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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hammersmith & Fulham LBC v Monk [1991] UKHL 6 (05 December 1991)
URL: http://www.bailii.org/uk/cases/UKHL/1991/6.html
Cite as: [1991] UKHL 6, [1992] 1 AC 478, [1990] 3 WLR 1144, [1992] 1 All ER 1, [1992] AC 478

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JISCBAILII_CASE_PROPERTY

    Parliamentary Archives,
    HL/PO/JU/18/251

    Mayor etc. of the London Borough of Hammersmith and Fulham
    (Respondents) v. Monk (A.P.) (Appellant)

    JUDGMENT

    Die Jovis 5° Decembris 1991

    Upon Report from the Appellate Committee to whom was
    referred the Cause Mayor etc. of the London Borough of
    Hammersmith and Fulham against 'Monk (A.P.), That the
    Committee had heard Counsel as well on Monday the 28th as on
    Tuesday the 29th and Wednesday the 30th days of October last,
    upon the Petition and Appeal of Kenneth John Monk of 35 Niton
    Street, London SW6, 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 12th day of October 1990,
    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 Petitioners might have such other
    relief in the premises as to Her Majesty the Queen in Her
    Court of Parliament might seem meet; as upon the case of the
    Mayor and Burgesses of the London Borough of Hammersmith and
    Fulham lodged in answer to the said Appeal; and due
    consideration 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 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)

    v.

    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.

    - 2 -

    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."

    - 3 -

    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.

    - 4 -

    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.

    - 5 -

    "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.

    - 6 -

    "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

    - 7 -

    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

    - 8 -

    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

    - 9 -

    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.

    - 10 -

    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.

    - 11 -

    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

    - 12 -

    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.

    - 13 -


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