Thankfully, the law of appropriation is relatively clear and established. It was explained in good detail in the Court of Appeal case[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] Thomas v Ken Thomas Ltd [2006] EWCA Civ 1504 where at para 19 it was stated (author added words [landlord] and [tenant]):

19.  The relevant principles are accurately set out in Chitty on Contracts, 29th Edition Vol 1 at paragraph 21.059-21.061:

“21.059: Rights to appropriate payments. Where several separate debts are due from the [tenant] to the [landlord], the [tenant] may, when making a payment, appropriate the money paid to a particular debt or debts, and if the [landlord] accepts the payment so appropriated, he must apply it in the manner directed by the [tenant]; if, however, the [tenant] makes no appropriation when making the payment, the [landlord] may do so.

“21.060: Debtor’s rights to appropriate. It is essential that an appropriation by the [tenant] should take the form of a communication, express or implied, to the [landlord] of the [tenant's] intention to appropriate the payment to a specific debt (or debts) so that the [landlord] may know that his rights of appropriation as [landlord] cannot arise. It is not essential that the [tenant] should expressly specify at the time of the payment, which debt or account intended the payment to be applied to. His intention may be collected from other circumstances showing that he intended at the time of the payment to appropriate to a specific debt or account. ….

“21.061: Creditors’ right to appropriate. Where the [tenant] has not exercised his option, and the right to appropriate has therefore devolved upon the [landlord], he may exercise it at any time “up to the very last moment” or until something happens which makes it inequitable for him to exercise it. [I omit the rest of the paragraph].”

Therefore, if the tenant when paying the £200.00 says “this payment is for my new tenancy” (or similar) then, the landlord is bound by that statement. However, if the tenant remains silent, it is for the landlord to decide where to appropriate the amount (unless it can be somehow implied as to which tenancy the payment was for). Of course, the landlord should always appropriate to the previous tenancy because that way the new tenancy is developing arrears making the section 8 notice on rent arrears grounds easier.

Where an appropriation is done by the landlord, it would very wise to insert details of the appropriation on any receipt issued as this would assist with any questions that may arise later and would also help with any question of “implied” appropriation.

Housing Benefit

One unanswered question (by the courts) though is what about a housing benefit payment? The cheque or statement will always contain the dates to which the payment relates. Are these dates appropriating the amount to those specific dates and no other? I would respectfully submit no. Our view is that the law of appropriation remains as described above and that the dates on the cheque or statement are nothing more than showing the dates of the tenant’s “entitlement” to housing benefit and are not necessarily dates showing the actual “rent” being paid. It is therefore still acceptable for a landlord to appropriate a housing benefit payment to an earlier tenancy for example in our view.

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A problem that this can cause is that the tenant attends the hearing and states that they paid the landlord x amount in cash three days ago which of course is more often than not a lie.

Although this article doesn’t get rid of that argument altogether, it is helpful for a landlord to remind the court of section 9, Civil Evidence Act 1995 which provides that the records of a business (which includes a rent statement) may be given as evidence “without further proof”.

A document shall be taken to form part of the records of a business if there is produced to the court a certificate to that effect signed by an officer of the business [s.9(2)].

Below is a suggested certificate for the benefit of members which may also be downloaded in word format. The certificate should be signed and attached to the court bundle at the point of commencing proceedings. If proceedings have already been commenced, then the certificate should be taken in on the day of the hearing.

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Certificate that rent statement forms part of business records

Section 9, Civil Evidence Act 1995

I, the claimant hereby certify that the rent statement provided with the section 8 notice served on the tenant and the rent statement(s) provided to the court form part of the records of my business.

Signed …………………………………………………………………………….

Dated ………………………………………………………………………………

Civil Evidence Act 1995
9.— Proof of records of business or public authority.

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

(4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
“officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and
“public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.

(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.

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The corresponding date rule was explained by the House of Lords in [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] Dodds v Walker (1981) 42 P. & C.R. 131. Although this case relates to a notice served under section 29(3) Landlord and Tenant Act 1954 by the tenant of business premises requesting a new lease, the principles of the corresponding date rule equally apply to all notices served including possession notices.

In this case, the landlord served on the tenant a notice terminating the tenancy dated 29 September 1978 and served on 30 September 1978. The tenant had under section 29(3) “… not less than two nor more than four months after the giving of the landlord’s notice ….” to apply for a new lease.

The tenant applied to the court on 31 January 1979 for a new lease and the landlord defended saying it was too late. The landlords case was that four months from 30 September was 30 January and so the tenant was one day too late. The tenants case was that because the notice was served on the last day of September, four months was until the last day of January.

The tenants claim was dismissed through all courts (although only by majority in the Court of Appeal) and finally the tenant unsuccessfully appealed to the House of Lords.

