Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th January 1995, although the third anniversary of the commencement date was 13th January 1995.
Held: A tenant’s notice exercising a break clause in a lease was to be treated in the same way as other notices; minor irregularities are not to be taken to override the clear intention of the notice. The notice was defective by mis-stating the date upon which it was to operate by one day. The test is an objective one as to whether the true intended meaning can be seen: ‘The question is not whether 12 January can mean 13 January: it self-evidently cannot. The real question is a different one: does the notice construed against its contextual setting unambiguously inform a reasonable recipient how and when the notice is to operate under the right reserved?’ and ‘The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene.’ (Lord Steyn) As to interpretating a commercial contract: ‘In determining the meaning of the language of a commercial contract . . . the law . . . generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language.’ Appeal allowed (majority).
Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Clyde
Times 26-May-1997, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd CA 19-Jul-1995
A notice exercising a tenant’s or landlord’s right to break a lease, must be given precisely as required by the break clause in the lease.
Nourse LJ said that the last moment of time on one day is not the same as the first moment of time on . .
Distinguished – Sidebotham v Holland CA 1895
A house was let to the defendant as a yearly tenant ‘commencing on May 19 instant’, and on 17th November the landlord served a notice to quit ‘on 19th May next’.
Held: It related to a point of time which was held to be common to both dates and . .
Cited – Cadby v Martinez 1840
A clause in his lease allowed the tenant to determine it by notice expiring on Michaelmas day 1837. The tenant mistakenly gave notice to quit and deliver up the premises on 24 June 1837. The notice was expressed to be ‘agreeably to the covenants of . .
Overruled – Hankey v Clavering CA 1942
A lease term ran for 21 years from 25 December 1934. A break clause gave either party the right to determine the lease at the expiration of the first seven years, by six calendar months’ notice. The landlord gave notice to the tenant’s solicitors in . .
Cited – Gardner v Ingram 1889
‘Although no particular form need be followed, there must be plain, unambiguous words claiming to determine the existing tenancy at a certain time.’ . .
Cited – P Phipps and Co (Northampton and Towcester Breweries) Ltd v Rogers 1925
A notice to quit a lease should be so expressed as to expire on the relevant date. ‘The date of determination must be the right date.’ . .
Cited – Doe d Cox v Roe 1803
The landlord of a public house in Limehouse gave notice to quit ‘the premises which you hold of me . . . commonly called or known by the name of The Waterman’s Arms.’ However, the only property let by the landlord to the tenant was a public house . .
Cited – Carradine Properties Ltd v Aslam ChD 1976
Under a break clause in a lease, the relevant date upon which a notice given by either party under the clause might take effect was a date in September 1975, but the landlord’s notice in September 1974 specified a date in 1973. The date in 1973, had . .
Doubted – Micrografix v Woking 8 Ltd ChD 1995
The tenants gave a notice determining the lease on 23 March 1995 when under the relevant clause they could only have done so on 23 June 1995. Jacob J. held that, as the landlords knew that the date of determination could only be 23 June 1995, they . .
Cited – Delta Vale Properties Ltd v Mills CA 1990
A contract for the sale of land provided that, upon service of a notice to complete, the transaction should ‘be completed within 15 working days of service and in respect of such period time shall be of the essence’. The notices however substituted . .
Cited – Germax Securities Ltd v Spiegel CA 1978
A notice was deemed valid despite an error since the error was not in the operative party of the notice. . .
Cited – Sunrose Ltd v Gould 1962
In construing a document ‘the principle is that that is certain which the context renders certain.’ . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Norwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The ‘Vistafjord’) 1988
A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted. . .
Cited – Heap v Ind Coope and Allsopp Ltd 1940
MacKinnon LJ said: ‘The law as it stands does permit me to give effect to common-sense and decency.’ . .
Cited – Price v Mann CA 1942
The question was whether under the a notice to avoid disclaimer given by the landlord under the Act, requiring the tenant to retain the lease on the terms set out in section 10, was invalid because section 10 was irrelevant and by mistake inserted . .
Cited – Doe d Spicer v Lea 1809
A lease in the new style commencing on St Michael’s day gave notice to quit on the old Michaelmas date, but should have been given to expire on the new Michaelmas day. Extrinsic evidence that the party intended the other day was not admitted. A . .
Cited – In the Goods of R R Peel ChD 15-Mar-1870
The testator appointed ‘Francis Courtnay Thorpe, of Hampton . . Middlesex’ to be his executor. There was a Francis Courtenay Thorpe of Hampton, Middlesex. He was however only 12 years old and his father Francis Corbet Thorpe, of Hampton, Middlesex, . .
Cited – In re Fish CA 1894
The testator left his residuary estate to his ‘niece Eliza.’ He had no niece called Eliza but his wife had an illegitimate grandniece called Eliza, to whom the evidence of their relationship showed that he must have intended to refer, and also, as . .
Cited – National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children HL 1915
A Scotsman left his money to a beneficiary which he called the National Society for the Prevention of Cruelty to Children.
Held: The House refused to accept that a gift to the ‘National Society for the Prevention of Cruelty to Children’ should . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Garston v Scottish Widows’ Fund and Life Assurance Society ChD 1996
A lease allowed a break clause to be exercised on six month’s notice. The notice given was calculated by reference to the wrong date, the date of the lease, and not the term contained in it.
Held: The mistake was not sufficiently clear to . .
Cited – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .
Cited by:
Cited – Ravenseft Properties Ltd v Hall; White v Chubb; similar CA 19-Dec-2001
Parties appealed decisions as whether assured shorthold tenancy notices were valid despite errors.
Held: If, notwithstanding errors or omissions, the substance of the notice was sufficiently clear to the reasonable person reading it, then the . .
Cited – Garston and Others v Scottish Widows Fund and Life Assurance Society CA 1-Jul-1998
Notices served together breaking lease and requiring new lease but mistaking dates should be held valid where the combined intention was unmistakable, though on its own the mistaken statutory notice requiring new tenancy from wrong date would not . .
Cited – First Property Growth Partnership LP v Royal and Sun Alliance Property Services Ltd ChD 8-Mar-2002
The lease contained rent review provisions which required the landlord’s notice invoking the review to be issued within a certain period. The tenant claimed that the notice was issued out of time. The landlord contended that the words of the lease, . .
Applied – 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 – Garston and Others v Scottish Widows Fund and Life Assurance Society CA 25-Jun-1998
The lease demised property ‘from the 24th day of June 1985 for a term of twenty years’ with a break clause requiring six month’s notice. The break notice was mistakenly calculated from the anniversary of the lease, not the anniversary of the term. . .
Applied – McDonald and Another v Fernandez and Another CA 19-Jul-2003
The landlord served a notice to terminate a shorthold tenancy saying that he required possession on a certain day. The tenancy had been a periodic tenancy, and the date was not the last day of a period of the tenancy.
Held: The Act was . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Laminates Acquisition Co v BTR Australia Ltd ComC 31-Oct-2003
The claimant sought damages for breach of a company share sale agreement. The seller had given a warranty that it was not involved in any undisclosed litigation. An anti-trust investigation had been begun in the US.
Held: In this case the . .
Cited – York and Another v Casey and Another CA 16-Feb-1998
The plaintiffs let property to the respondents. The notice of shorthold tenancy issued prior to the tenancy commencing had obvious errors in the dates. The issue was as to its validity.
Held: The error was evident, the termination date . .
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 – Clickex Ltd v McCann CA 26-May-1999
A failure by a landlord under the pre-1996 assured shorthold tenancy regime, to insert the correct tenancy dates in a shorthold notice, meant that the tenancy became an assured tenancy, since the arrangement failed to meet the requirements to create . .
Cited – Barclays Bank plc v Bee and Another CA 10-Jul-2001
The landlord’s solicitors, by mistake, sent two notices to the tenant in the same letter. One notice opposed the grant of a new tenancy but on an invalid ground, and the other said a new tenancy would not be opposed. The tenant sought clarification. . .
Cited – Lay and others v Ackerman and Another CA 4-Mar-2004
Notices had been served by tenants under the Acts. The properties were on a large estate where the freeholds had been divided and assigned to different bodies, and there were inconsistencies in identifying the landlords. The landlords served a . .
Cited – Lemmerbell Limited and Another v Britannia LAS Direct Limited CA 8-Oct-1998
A break notice was served. The tenant had informally assigned the premises, and the break notice had been purported to be exercised by the assignee.
Held: The notice was invalid. ‘The present case seems to me to bear little resemblance to the . .
Cited – B Osborn and Co Ltd v Dior and others CA 22-Jan-2003
Notices were given which were incorrect.
Held: The notices were upheld despite the errors. . .
Distinguished – Proctor and Gamble Technical Centres Limited v Brixton Estates plc 2003
. .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Sirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Cited – Notting Hill Housing Trust v Roomus CA 29-Mar-2006
The landlord had served a notice to quit on his tenant. The notice specified that possession would be required ‘at the end of your period of your tenancy’ It was objected that the notice was ineffective.
Held: The notice must be interpreted to . .
Cited – Forrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Cited – Rennie v Westbury Homes (Holdings) Ltd ChD 7-Feb-2007
The parties had entered into an option agreement for development of land. The developer purported to exercise an option extendng the applicable period, but having accepted the funds, the land owner denied that it had been validly exercised.
Cited – Andrews and Another v Cunningham CA 23-Jul-2007
The elderly appellant claimed a non-shorthold assured tenancy. He had moved in in 1999, but had been given a rent book which described the tenancy as an assured tenancy. The now deceased landlord had himself occupied another flat in the building. . .
Cited – Megaro v Di Popolo Hotels Ltd CA 13-Mar-2007
Two properties had been in common ownership, but then divided. A fire escape on one property was to be available to the other. The servient tenement removed the fire escape. The owner of the dominent tenement (a hotel) sought relief.
Held: The . .
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Allianz Insurance Company- Egypt v Aigaion Insurance Company SA CA 19-Dec-2008
The parties set out to conclude a contract for insurance, but the final email omitted an essential warranty which had previously been agreed. The court was asked whether a contract had been concluded. The judge had found that the contract had been . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Cited – Eminence Property Developments Ltd v Heaney CA 21-Oct-2010
The court was asked whether a vendor of land, who served a notice to complete making the time for completion of the essence of the sale contract, and then, mistakenly, treated the contract as at an end prior to the expiry of the notice, was thereby . .
Cited – MW Trustees Ltd and Others v Telular Corporation ChD 31-Jan-2011
The claimants sought a declaration that its tenants had not served an effective notice to break the lease. The lease contained mandatory provisions for service of any notice, and the tenant’s break notice had been served, it said, on the wrong . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Quirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Sugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
Cited – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Contract
Leading Case
Updated: 18 December 2021; Ref: scu.158894