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 in the absence of any other material factors that the parties intended to create a tenancy at will rather than a periodic tenancy pending the outcome of the negotiations, since the parties could not be taken to have intended that the periodic payments of rent would create a periodic tenancy when they were not agreed as to the terms on which the prospective tenant would occupy. Accordingly, where the parties were unable to agree the terms of the lease and the vendor gave notice to quit, at that stage the prospective tenant only had a tenancy at will.
Nicholls LJ said: ‘A periodic tenancy is one which continues from period to period until determined by proper notice’ and ‘When one party permits another to enter or remain upon his land on payment of a sum of money . . almost inevitably there will be some consensual relationship between them. It may be no more than a licence determinable at any time, or a tenancy at will. But when and so long as such parties are in the throes of negotiating larger terms, caution must be exercised before inferring or imputing to the parties an intention to give to the occupant more than a very limited interest, be it licence or tenancy. Otherwise the court will be in danger of inferring or imputing from conduct, such as payment of rent and the carrying out of repairs, whose explanation lies in the parties’ expectation that they will be able to reach agreement on the larger terms, an intention to grant a lesser interest, such as a periodic tenancy, which the parties never had in contemplation at all.’

Nicholls LJ, Mustill LJ, Ralph Gibson LJ
[1991] 1 All ER 243, [1991] 1 WLR 1007, [1990] EWCA Civ 1, [1990] 61 P and CR 164, [1990] 41 EG 61
Landlord and Tenant Act 1954 Part II
England and Wales
ApprovedSopwith v Stuchbury 1983
The tenant had been allowed into occupation of residential property pending agreement of the terms of a tenancy. He argued that he was a tenant at will.
Held: He was a mere licensee, and so was not entitled to go back on an agreed rent . .
CitedDoe Ex Dim Cheny v Batten 13-Feb-1775
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 . .
CitedWheeler v Mercer HL 31-Oct-1956
The freeholder sought possession of his premises occupied by the defendant over many years. The tenant said that he had the protection of the 1954 Act as a tenant at will. The landlord said that the occupation was not protected. The formal tenancy . .
CitedD’Silva v Lister House Development Ltd 1970
Even an unlawful sub-tenancy can have protection under Part II of the 1954 Act. The court described as fallacious the submission that section 74(1) does not extend to or answer the question whether the document has ever been delivered, saying: ‘The . .
CitedLongrigg, Burrough Trounson v Smith CA 1979
The defendant dealer in antiques also lived in the property with his wife. He refused to leave after the expiry of the term, claiming a Rent Act tenancy. The lessors had accepted rent from the defendant undertenant who contended that thereby a new . .
CitedHagee (London) Ltd v A B Erikson and Larson (a Firm) CA 1975
Tenancy at Will not protectable by 1954 Act
A tenancy at will falls outside the protection of the 1954 Act, though ‘parties cannot impose upon an agreement, by a choice of label, a nature or character which on its proper construction it does not possess’. Entry into possession while . .
CitedRogers v Pitcher 8-May-1815
In replevin proof of payment of rent to the avowant is prima facie evidence that he is the owner of the land. But in a case where the Plaintiff did not originally receive the possession of the land from the avowant, it is competent to the Plaintiff . .
CitedWilliams, Executor of Elizabeth Breedon, v Bartholomew 19-Nov-1798
If A, tenant for life subject to forfeiture, remainder over to B., lease to C. for a term, and afterwards apprehending that he has forfeited, acquiesce in B.’s claiming and receiving the rent from C., his executor may, on shewing that be acquiesced . .
CitedBishop v Howard 17-Jun-1823
Where A, who held premises under a lease which expired at midsummer, refused to give up the posseslsion at that time, and insisted upon notice to quit, and afterwards continued in possession till Christmas, and paid rent at Michaelmas and Christmas . .
CitedDoe D Lord v Crago CCP 12-May-1848
The lease had been granted for 99 years or until the earlier death of the last of three people. The assignee of the lease stayed in possession long after the death of such survivor, paying the rent as reserved. He said that the lessor had known of . .
CitedDoe, On The Demise of Bastow And Others v Cox 15-Nov-1847
A mortgagor retained possession pursuant to a mortgage which provided that he would hold the property as tenant at will, paying a specified yearly rent.
Held: There was an express provision that the tenancy was to be a tenancy at will. Despite . .