Lord Diplock explains the corresponding date rule:

… My Lords, reference to a “month” in a statute is to be understood as a calendar month. The Interpretation Act [1889, s. 3 ] says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves. 248 that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30-day month is one day shorter that one month’s notice given in a 31-day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.

This simple general rule which Cockburn C.J. in Freeman v. Read (1863) 4 B. & S. 174 , 184 described as being “… in accordance with common usage, …, and with the sense of mankind,” works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on the thirty-first of a 31-day month and expiring in a 30-day month or in February and notices expiring in February and given on the thirtieth or twenty-ninth (except in leap year) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends upon the last day of the month in which the notice expires…

The tenants appeal was dismissed as the request should have been made on or before 30 January 1979 and no later.

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Where a tenant wishes to leave during a fixed term, or simply vacates without notice, this is an offer to surrender. A landlord may accept such a surrender or refuse to accept (see this article for much more detail).

In the case that the landlord is willing to accept the surrender, it is best to have a notice to surrender from the tenants.

A suitable notice to surrender is available here

Notice to surrender by tenant to landlord guidance

Where a tenancy is running periodic, a NOTICE TO QUIT from tenant is normally more suitable than this notice (Guild Form F019, see this group of posts). This notice should only be used on rare occasion and you should contact us before using this notice to clarify the reasons for using this notice.

A few key points to note:

This notice should be used where ALL parties agree that the tenancy is to end, that is to say [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']ALL tenants and the landlord must agree for this notice to have effect. By agreeing with this notice, the landlord will be no longer entitled to claim any further rent after the expiry of this notice. (But if the tenant remains in occupation, damages for use and occupation will be payable by the tenants)

Anything less than ALL tenants signing this notice will render the notice invalid.

This notice is normally used where a notice to quit is not possible for example if a tenant wishes to leave during a fixed term (where the landlord agrees), or if a tenant has already vacated without notice and the landlord is seeking clarification that the tenant has indeed surrendered the tenancy.

If the tenant is wishing to simply give short notice (i.e. less than four weeks) during a periodic tenancy, a notice to quit is equally suitable because a landlord may accept an invalid notice to quit.

The tenant does not have to give any specific length of time with this notice so it could be an agreement to give one days notice or one months notice. Nor, does this notice need expire on any particular date.

If the tenants fail to vacate on the date given in this notice, a court order will still be required to gain possession.

If a landlord asks the tenant to sign this notice on the same date or before the tenancy is granted, it will have no effect [s.5(5) Housing Act 1988].

Completing the notice (in order of form fields)

• Insert name and address of landlord
• Insert names of all tenants
• Insert tenancy address
• Insert the date the tenancy is to be surrendered and the premises given back to landlord
• Insert date of the notice
• All tenants to sign, each signature must be witnessed
• Landlord to sign and must be witnessed
• Both landlord and tenant should retain a copy each

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A recent Court of Appeal decision sheds light on issues relating to Notices to Quit by tenants. In Bradford Community Housing Ltd v Hussain & Kauser the Court of Appeal ruled on the validity of a Notice to Quit which contains a saving provision and on whether the acceptance of rent or holding back on enforcement can invalidate a Notice to Quit.

Mr Hussain and Ms Kauser held an assured tenancy from Bradford Community Housing Ltd and after allegations of domestic violence their relationship collapsed and Ms Kauser (at the urging of Bradford) served a notice to quit on Bradford. As the tenancy was periodic by this stage the notice was valid to terminate the tenancy without the involvement of Mr Hussain following the well-known decision in Hammersmith & Fulham LBC v Monk. On the back of this notice possession proceedings were taken.

Before the Court of Appeal two arguments were made. The first was that the date on the notice was wrong and that the standard saving provision made the notice ambiguous as the saving provision and the given date ultimately referred to different dates. The second argument was based around correspondence between Bradford and Ms Kauser whereby Bradford had suggested suggested that they would not enforce on the notice to quit immediately and would continue to accept rent monies on an ad hoc basis. It was argued that this arrangement had the effect of renewing the tenancy and thereby made the notice to quit ineffective without the consent of Mr Hussain.

The Court of Appeal dismissed both arguments out of hand.
The Court was in no doubt that the use of the saving provision did not create and doubt in the mind of a reasonable recipient of the notice. This is an interesting point as the same question has been raised (although not at such a level) in relation to section 21(4)(a) notices and the possibility of ambiguity if they contain both a date and a saving provision. It would seem that this argument is now dead.
The Court was also not prepared to accept that a statement by Bradford that they might not immediately enforce the notice to quit and would in the meantime accept rent in any way acted to create a new tenancy. The Court made reference to the case of Clarke v Grant and made clear that mere acceptance of rent after the expiry of a notice could only create a new tenancy if this was the settled intention of the parties.

While this is a small case it provides clarity over one or two points of interest.

s 18 Tenants holding after the time they notify for quitting, to pay double rent.

And whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premisses by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same: from and after the said twenty fourth day of June one thousand seven hundred and thirty eight, in case any tenant or tenants shall give notice of his, her, or their intention to quit the premisses by him, her, or them holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, that then the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent or sum, before the giving such notice, could be levied, sued for, or recovered; and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid.

There are however strict rules that must be followed before a claim for double rent may be made. These were decided in Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57.

Laws L.J. states:
“…the right to double rent conferred by section 18 of the Act of 1737 only arises where (a) the tenant holding over after his own notice to quit is in fact a trespasser (thus, the notice must be valid), and (b) the landlord treats him as such. Any other case departs from what I regard as the plain purpose of the section…”

Though s.18 and Laws L.J. both specifically state that the notice must be “valid” a landlord is entitled to accept an invalid notice to quit. It is suggested by the Guild that acceptance of an invalid notice may provide an argument that the notice was “valid”).

One of the intentions of s.18 was to compensate the landlord should he have contracted a new tenant to take the property after the date specified in the notice, however there is no requirement to have a tenant in waiting to charge double rent.

Laws L.J. states
“…it is to my mind entirely clear that the legislature was concerned only to compensate landlords for the potential loss of rent arising where a tenant holds over against the landlord’s insistence that he should comply with his own notice to quit. I do not say that the section applies only where the landlord has a new tenant ready and waiting; the recital gives the thrust, but not necessarily the focus, of the section’s reach.”

Presumably, as the requirement is that the landlord treats the tenant as a trespasser, any request for double rent should be made using the words “mesne profits” so as to ensure the landlords intention is that the occupier is a trespasser. In addition, a landlord would be well advised to immediately commence possession.

Seeking possession

No notice by the landlord will be required because the service by the tenant of a valid notice to quit has ended the tenancy. However, a possession order in the usual way will be required.

You should contact the Guild for advice on seeking possession but essentially, it is an almost identical procedure to the rent arrears procedure after the service of a section 8 notice. It is the same court forms with some minor modifications explaining the reason for possession is because of the tenants notice to quit.

You should bear in mind that any claim for possession based on a tenants notice is extremely rare in the courts and therefore judges may be unfamiliar with what you are asking for. If an alternative method of possession is available (for example after service of a section 21) this maybe preferred.

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A short notice or a notice exercising a break clause must be given by all joint tenants. [Hounslow .B.C. v. Pilling [1993] 1 W.L.R. 1242.]

Notice to quit to end “on the last day of the tenancy”

Assured shorthold tenancy

If one joint tenant wishes to terminate before, or on the last day of a tenancy by giving a notice to quit, the notice to quit must be given by all tenants and all tenants must vacate before midnight on the last day, otherwise a statutory periodic tenancy will arise “immediately” [s5 Housing Act 1988].

“In the case of joint tenants any action must be on the part of all of them: 1988 Act , s 45(3) . This is contrary to the position at common law: Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478 . “ [Woodfall Landlord and Tenant para 24.033]

Common law Tenancy

Unless there is express provision to the contrary (for which see below under periodic), one of several joint tenants may [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']give notice to quit to end a tenancy on the last day of the term without the concurrence of the others and the tenancy will terminate. [Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478]

Note:

In both cases above, no notice is required by a tenant to vacate on the last day of the term, as long as all tenants vacate before midnight on the last day.

It may be possible for a provision in a tenancy agreement to require “if the tenant intends to vacate on the last day of the term, the tenant must provide at least one months notice…”, however it is not clear whether such a term would be enforceable.

Periodic Tenancy

The common law position of one of several joint tenants giving a valid notice on a periodic tenancy is that one tenant may give notice which has the effect of ending the entire tenancy unless there is a provision in the tenancy agreement requiring all tenants to give the notice. [Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478] (to see if notice is valid, see the section on “is notice by tenant valid?”).

A standard joint and several clause found in most tenancy agreements, explaining that the obligations are liable by all tenants jointly and severally is NOT an express provision that requires all tenants to give a notice to quit [ibid Hammersmith v Monk]. In order for a clause to expressly require all tenants to give a notice to quit and not just one of the tenants, it must expressly refer to the giving of the “notice to quit” by all tenants.

For a local authority (so not applicable to private landlords), it may be the case that to seek possession against a remaining tenant after another has given notice maybe a breach of  Article 8 and proportionality [Chesterfield BC v Bailey]

Hammersmith and Fulham London Borough Council Respondent v. Monk [1990] 3 W.L.R. 1144 House of Lords

The defendant and his cohabitee were granted by the council a joint periodic tenancy of a flat, terminable by four weeks’ notice. The cohabitee later left the flat and, upon the council agreeing to rehouse her if she terminated the tenancy, gave the appropriate notice without the defendant’s knowledge or consent. The council thereafter notified the defendant that the tenancy had been terminated and brought proceedings in the county court to recover possession. The judge dismissed the claim on the ground that one joint tenant could not bring a periodic tenancy to an end without the concurrence of the other. The Court of Appeal allowed the council’s appeal and made an order for possession.

