly technical field, of the general principle that if a joint enterprise is due to terminate on a particular day, all concerned must agree if it is to be renewed or continued beyond that day. To use Lord Tenterden's phrase, it will only be continued if 'all shall please ."'

In the Greenwich case the point at issue was precisely the same as in the present appeal. After citing the judgment of the court in the Leek & Moorlands Building Society v. Clark. Sir John Donaldson M.R. said, at p. 224:

"In my judgment, it is clear law that, if there is to be a surrender of a joint tenancy - that is, a surrender before its natural termination - then all must agree to the surrender, if there is to be a renewal, which is the position at the end of each period of a periodic tenancy, then again all must concur. In this case. Mrs. McGrady made it quite clear by her notice to quit that she was not content to renew the joint tenancy on and after June 15, 1981. That left Mr. McGrady without any tenancy at all, although it was faintly argued by Mr. Osman that on, as he put it, the severance of a joint tenancy the joint tenant who did not concur was left with a sole tenancy. That cannot be the law, and no authority has been cited in support of it.

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"The only point that remains is whether Mr. McGrady is entitled to the protection of the Act of 1980 on the ground that what ' was a secure contractual tenancy has been brought to an end. The short answer to that is that the Act of 1980 operates to give security where landlords give notice to quit ; it does not give security where tenants give notice to quit."

In the instant case it has not been suggested either that the notice to quit given by Mrs. Powell could have had the effect of "severing" the joint tenancy and leaving Mr. Monk in possession as sole tenant or that, if Mrs. Powell's notice was effective, Mr. Monk was entitled to any statutory protection.

To this formidable body of English authority which supports the conclusion reached by the Court of Appeal there must be added the decision of the Court of Session in Smith v. Grayton Estates Ltd. 1960 S.C. 249 which shows that Scottish law, although using different terminology, applies essentially the same principle to give the same answer to the same question. The issue in the case was whether a tenancy continuing from year to year after the expiry of a fixed term by virtue of the Agricultural Holdings (Scotland) Act 1949 was determined by notice given by one of two joint tenants. Lord President Clyde said, at pp. 354-355:

"In considering this matter, it is of importance to realise that in the present case the tenants were occupying under tacit relocation, in other words, that the tenancy was being prolonged from year to year beyond the stipulated term in the lease, but that otherwise the conditions in the lease continued to operate - see Rankine, Law of Leases, p. 601; Cowe v. Millar, reported only in Connell on The Agricultural Holdings (Scotland) Act 1923, p. 346, per Lord President Clyde at p. 355. The question comes to be whether, in that situation, a timeous notice by one of the two joint tenants is invalid to bring the tenancy to an end. The argument for the appellant was that a valid notice must be from both the joint tenants, and this notice, not being a joint one, consequently is bad.

'"But, is I see it, this argument overlooks the meaning and effect of tacit relocation. Tacit relocation is not an indefinite prolongation of a lease. It is the prolongation each year of the tenancy for a further one year, if the actings of the parties to the lease show that they are consenting to this prolongation. For, as in all contracts, a tacit relocation or reletting must be based on consent. In the case of tacit relocation the law implies that consent if all the parties are silent in the matter. Hence, where there are joint tenants, tacit consent by both of them is necessary to secure the prolongation and to enable tacit relocation to operate. Silence by both is necessary to presume that both the tenants wish the tenancy to continue for another year. On the other hand, if both are not silent, and if one gives due notice of termination, the consent necessary for tacit relocation to operate is demonstrably not present, and tacit relocation will not operate beyond the date of termination in the notice. Clearly, in the present case, there is not such tacit consent, and, in my view, a

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notice by one of the two joint tenants is enough to exclude the further operation of tacit relocation.

Lord Sorn, at p. 356, is to the like effect.

These then are the principles and the authorities which the appellant seeks to controvert. In the light of the careful analysis in the judgment of Slade L.J. of Howson v. Buxton. which I gratefully adopt and need not repeat, it is now rightly accepted that the case affords no greater support for the appellant than can be derived from the obiter dictum of Scrutun L.J. who said with reference to a notice to determine a yearly tenancy, at p. 752:

"I personally take the view that one joint tenant cannot give a notice to terminate the tenancy unless he does so with the authority of the other joint tenant . . ."

