The landlord served his notice to determine the tenancy on the last day of a 30 day month. The tenant served his counternotice on the 31st day of the month four months later.
Held: Dismissing the tenant’s appeal, the House found that the court had no jurisdiction to hear the tenant’s application; he was one day late. When a notice was required to be given within a certain number of months, the period expired on the same day as the original notice, with the single exception of February.
Lord Diplock said: ‘My Lords, reference to a ‘month’ in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves. Jun. 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 than 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. and 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.’
Judges:
Lord Diplock
Citations:
[1981] 1 WLR 1027, [1981] 2 All ER 609
Statutes:
Landlord and Tenant Act 1954 29(3), Interpretation Act 1889
Jurisdiction:
England and Wales
Citing:
Appeal from – Dodds v Walker CA 1980
The tenant give his notice of his desire for a new tenancy on the thirty first day of the fourth month after the landlord had given his own notice terminating the tenancy, but that month had only thirty days.
Held: The tenant’s notice was out . .
Cited – Lester v Garland 8-Aug-1808
Bequest of residue in trust in case A shall within six months after testator’s decease give security not to marry B then and not otherwise to pay to the children of A; with a proviso to go over if she shall refuse or neglect to give such security. A . .
Cited – Freeman v Read 4-Jun-1863
When the relevant period for the giving of a notice 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, ie the day of that . .
Cited by:
Distinguished – Trafford Metropolitan Borough Council v Total Fitness UK Ltd CA 18-Oct-2002
The landlord served a notice to quit. It gave a date calculated by reference to the notice period, but then stated the date on which it expired. Under the rule in Lester, the notice period only began on the day after service, and that resulted in a . .
Cited – O’ Connor Utilities Ltd v HMRC Admn 28-Oct-2009
. .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 01 October 2022; Ref: scu.181206