On the defendant’s appeal:-

Held, dismissing the appeal, that a contractual periodic tenancy held by two or more joint tenants continued only so long as they all agreed in its continuation; and that, accordingly, in the absence of any term in the tenancy agreement to the contrary, a periodic tenancy was determinable by a notice to quit given by one joint tenant without the concurrence of the other joint tenants and the tenancy of the defendant’s flat had been lawfully determined (post, pp. 483D-E, 490B-C, G-491A, C-E, 492H-493A, F).

What if one tenant has given notice and the other tenant refuses to leave under an assured shorthold statutory periodic tenancy?

The first thing to check is, is the notice valid? If it is not, the landlord does not have to accept the notice and the tenancy will continue. If the notice is invalid but one tenant has vacated, the tenancy will still be an assured shorthold tenancy because (a) the tenancy has not ended because the notice is invalid and (b) only one of joint tenants need occupy the premises as their only or principle home in order for an assured shorthold tenancy to continue [s1(b) Housing Act 1988].

It is possible for a landlord to waiver a defect in a notice where all tenants have given the notice [Elsden v Pick [1980] 1 W.L.R. 898], However a landlord may not accept a short notice given by only one of joint tenants [Hounslow .B.C. v. Pilling [1993] 1 W.L.R. 1242.]

Assuming the notice is valid, then, the tenancy will be at an end. Assuming the person that gave the notice has vacated, his rent liability will cease and the tenancy will be at an end.

At common law he is under a duty to yield up the premises with vacant possession at the end of the term but the intervention of statutory security of tenure has reduced this obligation to one simply to do all he can to obtain vacant possession for the landlord. [ Reynolds v Bannerman [1922] 1 K.B. 719 and Watson v Saunders-Roe [1947] K.B. 437 .] The tenant who has vacated may be liable for the payment of rent or mesne profits up to a point, especially if he has made no reasonable attempt to provide vacant possession.

Because the tenancy is at an end, the person who remains in the property has no tenancy and therefore presumably no protection under the Housing Act (a court order is still required though because of section 3 Protection from Eviction Act 1977).

There are two issues that could arise when suggesting that the person(s) remaining has no protection.

Firstly, Section 45(3) Housing Act 1988 states:

(3) “Where two or more persons jointly constitute either the landlord or the tenant in relation to a tenancy, then, except where this Part of this Act otherwise provides, any reference to the landlord or to the tenant
is a reference to all the persons who jointly constitute the landlord or the tenant, as the case may require.”

This could imply that a notice to quit given under an assured shorthold tenancy must be given by all tenants because a “reference to a tenant is a reference to all person who jointly constitute the the tenant”. However, the reference would seem to be any reference within the Housing Act 1988. There is no provision within the Housing Act for a tenant to give notice (nor is there any restriction as that would be absurd!). The requirement of providing notice is governed by s5 Protection from Eviction Act 1977. It would therefore seem that this section only means any reference in the Housing Act 1988 and so should not affect the common-law position.

Secondly, section 1 Housing Act 1988 states:

1. — (1) A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured [shorthold] tenancy if and so long as—

A landlord should therefore decide quickly what action to take. There are two options:

1. Accept the remaining person as a tenant. In which case, the landlord should grant a new tenancy agreement to the person(s) remaining in occupation.

2. If the landlord is not satisfied with the remaining person(s) then possession should be sought as was done in the Hammersmith case above. It will be possible to seek possession on the basis of the notice to quit provided by the one tenant and the ground for possession is essentially that the tenancy has ended by the service of the notice to quit.

Claiming Possession after VALID notice to quit but tenant fails to vacate

Please see this article

Author notes

notes to author – add Case law accepting rent after notice to quit does not normally create new tenancy (but might in this case)

See also our guidance note on tenants notice and surrender[/amember_protect]

Section [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']5 Protection from Eviction Act 1977 is the starting point which reads:

s 5 Validity of notices to quit.

(1) [Subject to subsection (1B) below] no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) 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 4 weeks before the date on which it is to take effect.

This section does not apply to a licence, it only applies to a tenancy which was let as a dwelling for example an assured [shorthold] tenancy or a common law tenancy.

Calculation of four weeks

The requirement that the notice is given not less than four weeks before the date on which it is to take effect means inclusive of the date of service and exclusive of the day of expiry; so a notice given on Friday, 4th March to expire on Friday, 1st April was good. [Schnabel v. Allard [1967] 1 Q.B. 627; overruling Thompson v. Stimpson [1961] Q.B. [1961] Q.B. 195.]

Length of Notice

Where the period of the tenancy is less than yearly, the rule at common law is that the length of notice must correspond to the period of the tenancy. [See Doe d. Peacock v. Raffan (1806) 6 Esp. 4.] Thus a weekly tenancy may be determined by a week’s notice (but see below), a monthly tenancy by a month’s notice and a quarterly tenancy by a quarter’s notice.