"Despite the eminence of the author of this observation, I do not feel able to give any weight to it in the absence of any indication of the reasoning on which it is based.

There are three principal strands in the argument advanced for the appellant. "First, reliance is placed on the judgment in Candy v. Jubber (1865) 9 B. & S. 15, for the proposition that a tenancy from year to year, however long it continues, is a single term, not a series of separate lettings. The case arose out of an action for damages by a plaintiff who had been injured by a defective iron grating which was out of repair so as to amount to a nuisance. The property was occupied by a yearly tenant but the claim was brought against the reversioner, who was held liable by the Court of Queen's Bench. The defendant appealed to the Court of Exchequer Chamber on the ground that it was not alleged that the defendant knew of the nuisance, nor that it had existed prior to the commencement of the yearly tenancy. The argument is reported at 5 B. & S. 485. Judgment was reserved, but before it was delivered the case was settled and Erle C.J. announced:

"It will not be necessary to deliver the judgment we have prepared."

The undelivered Judgment in the defendant's favour is nevertheless reported at 9 B. & S. 15 and has always been regarded as authoritative. The passage relied on reads:

"There frequently is an actual demise from year to year so long as both parties please. The nature of this tenancy is discussed in 4 Bac. Arb. tit. Leases and Terms for Years, pp. 838, 839. 7th Ed., and this article has always been deemed to be the highest authority being said to be the work of Chief Baron Gilbert. It seems clear that the learned author considered that the true nature of such a tenancy is that it is a lease for two years certain, and that every year after it is a springing interest arising upon the first contract and parcel of it, so that if the lessee occupies for a number of years, these years, by computation from time past, makes an entire lease for so many years, and after the commencement of each new year it becomes an entire lease certain for the years past and also for the years entered on, and that it is not a reletting at the

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commencement of the third and subsequent years. We think this is the true nature of a tenancy from year to year created by express words, and that there is not in contemplation of law a recommencing or reletting at the beginning of each year".

It must follow from this principle, Mr. Reid submits, that the determination of a periodic tenancy by notice is in all respects analogous to the determination of a lease for a fixed term in the exercise of a break clause, which in the case of joint lessees clearly requires the concurrence of all. But reference to the passage from Bacon's Abridgment, 7th Ed., at p. 839 on which the reasoning is founded shows that this analogy is not valid. The relevant passage reads:

"A parol lease was made de anno in annum, quamdiu ambabus partibus placuerit; it was adjudged that this was but a lease for a year certain, and that every year after it was a springing interest, arising upon the first contract and parcel of it; so that if the lessee had occupied eight or ten years, or 'more, these years, by computation from the time past, made an entire lease for so many years; and if rent was in arrear for part of one of those years, and part of another, the lessor might distrain and avow as for so much rent arrear upon one entire lease, and need not avow as for several rents due upon several leases, accounting each year a new lease. It was also adjudged, that after the commencement of each new year, this was become an entire lease certain for the years past, and also for the year so entered upon: so that neither party could determine their wills till that year was run out, according to the opinion of the two judges in the last case. And this seems no way impeached by the statute of frauds and perjuries, which enacts, that no parol lease for above three years shall be accounted to have any other force or effect than of a lease only at will: for at first, this being a lease certain only for one year, and each accruing year after being a springing interest for that year, it is not a lease for any three years to come, though by a computation backwards, when five or six or more years are past, this may be said a parol lease for so many years: but with this the statute has nothing to do, out only looks forward to parol leases for above three years to come."'

Thus the fact that the law regards a tenancy from year to year which has continued for a number of years, considered retrospectively, as a single term in no way affects the principle

that continuation beyond the end of each year depends on the will of the parties that it should continue or that, considered prospectively, the tenancy continues no further than the parties have already impliedly agreed upon by their omission to serve notice to quit.

