A question on tenant’s notice to quit, to keep minds occupied during the silly season.
Fareham BC v Miller [2013] EWCA Civ 159. (our report here) states in no uncertain terms that the common law position is that a landlord’s notice to quit is irrevocable once served.
30. As a matter of law it was impossible for the Council to revoke the notice to quit. Once served it was effective to determine the tenancy according it its terms. Even if the Council had made an irrevocable decision not to rely on the notice the tenancy would still have come to an end: see Tayleur v Wildin (1868) LR 3 Ex 303. […]
Tayleur v Wildin concerned waiver of notice served by a landlord. The waiver took place before the expiry of the notice period. It states that the effect of the waiver/withdrawal is not that the tenancy continues but that a new tenancy arises as of the expiry date of the notice. This was upheld in Freeman v Evans [1922] 1 Ch. 36.
I have been told that this is the largely accepted position in commercial lets. Waiver/withdrawal of Notice creates a new tenancy from date of expiry of notice (similarly with waiver of notice served to exercise break clause). Eg see this note on the SDLT site (although that is saying SDLT would not be applied).
Now, what I had thought about tenant’s notice to quit is as per Defending Possession Proceedings (Luba QC, Gallagher etc.) at 2.26 of Seventh Edition, re tenant’s notice:
A valid notice to quit will end the tenancy on expiry.
Thus, it was of course possible for the landlord and tenant to agree to waive the notice prior to expiry and for the tenancy continue.
But the common law position set out in Fareham v Miller applies equally to tenant’s notice to quit as it does to landlord’s.
Per Kelly CB, Tayleur v Wildin:
But it is clear that, whether the notice to quit is given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the consent of both. If that is so, then the consent of the parties makes a new agreement, and if there is a new agreement there is a new tenancy created to take effect at the expiration of the old tenancy. [our emphasis]
So, any waiver of tenant’s notice would give rise to a new tenancy on the date of expiry of the notice.
The impact of this could be significant, particularly on private tenancies. Any guarantor would fall away (precisely the issue in Tayleur). (Though would it be a ‘replacement tenancy’ for s.21(7) HA 1988 purposes, if an AST?). And after Superstrike, the deposit implications are obvious. For social tenants, RTB wouldn’t be affected (it is aggregate time) but previous rent arrears would not be collectable or ground gor possession, just a debt, and possibly succession rights would revive. I am sure there are plenty of other implications that I haven’t had time to think about.
Also obviously, this is the common law position, and would not affect statute – so an assured (or AS) tenancy would exist until eviction, regardless of landlord’s NTQ. But tenant’s NTQ seems to me to be a more problematic question, and still largely common law..
I have probably got something hideously wrong, or overlooked something, but no-one has yet pointed me to anything conclusive.
Thoughts?