A yearly tenancy may generally be determined by half a year’s notice expiring at the end of the first or any subsequent year of the term [Doe d. Clarke v. Smaridge (1845) 7 Q.B. 957; Doe d. Plumer v. Mainby (1847) 10 Q.B. 473] However, the parties may expressly stipulate for a longer or shorter notice to quit than that usually required by law [See e.g. Rogers v. Kingston-upon-Hull Dock Co. (1864) 34 L.J.Ch. 165; Soames v. Nicholson [1902] 1 K.B. 157.]

The common law rule may be excluded by express agreement, local custom or statutory provision. [The most important of which is the requirement of 4 weeks' notice by the Protection from Eviction Act 1977. See above]

The parties to a demise may expressly stipulate that in a certain event the tenant may quit without any notice. [Bethell v. Blencowe (1841) 3 Man. & G. 119.]

As in the case of a yearly tenancy, the parties may, by agreement, make the tenancy terminable by the appropriate notice at any time; but the words used to bring about this effect must be plain. [H. & G. Simonds v. Heywood, ante; contrasting Mayo v. Joyce, ante.] So a tenancy expressed to be “a monthly one terminable at the will of the landlord or of the tenant by one month’s notice” was held to be determinable by one month’s notice at any time, “at the will of” being construed to mean “at any time.” [Capill v. Norman Andrews [1955] N.Z.L.R. 808.]

Must expire at the end of a period of the tenancy

It was at one time said that a notice to quit should expire on the last day of some year of the tenancy, and not on the same day on which the tenancy commenced.

But the modern law is that since a yearly tenancy in strictness expires at midnight of the day before the anniversary of its commencement, the notice may be made to expire either on the anniversary of commencement or on the day before the anniversary of commencement, and either is good. [Yeandle v. Reigate B.C. [1996] 1 E.G.L.R. 20, following Sidebotham v. Holland [1895] 1 Q.B. 378.] A similar rule applies to weekly or monthly tenancies. [Crate v. Miller [1947] 2 All E.R. 45.]

[para 17.255 Woodfall Landlord & Tenant]

Rent still due where tenant fails to give proper notice

Boyer v Warbey (No.1) [1953] 1 Q.B. 234

The tenancy of a flat was assigned with the consent of the landlords to the defendant who, on the expiration of the lease, held as a statutory tenant. On August 30, 1951, the defendant left the flat without giving the landlords the three months’ notice required by s. 15(1) of the Act of 1920; he subsequently sent the keys to the landlords, who refused to accept a surrender of the tenancy. The landlords claimed that he was liable to pay rent until November 21, 1951, when the flat was re-let.

Held, he was liable to pay the rent (either as such or as damages for breach of statutory duty) until November 21, when the flat was re-let. Smith v Baker (Charles) & Sons [1891] A.C. 325 considered and Elvins v Slaney [1948] W.N. 129 considered.

Notice served during fixed term

“A notice to quit is a certain reasonable notice required by law, custom, special agreement or statute, to enable either the landlord or tenant, … without the consent of the other, to determine a tenancy from year to year or other periodic tenancy. By its nature a tenancy for a term certain cannot be determined by notice to quit…” [para 17.196 Woodfall Landlord and Tenant]

“The tenant cannot terminate before the end of a fixed term…” [para 3.020 Residential Possession Proceedings 7th edition]

Invalid Notice by tenant

The mere fact that an invalid notice to quit is given and accepted does not, without more, amount to a surrender by operation of law. [Doe d. Huddleston v Johnston (1825) M'Clel. & Y. 141].

But if the parties act on an invalid notice to quit, so that possession is given and accepted, their action will amount to a surrender of the tenancy, [Gray v Owen [1910] 1 K.B. 622.] or a waiver of any defect in the notice. [Elsden v Pick [1980] 1 W.L.R. 898.]

The minimum period of notice prescribed by s.5 of the Protection from Eviction Act 1977 can be waived by the parties. [Hackney L.B.C. v. Snowden [2001] L.& T.R. 60

Surrender by operation of law

An agreement by the landlord and the tenant that the term shall be put an end to, acted upon by the tenant’s quitting the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law. [Phene v Popplewell (1862) 12 C.B.N.S. 334.] But the giving and acceptance of possession must be unequivocal.