The second submission for the appellant is that, whatever the law may have been before the enactment of the Law of Property Act 1925, the effect of that statute, whereby a legal estate in land vested in joint tenants is held on trust for sale for the parties beneficially entitled, coupled with the principle that trustees must act unanimously in dealing with trust property, is to

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reverse the decision in Summersett's case and to prevent one of two joint tenants determining a periodic tenancy without the concurrence of the other. It is unnecessary to consider the position where the parties beneficially entitled are different from those who hold the legal interest. But where, as here, two joint tenants of a periodic tenancy hold both the legal and the beneficial interest, the existence of a trust for sale can make no difference to the principles applicable to the termination of the tenancy. At any given moment the extent of the interest to which the trust relates extends no further than the end of the period of the tenancy which will next expire on a date for which it is still possible to give notice to quit. If before 1925 the implied consent of both joint tenants, signified by the omission to give notice to quit, was necessary to extend the tenancy from one period to the next, precisely the same applies since 1925 to the extension by the joint trustee beneficiaries of the periodic tenancy which is the subject of the trust.

Finally, it is said that all positive dealings with a joint tenancy require the concurrence of all joint tenants if they are to be effective. Thus, a single joint tenant cannot exercise a break clause in a lease, surrender the term, make a disclaimer, exercise an option to renew the term or apply for relief from forfeiture. All these positive acts which joint tenants must concur in performing are said to afford analogies with the service of notice to determine a periodic tenancy which is likewise a positive act. But this is to confuse the form with the substance. The action of giving notice to determine a periodic tenancy is in form positive; but both on authority and on the principle so aptly summed up in the pithy Scottish phrase "tacit relocation" the substance of the matter is that it is by his omission to give notice of termination that each party signifies the necessary positive assent to the extension of the term for a further period.

For all these reasons I agree with the Court of Appeal that, unless the terms of the tenancy agreement otherwise provide, notice to quit given by one joint tenant without the concurrence of any other joint tenant is effective to determine a periodic tenancy.

An alternative ground advanced in support of the appeal relied on the particular terms of the tenancy agreement entered into by Mr. Monk and Mrs. Powell with the respondent as requiring notice to quit to be given by both joint tenants in order to determine the tenancy. I agree entirely with the reasons given by Slade and Nicholls L.JJ. for rejecting this contention.

I would accordingly dismiss the appeal.

LORD BRANDON OF OAKBROOK

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons which he gives I would dismiss the appeal.

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LORD ACKNER

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend. Lord Bridge of Harwich. I agree with it and for the reasons which he gives I, too, would dismiss this appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons which he gives I, too, would dismiss this appeal.

LORD BROWNE-WILKINSON

My Lords,

There are two instinctive reactions to this case which lead to diametrically opposite conclusions. The first is that the flat in question was the joint home of Mr. Monk and Mrs. Powell: it therefore cannot be right that one of them unilaterally can join the landlords to put an end to the other's rights in the home. The second is that Mr. Monk and Mrs. Powell undertook joint liabilities as tenants for the purpose of providing themselves with a joint home and that, once the desire to live together has ended, it is impossible to require that the one who quits the home should continue indefinitely to be liable for the discharge of the obligations to the landlord under the tenancy agreement.

These two instinctive reactions are mirrored in the legal analysis of the position. In certain cases a contract between two persons can, by itself, give rise to a property interest in one of them. The contract between a landlord and a tenant is a classic example. The contract of tenancy confers on the tenant a legal estate in the land such legal estate gives rise to rights and duties incapable of being founded in contract alone. The revulsion against Mrs. Powell being able unilateraly to terminate Mr. Monk's rights in his home is property based: Mr. Monk's property rights in the home cannot be destroyed without his consent. The other reaction is contract based: Mrs. Powell cannot be held to a tenancy contract which is dependant for its continuance on the will of the tenant.

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The speech of my noble and learned friend Lord Bridge of Harwich traces the development of the periodic tenancy from a tenancy at will. He demonstrates that a periodic tenancy is rounded on the continuing will of both landlord and tenant that the tenancy shall persist. Once either the landlord or the tenant indicates, by appropriate notice, that he no longer wishes to continue, the tenancy comes to an end. The problem is to determine who is "the landlord" or "the tenant" when there are joint lessors or joint lessees.