CitedMarcroft Wagons Ltd v Smith CA 1951
Denning LJ discussed the situation of a tenant holding over after his lease had expired: ‘If the acceptance of rent can be explained on some other footing than that a contractual tenancy existed, as, for instance, by reason of an existing or . .
CitedLewis v MTC Cars Ltd ChD 1974
The landlord served notice in a form which contained two alternatives, but he failed to strike out one. He added a statement as to why he opposed a new tenancy.
Held: The notice was effective.
Templeman J said: ‘No one reading that notice . .
CitedSopwith v Stutchbury CA 1985
The prospective tenant moved into the dwelling-house before the terms had been finalised. The court was asked as to his status between entering and the execution of the tenancy agreement.
Held: He was a mere licensee.
Stephenson LJ said: . .
CitedCardiothoracic Institute v Shrewdcrest Ltd ChD 1986
The landlord hoped to redevelop a site. The defendant was in possession as a business tenant pursuant to three successive leases for which orders had been made under section 38(4) of the 1954 Act excluding the operation of sections 24 to 28 of the . .

Cited by:
CitedHussein Walji, Zulikar Walji, Mohammed Iqbal Walji, Hussain Walji v Mount Cook Land Limited CA 21-Dec-2000
The claimants sought a new lease under the Act. They were assignees and sureties of an underlease of the premises, but a new underlease had been taken by a company through which the partnership had intended to trade. The partnership had paid rent in . .
CitedEvans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
CitedParker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
CitedBanjo v London Borough of Brent CA 17-Mar-2005
The tenant had occupied the premises under a long lease which expired by effluxion of time. The landlord failed to take any steps to retake possession, and the tenant continued as a tenant at will, paying no rent. The landlord eventually issued . .
CitedMattey Securities Limited v Ervin, Sutton, Mitchell CA 3-Apr-1998
After the insolvency of an assignee of a lease, the landlord talked with possible new tenants, and the original lessee now said that the landlord had impliedly accepted a surrender of the original lease, thus releasing him from continuing liability. . .
CitedClear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
CitedBennett Properties v H and S Engineering QBD 14-Oct-1998
The parties had been landlord and tenant and the lease was to be renewed for a second time. They negotiated and ageed terms for the next lease, including particularly a new rent, but the tenant did not execute the new lease. The landlord had . .
CitedLaine v Cadwallader CA 26-May-2000
The landlord granted an assured shorthold tenancy for six months fixed at andpound;390 ‘per calendar month payable every two months in advance’. Clause 5 allowed the tenant to terminate the agreement with ‘at least one month’s written notice’. The . .
CitedQFS Scaffolding Ltd v Sable and Another CA 17-Jun-2010
The parties disputed whether a lease from S to LDC had been surrendered. S and QFS were negotiating for a renewal lease. No new lease having been agreed the parties agreed to a monthly sum to be paid pending agreement. L then let to a third party . .
CitedAscot Estates Limited v Gentlefair Limited, Mundow, Ennis CA 5-Jun-1997
. .
CitedDreamgate Properties Limited v Arnot CA 18-Jul-1997
. .
CitedLondon Baggage Company v Railtrack Plc (No. 1) ChD 17-Apr-2000
Claim for a declaration that a tenancy was held under the 1954 Act. . .
CitedWilliam Watson Stirling v Leadenhall Residential 2 Ltd CA 29-Jun-2001
Held. A tenant who continued to stay in property after a possession order was granted, but who paid a sum equivalent to rent as it fell due, and something off the arrears, did not necessarily thereby become a tenant again, but could be viewed as a . .
CitedA Property Company v HM Inspector of Taxes SCIT 5-Oct-2004
SCIT SCHEDULE A – income from land – whether agreements for lease gave rise to an immediate right to rent or whether the right was conditional on obtaining the landlord’s consent to subletting – whether the . .
CitedClear Channel UK Ltd v Manchester City Council ChD 14-Dec-2004
. .
CitedManton Securities Ltd v Nazam (T/A New Dadyal Cash and Carry) CA 17-Jul-2008
. .
CitedHutchison and others v B and DF Ltd ChD 3-Oct-2008
The claimants sought an order declaring that the defendant had a tenancy and requiring it to execute an appropriate lease. The landlords said that the tenant had a continuation lease under the 1954 renewal procedure, and the tenants said they had . .
CitedKatana and Another v Catalyst Communities Housing Ltd CA 28-Jan-2010
The defendants sought leave to appeal against an order for possession. The landlords were to sell the property to a housing association and let the property to tenants for three months and thereafter terminable on one month’s notice. The tenant had . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.188288