So there was no surrender where:

(a) the landlord accepted the keys “without prejudice” [Re Panther Lead Co. [1896] Ch. 978. For the giving up of keys generally, see para. 17.022, below.] ;

(b) the landlord accepted the keys by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] ;

(c) the landlord attempted unsuccessfully to relet the premises [Oastler v Henderson (1877) 2 Q.B.D. 575. See also Redpath v Roberts (1800) 3 Esp. 225.] ;

(d) the landlord evicted squatters after abandonment by the tenant but did not intend to accept a surrender [McDougalls v BSE Trading [1997] 2 E.G.L.R. 65.] ;

(e) the landlord changed the locks of the premises in order to secure them against intruders, while maintaining a claim against the tenant for rent [Relvok Properties v Dixon (1973) 25 P. & C.R. 1.] ;

(f) the landlord carried out necessary repairs [Bessell v Landsberg (1845) 7 Q.B. 638.] and attempted to let the premises, although when the landlord did relet, the tenant’s liability for rent ceased as from the start of the new letting [Smith v Blackstone (1885) 1 T.L.R. 267.] ;

(g) the landlord put a caretaker into the property in order to prevent depredations. [Bird v Defonvielle (1846) 2 Car. & K. 415.]

(h) the tenant abandoned part of the premises. [Chamberlain v Scalley (1994) 26 H.L.R. 26.]

(i) the landlord accepted rent from a third party occupier other than the tenant with no intention of effecting a surrender. [Mattey Securities v Ervin [1998] 2 E.G.L.R. 66; Bhogal v Cheema [1991] L. & T.R. 59.]

(j) the tenant vacated the premises and told the landlord that it could take her to court. [Bellcourt Estates v Adesina [2005] 2 E.G.L.R. 33.]

However, the landlord’s conduct was sufficient to amount to the acceptance of a surrender where:

(a) he accepted possession unreservedly [Grimman v Legge (1828) 8 B. & C. 324.] ;

(b) the tenant vacated at the request of the landlord who afterwards demolished the property [Furnivall v Grove (1860) 8 C.B.N.S. 496.] ;

(c) the landlord went into beneficial occupation of the property [Bird v Defonville (1846) 2 Car. & Kir. 415.] ;

(d) the landlord accepted rent from sub-tenants who had been directed by the tenant to attorn to the landlord and pay their rent to him [Gray v Balls (1861) 5 L.T. 395.] ;

(e) the tenant left giving notice of intention to surrender and the landlord acquiesced without demur for a considerable period. [Brent L.B.C. v Sharma (1993) 25 H.L.R. 257.]

A collection of facts which, though equivocal if looked at singly, may collectively point unequivocally to an acceptance of possession. [Reeve v Bird (1834) 1 C.M. & R. 31.]

The giving and acceptance of possession may be symbolic, e.g. by the giving and acceptance of keys. This is considered in the next paragraph.

[para 17.021]

Acceptance of key

The acceptance of the key by the landlord is not necessarily evidence of a surrender; it depends why the key was accepted. If it is accepted merely for the purpose of attempting to relet in the interests of the tenant, [Oastler v. Henderson (1877) 2 Q.B.D. 575.] or to secure the premises against intruders, [Relvok Properties v Dixon (1973) 25 P. & C.R. 1.] or to carry out repairs, [Boynton-Wood v Trueman (1961) 177 E.G. 191.] or by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] there is no surrender.

But if the key is accepted as part of an agreement that the tenant shall give up possession and that the rent shall cease, the acceptance of the key marks the moment of surrender. [Whitehead v Clifford (1814) 5 Taunt. 518; Furnivall v Grove (1860) 8 C.B.N.S. 496.] Where the tenant left the key at the landlord’s office, and the landlord at first refused to accept it, there was nevertheless a surrender when the landlord subsequently put up a letting board, used the key to show the property to prospective tenants and painted out the tenant’s name from the front of the property. [Phene v Popplewell (1862) 12 C.B.N.S. 334.]

The key must be given to a person authorised to accept it. So where the key was given to the clerk of the landlord’s trustee in bankruptcy, but no further communication took place, there was no surrender. [Cannan v Hartley (1850) 9 C.B. 634.] However, one of two joint landlords may have authority to accept a surrender as agent for both of them. [Dodd v Acklom (1843) 6 Man. & G. 672.]

Where a surrender is offered, the landlord has no duty to the tenant to mitigate the tenant’s loss by reletting to the first comer irrespective of other considerations affecting the landlord’s interests. [Boyer v Warbey [1953] 1 Q.B. 234, per Romer L.J.]

[para 17.022]

Rent in lieu of notice [Laine v Cadwallader (2001) 33 H.L.R. 36]

Abstract: In January 1998 L granted an assured shorthold tenancy to C for six months at a rent of GBP 390 per calendar month, payable in advance at two monthly intervals. The tenancy agreement contained a clause requiring C to give one calendar month’s notice of termination. The tenancy continued after the end of the six months, and in September 1998 C left the property, depositing the keys through L’s letterbox. L’s applications to the court to recover rent arrears and funds to repair damage caused by C were successful, although her associated claim for four weeks’ rent in lieu of notice was refused. L appealed.

