Notice to Quit By a Tenant: Where Are We Now?

Return to Articles List


Cases: Procter v Procter [2022] EWHC 1202 (Ch) and Pile v Pile [2022] EWHC 2036 (Ch)

  1. In a Judgment delivered on 29 July 2022 in the case of Pile v Pile1, Mr Justice Zacaroli had to consider the validity and effectiveness of a notice to quit given by one joint tenant, without the concurrence of the other joint tenant, and whether such notice to quit terminated their joint agricultural tenancy.
  1. The same issue was considered by HHJ Davis-White KC (sitting as Judge of the High Court) in his Judgment delivered in May 2022 in the latest iteration of the Procter v Procter2
  1. In Procter, the Judge found that the notice to quit was not valid and effective to terminate an agricultural tenancy by reason of it having been served in breach of fiduciary duty, such that it should be rescinded. In contrast, in the Pile case, the Court determined that the notice to quit was valid and effective. Why?
  1. In Pile, Zacaroli J advanced four propositions. The first was that, whereas in general all co-owners (at law) of a tenancy must act unanimously in order to carry out an effective positive act in relation to the tenancy, in the case of a periodic tenancy, the estate only continues so long as it is the will of both parties that it should continue. Accordingly, it is the continuation of the tenancy that is considered to be the positive act in relation to the tenancy, so that a notice given by one of the co-owners is effective to terminate the tenancy.
  1. Secondly, the fact that the joint tenants of a periodic tenancy are, by reason of their co-ownership of the tenancy at law, trustees for sale under the Law of Property Act 1925 does not alter the position. The service of a notice to quit is not the exercise of a statutory or other power vested in trustees for sale: see Crawley Borough Council v Ure3. Accordingly, it was not a breach of trust for a co-owner of a periodic tenancy to fail to consult the beneficiaries before serving a notice to quit. While it was possible for a co-owner to owe trust duties which would be breached by the service of a notice to quit, such duties were not owed where the only basis for the trust relationship was the trust for sale imposed on co-owners of property.
  1. Thirdly, the same is true where the only basis for the trust relationship is the trust which arises in cases of co-ownership under the Trusts of Land and Appointment of Trustees Act 1996: see Notting Hill Housing Trust v Brackley4.
  1. Fourthly, while there are circumstances in which a joint tenant of a periodic tenancy might owe trust duties which could preclude them from serving a notice to quit, that depends on the existence of factors that give rise to trust duties that go beyond those of a bare trust under the LPA 1925 or TOLATA. An example was in the case of Jones v Challenger5, where the property was required for the purpose of providing a matrimonial home.
  1. On the facts in Pile, Zacaroli J found that (even considering a draft amended pleading) there was no evidence or case before the Court that there were trust duties owed, beyond the mere fact of co-ownership.
  1. One of the authorities considered by Zacaroli J was the decision of Knox J in Cork v Cork6. That case involved a joint tenancy of an agricultural tenancy, where the landlord had served a notice to quit. The question was whether one of the joint tenants could be compelled to join in service of a counternotice. An application was made to the Court for an interlocutory mandatory injunction. That was granted. The Court decided that, notwithstanding the House of Lords decision in Hammersmith LBC v Monk7, if the equitable considerations under a trust so dictated, then a joint tenant could be forced to serve a counternotice.
  1. In Monk, a case concerning joint tenants of a Council flat, where one of the two joint tenants served a notice to quit without the concurrence of the other, the House of Lords decided that this would be valid and effective.
  1. In Cork, the Court noted that the Monk decision was concerned with the results of what one of two trustees had done in relation to the service of a notice to quit on the landlord, whereas in Cork the Court was concerned with how the trustees for sale should be directed to behave in relation to the landlord. Knox J said that the question was whether there were any equitable interests which operated to vary the prima facie position that either of the two, or more, joint tenants could serve a notice to quit. He concluded that there were such equitable interests in the Cork That put the Cork decision into the same category as that in Procter.
  1. In Procter, the Judge had rightly observed that the speeches of the House of Lords in the Monk case were concerned with the position of joint tenants who were also all beneficial co-owners of the tenancy. In his speech in Monk, Lord Bridge had expressly emphasised that he was not dealing with the position where the parties beneficially entitled were different from those who held the legal interest, in the context of a submission concerning the principle that trustees must ordinarily act unanimously in dealing with trust property.
  1. In Procter, the Judge expressly acknowledged that the question of whether a notice to quit served by one joint tenant was effective could potentially be different where the trust was not one of co-ownership between the joint tenants and trust obligations arose, and the landlord was on notice of the point. The Judgment proceeded on the assumption that the Court was initially considering what the position would be where the legal owners of the tenancy hold as joint tenants on trust for all of themselves as co-owners in equity. However, in Procter that was not in fact the position. Accordingly, it submitted that although the Judge determined that the notice to quit was validly given, albeit that he then rescinded it for breach of fiduciary duty, he should have found that the notice to quit was in fact invalid and ineffective. That was because the claimant, serving the notice to quit as one of three joint tenants, was a trustee without a beneficial interest in the tenancy. She was not lawfully entitled unilaterally to serve a notice to quit in circumstances that she did without unanimity from her co-trustees who were the sole beneficial owners because they were the only continuing partners with the benefit of the tenancy. By serving the notice to quit, the claimant was committing a breach of trust and fiduciary duty. One of the co-tenants was also the freehold owner and landlord of the land, as trustee of his Grandfather’s Will Trust. He was well aware of the circumstances that did not permit the claimant to serve a unilateral notice to quit. The claimant should not have been permitted to assert reliance on her own purported wrong in that regard: see Padbury v York8. Accordingly, albeit that the point became one of academic interest only, in Procter the Judge ought to have found that the claimant’s unilateral notice to quit was in the circumstances ineffective.

© P R Williams

28 November 2022

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

1 [2022] EWHC 2036 (Ch).

2 [2022] EWHC 1202 (Ch).

3 [1996] QB 13.

4 [2001] EWCA Civ 601.

5 [1961] 1 QB 176.

6 [1997] 1 EGLR 5.

7 [1992] 1 AC 478.

8 [1990] 2 EGLR 3.

Return to Articles List