The tenant gave notice to quit but failed to leave the premises by the due date (Michaelmas). The landlord sued for ejectment, but then accepted a quarter’s rent (due at Christmas). Did this create a new tenancy?
Held: The issue depended on the intention of the parties. Referring to the landlord accepting a single rent: ‘The taking half, when he is entitled to an action for the whole, is an act of lenity; but it does not import a consent that the tenant shall continue in possession, or a waiver by the landlord of his remedy by ejectment.’ The acceptance of a single rent was only a waiver of the landlord’s right to double rent under the 1730 Act, and not of the right to possession.
Aston J said: ‘The only act which appears is, the acceptance of a single quarter’s rent accrued since. I think that is only a waiver of his right to double rent under [the Act of 1730], and does not necessarily imply a consent that the tenancy should continue . . For here, the acceptance of single rent, is only a waiver of his right to double.’
Lord Mansfield said: ‘The question therefore is, quo animo the rent was received, and what the real intention of both parties was? If the truth of the case is, that both parties intended the tenancy should continue, there is an end of the plaintiff’s title: if not, the landlord is not barred of his remedy by ejectment.’
Judges:
Aston J, Lord Mansfield, Ashhurst J
Citations:
[1775] 1 Cowp 243, [1775] EngR 19, (1775) 98 ER 1066
Links:
Statutes:
Distress for Rent Act 1737 (II Geo 2, c 19) 18,, Landlord and Tenant Act 1730
Jurisdiction:
England and Wales
Cited by:
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Shaws (EAL) Ltd v Pennycook CA 2-Feb-2004
Tenant’s First Notice to terminate, stood
The landlord served a notice to terminate the business lease. The tenant first served a notice to say that it would not seek a new lease, but then, and still within the time limit, it served a second counter-notice seeking a new tenancy. The . .
Cited – Javad v Aqil CA 15-May-1990
P in possession – tenancy at will Until Completion
A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
Held: The tenant’s appeal failed. It was inferred . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 07 December 2022; Ref: scu.188149