Summary: Held, allowing the appeal, that at the end of the term certain the tenancy took effect as a periodic assured tenancy under the Housing Act 198[8] s. 5 , the periods being calendar months. Although the notice clause in the tenancy agreement no longer applied after the expiration of the term certain, C was required by the Protection from Eviction Act 1977 s. 5(1) to give at least four weeks notice to quit. The act of putting the keys through L’s letterbox amounted to an offer by C to terminate the tenancy, which L by implication accepted as four weeks’ notice commencing on that day. L was therefore entitled to recover rent equivalent to that four week notice period.

Effect of a sufficient notice to quit

It is implicit in the nature of a periodic tenancy that it may, apart from any special terms agreed, be brought to an end by the unilateral act of either party. Thus, once a valid notice to quit has been served, the tenancy will automatically come to an end on the expiry of the notice, even though the party giving it has purported to waive or withdraw it. The parties may, by a new contract, create a new tenancy which is what is sometimes meant by “waiving” a notice to quit, but the old tenancy no longer exists. Unless a fresh tenancy is subsequently created, the landlord cannot distrain for subsequent rent, even though the tenant continues in possession for a year or more after the expiry of the notice. [Alford v Vickery (1842) Car. & M. 280, per Coleridge J.] The remedy in such case is by action for use and occupation, or for double value or double rent.

A landlord’s notice to quit will destroy along with the head tenancy all sub-tenancies derived out of it, and a tenant’s notice to quit to his landlord will have the same effect. It should be noted under the Housing Act 1988 any sub-tenancies lawfully granted may become the tenants of the head landlord depending on the circumstances.

Where a notice to quit is given after a “restricted contract” of tenancy has been referred to a Rent Tribunal, its operation is postponed until after the expiry of the period laid down by the statute or given by the tribunal; the effect of the statute is not to make the notice a nullity.
Where a tenant has served a statutory counter-notice following notice to quit an agricultural holding it does not have effect unless the Agricultural Land Tribunal consents to its operation. [s.26(1) of the Agricultural Holdings Act 1986.]

[para 17.200 Woodfall Landlord & Tenant][/amember_protect]

Surrender by operation of law

An agreement by the landlord and the tenant that the term shall be put an end to, acted upon by the tenant’s quitting the premises and the landlord by some  unequivocal act taking possession, amounts to a surrender by operation of law. [Phene v Popplewell (1862) 12 C.B.N.S. 334.] But the giving and acceptance of possession must be unequivocal.

So there was no surrender where:

(a) the landlord accepted the keys “without prejudice” [Re Panther Lead Co. [1896] Ch. 978.] ;

(b) the landlord accepted the keys by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] ;

(c) the landlord attempted unsuccessfully to relet [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']the premises [Oastler v Henderson (1877) 2 Q.B.D. 575. See also Redpath v Roberts (1800) 3 Esp. 225.] ;

(d) the landlord evicted squatters after abandonment by the tenant but did not intend to accept a surrender [McDougalls v BSE Trading [1997] 2 E.G.L.R. 65.] ;

(e) the landlord changed the locks of the premises in order to secure them against intruders, while maintaining a claim against the tenant for rent [Relvok Properties v Dixon (1973) 25 P. & C.R. 1.]
;

(f) the landlord carried out necessary repairs [Bessell v Landsberg (1845) 7 Q.B. 638.] and attempted to let the premises, although when the landlord did relet, the tenant’s liability for rent ceased as from the start of the new letting [Smith v Blackstone (1885) 1 T.L.R. 267.]
;

(g) the landlord put a caretaker into the property in order to prevent depredations. [Bird v Defonvielle (1846) 2 Car. & K. 415.]

(h) the tenant abandoned part of the premises. [Chamberlain v Scalley (1994) 26 H.L.R. 26.]

(i) the landlord accepted rent from a third party occupier other than the tenant with no intention of effecting a surrender. [Mattey Securities v Ervin [1998] 2 E.G.L.R. 66; Bhogal v Cheema [1991] L. & T.R. 59.]

(j) the tenant vacated the premises and told the landlord that it could take her to court. [Bellcourt Estates v Adesina [2005] 2 E.G.L.R. 33.]

However, the landlord’s conduct was sufficient to amount to the acceptance of a surrender where:

(a) he accepted possession unreservedly [Grimman v Legge (1828) 8 B. & C. 324.] ;

(b) the tenant vacated at the request of the landlord who afterwards demolished the property [Furnivall v Grove (1860) 8 C.B.N.S. 496.] ;

(c) the landlord went into beneficial occupation of the property [Bird v Defonville (1846) 2 Car. & Kir. 415.] ;

(d) the landlord accepted rent from sub-tenants who had been directed by the tenant to attorn to the landlord and pay their rent to him [Gray v Balls (1861) 5 L.T. 395.] ;

(e) the tenant left giving notice of intention to surrender and the landlord acquiesced without demur for a considerable period. [Brent L.B.C. v Sharma (1993) 25 H.L.R. 257.]

