The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. After the expiry of the maximum period of four months, when it was too late for the tenant to apply, the landlord’s solicitors informed the tenant that it would make a preliminary objection at the hearing that the tenant’s application was invalid.
Held: The time limit was procedural or technical, not one of jurisdiction, and as such the landlord could waive the breach. The landlord had done so. The task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. The question was treated as a question of statutory construction: was it the intention of Parliament to preclude the parties from agreeing that a notice given by one of them to the other should have effect even though the statutory requirements were not satisfied? ‘And apart from this distinctive feature of this particular statute, where in any Act which merely regulates the rights and obligations of private parties inter se requirements to be complied with by one of those parties are imposed for the sole benefit of the other party it would be inconsistent with their purpose if the party intended to be benefited were not entitled to dispense with the other party’s compliance in circumstances where it as in his own interest to do so . . Upon the purposive approach to statutory construction this is the reason why in a statute of this character a procedural requirement imposed for the benefit or protection of one party alone is construed as subject to the implied exception that it can be ‘waived’ by the party for whose benefit it is imposed even though the statute states the requirement in unqualified and unequivocal words. In this context ‘waived’ means that the party has chosen not to rely upon the non-compliance of the other party with the requirement, or has disentitled himself from relying upon it either by agreeing with the other party not to do so or because he has so conducted himself that it would not be fair to allow him to rely upon the non-compliance.’
Waiver is far from a precise term of art. It was used in a wider sense of a deliberate decision by a party not to stand on his strict rights, by not taking a technical point as to the validity of a notice.
Judges:
Lord Diplock, Viscount Dilhorne
Citations:
[1971] AC 850, [1971] 1 WLR 1751, [1970] 2 All ER 871
Statutes:
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 – Peyman v Lanjani CA 1985
Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Cited – Walbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Lists of cited by and citing cases may be incomplete.
Estoppel, Landlord and Tenant
Updated: 29 April 2022; Ref: scu.188153
