Leek and Moorlands Building Society v Clark: CA 1952

The court was asked whether one of two joint lessees could validly surrender the lease before the full period of the lease had run without the concurrence of the other joint lessee.
Held: Somervell LJ was in favour of the defendant lessees: ‘Counsel for the plaintiffs sought to rely on Doe d. Aslin v. Summersett as supporting a submission that Mr. Ellison, by what he did, had brought the joint tenancy to an end. That case was dealing with a lessee from year to year of land which he held from two joint lessors. A notice to quit was served signed by one only of the joint lessors. It was argued that the other lessor had adopted the notice, but Lord Tenterden, who delivered the judgment of the Court of King’s Bench, held that without any such adoption a notice to quit by one of the joint lessors, who were joint tenants, put an end to the tenancy as to both.
The ratio of the decision is, we think, to be found in the following sentence: ‘Upon a joint demise by joint tenants’ – that is, the lessors in that case – ‘upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please, and as soon as any one of the joint tenants’ that is, the lessors in that case – ‘gives a notice to quit, he effectively puts an end to that tenancy.’ It is to be noted that Lord Tenterden was dealing with a notice to quit in respect of a periodic tenancy. He was not dealing with a right to determine a lease for say 21 years at the end, say, of the seventh or fourteenth year.
Nor was he dealing with surrender.
There is, we think, force in the submission made on behalf of the plaintiffs, that in the case of a periodic tenancy Lord Tenterden’s principle would apply when there were joint lessees. A periodic tenancy continues from period to period unless the notice agreed or implied by law is given. But if one of two joint lessees who ‘hold the whole’ wishes it not to continue beyond the end of a period, it might well be held that it did not continue into a new period. That would happen only if all, that is, the joint lessees, shall please.
If one considers a lease to joint lessees for a term certain with a right of renewal, it would be obvious, we think, that both must join in requiring a renewal. A periodic tenancy renews itself unless either side brings it to an end. But if one of two or more joint lessees does not desire it to continue, we would have thought that it was in accordance with Lord Tenterden’s principle, and with common sense, that he should be able to make that effective.’
He continued: ‘Even if we are wrong in what we have said with regard to a right to determine within the period of the lease as distinct from a right to terminate a periodic tenancy, we would have thought it plain that one of two joint lessees cannot, in the absence of express words or authority, surrender the rights held jointly. If property or rights are held jointly, prima facie a transfer must be by or under the authority of all interested. The answer suggested to this is the principle laid down in Doe d. Aslin v. Summersett. That case, for reasons which we have given, is not in our view an exception to the rule we have just stated. It is an illustration, in a highly technical field, of the general principle that if a joint enterprise is due to terminate on a particular day, all concerned must agree if it is to be renewed or continued beyond that day. To use Lord Tenterden’s phrase, it will only be continued if ‘all shall please.”

Judges:

Somervell LJ

Citations:

[1952] 2 QB 788

Citing:

ExplainedDoe d Aslin v Summersett KBD 1830
Majority of Trustees May Exercise Power
The freehold in land which was let on a yearly tenancy was vested jointly in four executors of a will to whom the land had been jointly devised. Three only of the executors gave notice to the tenant to quit. The fourth objected.
Held: The . .

Cited by:

CitedHammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
CitedGreenwich London Borough Council v McGrady CA 1982
A notice to quit given by one of two joint tenants without the consent of the other was effective to determine the periodic tenancy to which it related.
Sir John Donaldson MR said: ‘In my judgment, it is clear law that, if there is to be a . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 01 May 2022; Ref: scu.272273