A collection of facts which, though equivocal if looked at singly, may collectively point unequivocally to an acceptance of possession. [Reeve v Bird (1834) 1 C.M. & R. 31.]

The giving and acceptance of possession may be symbolic, e.g. by the giving and acceptance of keys. This is considered in the next paragraph.

Acceptance of key

The acceptance of the key by the landlord is not necessarily evidence of a surrender; it depends why the key was accepted. If it is accepted merely for the purpose of attempting to relet in the interests of the tenant, [Oastler v. Henderson (1877) 2 Q.B.D. 575.] or to secure the premises against intruders, [Relvok Properties v Dixon (1973) 25 P. & C.R. 1.] or to carry out repairs, [Boynton-Wood v Trueman (1961) 177 E.G. 191.] or by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] there is no surrender.

But if the key is accepted as part of an agreement that the tenant shall give up possession and that the rent shall cease, the acceptance of the key marks the moment of surrender. [Whitehead v Clifford (1814) 5 Taunt. 518; Furnivall v Grove (1860) 8 C.B.N.S. 496.] Where the tenant left the key at the landlord’s office, and the landlord at first refused to accept it, there was nevertheless a surrender when the landlord subsequently put up a letting board, used the key to show the property to prospective tenants and painted out the tenant’s name from the front of the property. [Phene v Popplewell (1862) 12 C.B.N.S. 334.]

The key must be given to a person authorised to accept it. So where the key was given to the clerk of the landlord’s trustee in bankruptcy, but no further communication took place, there was no surrender. [Cannan v Hartley (1850) 9 C.B. 634.] However, one of two joint landlords may have authority to accept a surrender as agent for both of them. [Dodd v Acklom (1843) 6 Man. & G. 672.]

Where a surrender is offered, the landlord has no duty to the tenant to mitigate the tenant’s loss by reletting to the first comer irrespective of other considerations affecting the landlord’s interests. [Boyer v Warbey [1953] 1 Q.B. 234, per Romer L.J.]

Rent in lieu of notice [Laine v Cadwallader (2001) 33 H.L.R. 36]

Abstract: In January 1998 L granted an assured shorthold tenancy to C for six months at a rent of GBP 390 per calendar month, payable in advance at two monthly intervals. The tenancy agreement contained a clause requiring C to give one calendar month’s notice of termination.
The tenancy continued after the end of the six months, and in September 1998 C left the property, depositing the keys through L’s letterbox. L’s applications to the court to recover rent arrears and funds to repair damage caused by C were successful, although her associated claim for four weeks’ rent in lieu of notice was refused. L appealed.

Summary: Held, allowing the appeal, that at the end of the term certain the tenancy took effect as a periodic assured tenancy under the Housing Act 1988 s. 5 , the periods being calendar months. Although the notice clause in the tenancy agreement no longer applied after the expiration of the term certain, C was required by the Protection from Eviction Act 1977 s. 5(1) to give at least four weeks notice to quit. The act of putting the keys through L’s letterbox amounted to an offer by C to terminate the tenancy, which L by implication accepted as four weeks’ notice commencing on that day. L was therefore entitled to recover rent equivalent to that four week notice period.

Notice to Surrender

Where a landlord wishes to accept a surrender, a suitable notice can be found here

Mitigate the Loss?

Where the tenant had failed to pay rent due under the lease and had abandoned the demised premises, the landlord was under no duty to mitigate his loss when seeking to recover arrears of rent [Reichman v Beveridge [2007] 1 P & CR 358].

Where a surrender is offered, the landlord has no duty to the tenant to mitigate the tenant’s loss by reletting to the first comer irrespective of other considerations affecting the landlord’s interests. [Boyer v Warbey [1953] 1 Q.B. 234]

[/amember_protect]

Abstract: T had resided in premises with H under a contractual tenancy since 1960. H became a statutory tenant of the premises, paying a monthly rent to the landlord. T succeeded to the statutory tenancy of the premises on H’s death in 1977. In April 1989, T agreed with the landlord to move into other premises belonging to the landlord. In February 1992 T was informed that the landlord had disposed of his interest in the premises to L. L decided that T was an assured tenant, as the tenancy of the new premises was entered into after the commencement of the Housing Act 1988, and served a notice pursuant [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']to the provisions of s. 13 of the 1988 Act, purporting to increase T’s rent. Declarations were sought, inter alia, that T retained protection under the Rent Act 1977 by virtue of the provisions of s. 34(1)(b) of the 1988 Act, and that the notice to increase rent was invalid.

Held, that (1) there was ambiguity as to the correct interpretation of s. 34(1)(b), and parliamentary material could be referred to in accordance with Pepper (Inspector of Taxes) v Hart; (2) in the light of such material, the natural reading of the subsection and the natural justice of the case, the new tenancy did not have to be of the same, or substantially the same, premises (Pepper (Inspector of Taxes) v Hart [1993] A.C. 593 cited).[/amember_protect]