Giving a Notice to Quit

Case: Turner v Thomas [2022] EWCA Civ 1446

1. This Article needs to be read in conjunction with that which I posted on our website on 20 June 2022. In that earlier Article I suggested that the decisions of the County Court and High Court in the case of O G Thomas Amaethyddiaeth Cyf v Turner were wrongly decided. In a Judgment handed down on 3 November 2022, the Court of Appeal agreed with me.

1. The facts are set out in the earlier Article but, very briefly, Mr Thomas was the tenant of land at Pentre Canol, which was subject of an oral tenancy. Following the death of his Landlord, Mr Thomas took advice and set up a Company called O G Thomas Amaethyddiaeth Cyf (in English: O G Thomas Agriculture Ltd), of which Mr Thomas was the sole shareholder and officer of the Company. The registered office was at Mr Thomas’ home address.

1. Having set up the Company, two days later, Mr Thomas, on advice, assigned the tenancy to the Company. The assignment was accepted as being valid and effective.

1. Three days later, without knowledge of the assignment, the former Landlords’ executor served a Notice to Quit. The Notice to Quit was given for no reason and, therefore, would have straightforwardly been challenged by a counternotice, although none was given. However, the Notice to Quit was addressed to Mr Thomas and not the Company.

1. In the County Court the Judge agreed with me that, for the purposes of section 93 of the Agricultural Holdings Act 1986, the Notice to Quit had to be given (the word used in the statute) to the tenant. The County Court Judge accepted that another decision of the Court of Appeal in Old Grovebury Manor Farm Ltd v W Seymour Plant Sales and Hire Ltd (No.2) [1979] 1 WLR 1397, was authority for the proposition that a notice to quit had to be served on the assignee (i.e. the Company in this case) rather than the assignor, following the assignment of a lease. However, the County Court Judge rescued the Landlord’s Notice to Quit on the basis that the Mannai principle applied. In Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 747, by a 2/3 majority, the House of Lords decided, as regards the need for accuracy in notices to quit, the question which fell to be answered in individual cases was: “Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?”.

1. That decision of the County Court Judge, relying on the application of the Mannai principle, was upheld on appeal in the High Court by Mr Justice Zacaroli, for the reasons explained in my earlier Article.

1. In all three Courts, Counsel for the Landlord advanced a different argument as to why the Notice to Quit was valid and effective. The argument relied upon the fact that, as Mr Thomas was the officer of the Company and had management and control of the holding, service of a notice to quit on him would be sufficient service of a notice to quit on the Company.

1. What that argument omitted was the fact that this is not a case about service of a notice to quit. It is a case about the correct identity of the tenant referred to in the Notice to Quit.

1. In this case it was accepted that the Notice to Quit was validly served. The point was that it had not been given to the Company. Valid service did not equate to the Notice to Quit being validly given. The argument that effective service validated the Notice to Quit was rejected by the Court of Appeal.

1. In a careful review of the authorities, Lord Justice Lewison (who gave the only Judgment in the Court of Appeal, with which Asplin LJ and Nugee LJ both agreed) concluded that a notice to quit had to be given to the correct party. It could not be perfected by the Mannai In Mannai Lord Steyn accepted that not all mistakes could be corrected. Lord Clyde also said in the same case that there would be instances where the validity of the notice could not be saved by any construction and will have to be regarded as bad. Lewison LJ determined that, as in the Morris case (referred to in my earlier Article), this was one such instance. This was not an example of a verbal error. There was a factual error in naming the wrong tenant.

1. Lewison LJ concluded that he did not consider that the question that Zacaroli J posed was the only question. The question that he was answering was what the Notice to Quit meant. The anterior question was whether the Notice was “given to” the tenant. Lewison LJ concluded that he did not consider that it was. Also, he went on to say that if the question that Zacaroli J posed was the right question, he did not consider that the Judge had reached the right answer to it.

1. Perhaps the irony of this case is that, for whatever reason the original Landlord’s executor gave a speculative notice to quit for no reason. In doing so he named Mr Thomas as the tenant. Had the executor simply addressed the Notice to Quit to “the tenant”, without naming Mr Thomas, then the Notice to Quit would have been valid and effective. It would have been “given to” the tenant.

1. The lesson to be learned from this case is that when serving a notice to quit on behalf of a landlord, or indeed serving any notice on behalf of a tenant, the notice should be drafted in a manner which contains as an alternative “the tenant” or (in reverse) “the landlord”. Had that happened here, expensive litigation would have been avoided.

1. I wish to record my thanks to Eifion Bibby of Davis Meade Property Consultants for instructing me in relation to this case. I should make it clear that he was instructed long after the failure to give the counter-notice!

3 November 2022

P R Williams, Ebery Williams – Author of Scammell, Densham & Williams Law of Agricultural Holdings