In property law, a transfer of land to two or more persons jointly operates so as to m ake them, vis a vis the outside world, one single owner. " Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner": Megarry and Wade. The Law of Real Property. 5th ed., p. 417. The law would have developed consistently with this principle if it had been held that where a periodic tenancy has been granted by or to a number of persons jointly, the relevant "will" to discontinue the tenancy has to be the will of all the joint lessors or joint lessees who together constitute the owner of the reversion or the term as the case may be.

At one stage the law seems to have flirted with adopting this approach. Thus in Doe d. Whayman v. Chaplin (1310) 3 Taunt. 120 there was a periodic tenancy and four persons were the joint lessors. Three only of the joint lessors gave notice to quit against the wishes of the fourth. It is reported that at one stage the court inclined to the view that in order to determine the tenancy all four lessors had to agree. However after further argument it was held that each of the three who had given notice to quit was entitled to put an end to the tenancy of his share and the three who had given notice to quit were therefore entitled to recover three parts of the land. As a result, the defendant apparently was entitled to stay on the land in right of his tenancy of one part as tenant in common with the three lessors who had given notice. Although the decision is difficult for a modern lawyer to understand fully, one thing is clear: the giving of notice to quit by three out of the four joint lessors was not sufficient to determine the tenancy of the whole land.

Despite this flirtation, the law was in my judgment determined in the opposite sense by Doe d. Aslin v. Summersett (1830) 1 3. & Ad. 135. The contractual, as opposed to the property, approach was adopted. Where there were joint lessors of a periodic tenancy, the continuing "will" had to be the will of all the lessors individually, not the conjoint will of all the lessors collectively. This decision created an exception to the principles of the law of joint ownership: see Megarry and Wade (supra) pp. 421-422.

It was submitted that this House should overrule Summersett's case. But, as my noble and learned friend Lord Bridge of Harwich has demonstrated, the decision was treated throughout the 19th century as laying down the law in relation to the rights of joint lessors. It is not suggested that the position of joint lessees can be different. Since 1925 the law as determined in Summersett's case has been applied to notices to quit given by one of several joint lessees. In my judgment no sufficient reason

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has been shown for changing the basic law which has been established for 160 years unless, as was suggested, the 1925 legislation has altered the position.

Before 1925 property belonging to two or more persons concurrently could be held by them in undivided or divided shares at law. The Law of Property Act, 1925, changed this and requires that, even in the case of joint tenants, they hold the legal estate as joint tenants on trust for themselves as joint tenants in equity: section 36(1). It was suggested that the interposition of this statutory trust for sale has altered the position: since Mr. Monk and Mrs. Powell held the legal estate in the periodic tenancy as trustees and trustees must act unanimously, neither of them individually could give a valid notice to quit .

In my view this submission fails. The trust property in question was a periodic tenancy. As between the lessor and the lessees the nature of the contract of tenancy cannot have been altered by the fact that the lessees were trustees. The tenancy came to an end when one of the lessees gave notice to quit. It may be that, as between the lessees, the giving of the notice to quit was a breach of trust, theoretically giving rise to a claim by Mr. Monk against Mrs. Powell for breach of trust. Even this seems to me very dubious since the overreaching statutory trusts for sale imposed by the Law of Property Act, 1925, do not normally alter the beneficial rights inter se of the concurrent owners: see Re Warren

[1932] 1 Ch. 42

per Maugham J . at p. 47; Bull v. Bull [1955] 1 Q.B. 234. But even if, contrary to my view, the giving of the notice to quit by Mrs. Powell was a breach of trust by her, the notice to quit was not a nullity. It was effective as between the lessor and the lessees to terminate the tenancy. The fact that a trustee acts in breach of trust does not mean that he has no capacity to do the act he wrongly did. The breach of trust as between Mrs. Powell and Mr. Monk could not affect the lessors unless some case could be mounted that the lessors were parties to the breach, a case which Mr. Reid, for Mr. Monk, did not seek to advance. Therefore in my judgment the 1925 legislation does not affect this case.

For these reasons and those given by my noble and learned friend Lord Bridge, I too would dismiss this appeal .

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Cited in 35 later judgments

and 26 more of the most senior