Smith v Grayton Estates Ltd: SCS 1960

The Court was asked whether a tenancy continuing from year to year after the expiry of a fixed term by virtue of the 1949 Act was determined by notice given by one of two joint tenants.
Held: The notice was effective.
Lord President Clyde said: ‘In considering this matter, it is of importance to realise that in the present case the tenants were occupying under tacit relocation, in other words, that the tenancy was being prolonged from year to year beyond the stipulated term in the lease, but that otherwise the conditions in the lease continued to operate – see Rankine, Law of Leases, p. 601; Cowe v. Millar, reported only in Connell on The Agricultural Holdings (Scotland) Act 1923, p. 346, per Lord President Clyde at p. 355. The question comes to be whether, in that situation, a timeous notice by one of the two joint tenants is invalid to bring the tenancy to an end. The argument for the appellant was that a valid notice must be from both the joint tenants, and this notice, not being a joint one, consequently is bad.
But, is I see it, this argument overlooks the meaning and effect of tacit relocation. Tacit relocation is not an indefinite prolongation of a lease. It is the prolongation each year of the tenancy for a further one year, if the actings of the parties to the lease show that they are consenting to this prolongation. For, as in all contracts, a tacit relocation or reletting must be based on consent. In the case of tacit relocation the law implies that consent if all the parties are silent in the matter. Hence, where there are joint tenants, tacit consent by both of them is necessary to secure the prolongation and to enable tacit relocation to operate. Silence by both is necessary to presume that both the tenants wish the tenancy to continue for another year. On the other hand, if both are not silent, and if one gives due notice of termination, the consent necessary for tacit relocation to operate is demonstrably not present, and tacit relocation will not operate beyond the date of termination in the notice. Clearly, in the present case, there is not such tacit consent, and, in my view, a notice by one of the two joint tenants is enough to exclude the further operation of tacit relocation.


Lord President Clyde, Lord Sorn


1960 SC 249


Agricultural Holdings (Scotland) Act 1949

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 10 May 2022; Ref: scu.272274