Landlord’s notice to quit valid despite being addressed to a person who was not the tenant

27/05/2022

1. In Thomas v Turner [2022] EWHC 1239 (Ch) on 26 May 2022, Mr Justice Zacaroli held that a notice to quit a tenancy protected by the Agricultural Holdings Act 1986 addressed to and served on the original tenant shortly after he had assigned the tenancy, without the landlord’s knowledge, to a company of which he was sole shareholder, sole director and company secretary, was effective to terminate the tenancy in the hands of the company, no counter-notice having been served. In so doing, Zacaroli J dismissed the company’s appeal against the order of His Honour Judge Jarman QC that the notice was valid, by applying the test of Goulding J in Carradine Properties Ltd v Aslam [1976] 1 WLR 442, 444G approved by the House of Lords in Mannai v Eagle Star [1997] AC 747, 772C: “Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?”

2. Mr Thomas was granted a tenancy of the land at Pentre Canol, Dyffryn Ardudwy by an oral agreement which contained no prohibition against assignment, on an unidentified date but it was common ground that the tenancy was subject to the 1986 Act. On 30 October 2019 Mr Thomas incorporated OG Thomas Amaethyddiaeth Cyf, in English OG Thomas Agriculture Ltd, of which he was the only officer and shareholder and company secretary, and which had its registered office at his home address.

On 1 November 2019 Mr Thomas executed the deed of assignment which it was accepted vested the tenancy in the company and thereafter Mr Thomas was the person responsible for farming the land on behalf of the company. On 4 November 2019, Mr Owen, the executor of the deceased landlord, who
had not had notice of the assignment, sent the notice to quit to Mr Thomas by recorded delivery post to his home address where Mr Thomas received it. The notice was addressed to Mr Thomas, and it was stated that it was to “give you notice to quit and deliver up possession of [the land] … which you
hold of me as tenant” on a specified date. Neither Mr Thomas nor the company served a notice requiring section 26 of the 1986 Act to apply to the notice, which would have forced Mr Owen to obtain consent to its operation from the Agricultural Land Tribunal.

3. The single ground of the company’s appeal was that the judge was wrong to hold that the notice to quit was capable of being interpreted, by application of the Mannai test, as being addressed to and served on the company, in circumstances where the reasonable recipient of the notice knew that the
server of the notice was unaware of the existence of the current tenant, the company.

4. Old Grovebury Manor Farm Ltd v W Seymour Plant Sales and Hire Ltd [1979] 1 WLR 1397 is authority for the proposition that where a lease has been assigned a notice to quit, or a section 146 notice as in that case, served on the assignor is ineffective even if, as in that case, the assignment was in breach of the terms of the lease. Notice had to be given to the assignee to be effective. However, the company accepted that if the notice to quit is to be construed as being addressed to the company, then by delivering it to Mr Thomas it was effectively served on the company, whether because Mr Thomas was the agent of the company or by application of the deemed service provisions in section 93 of the 1986 Act permitting service on the company secretary and the person responsible for farming the land. The company also accepted that if the notice to quit had been addressed to ‘the tenant’ it would have been a valid and effective notice delivered to the company, for the same reasons.

5. The company argued that the notice being addressed to Mr Thomas was fatal to its validity. This was because, while the reasonable recipient of the Mannai test would appreciate that the notice contained an error because it was addressed to Mr Thomas and not the tenant, the company, such a recipient would know that the meaning the landlord intended to convey was precisely what was written in the notice, with the addressee as Mr Thomas, because, not knowing of the assignment, the landlord could not have intended anything else. The company argued that, although the process of construction of the notice is an objective one, the critical issue is what the reasonable recipient would, objectively, have understood as to the meaning which the landlord, subjectively, intended to convey.

6. Zacaroli J did not accept those submissions. Given that the 1986 Act lays down no requirements as to the form or content of a notice to quit, that a notice may be given orally and if in writing need not identify the tenant by name, the critical requirement is that the notice conveys to the tenant an instruction to quit the premises the subject of the lease. The Mannai test is whether, in the context in which the notice is served, the reasonable recipient would have understood the notice to have been addressed to the company as tenant. The relevant context included the fact that the notice correctly identified the lease as one granted to ‘you’, Mr Thomas, and correctly identified the land and the fact that the lease had been assigned and the landlord was unaware of that. On the basis of those facts Zacaroli J was satisfied that the reasonable recipient would have been in no doubt that the notice was intended to convey an intention to require the person who was in fact the tenant to deliver up possession of the land. Since the reasonable recipient would have known that the company was the tenant, he would have understood the notice to be addressed to the company.

7. Zacaroli J rejected the contention that the subjective intentions of the landlord have a part to play in the construction process, saying at [41]-[42]:

As was emphasised by the House of Lords in Mannai on numerous occasions, construction, even of a unilateral notice, is an objective process: what matters is what the Notice would be understood to mean to the reasonable recipient. In answering that question, I regard the Landlord’s subjective intention as irrelevant. I accept that the Landlord’s actual knowledge (or, more importantly, what the reasonable recipient would have known as to the Landlord’s actual knowledge) is a relevant factor. It is a relevant part of the context. In this case, it provides an obvious explanation for why the Landlord addressed the Notice to Mr Thomas and demonstrates how and why it contains an obvious error. That is relevant to the conclusion the reasonable recipient would reach, that the landlord intended to serve it on the person who was in fact the tenant, but mistakenly identified Mr Thomas as that person.

8. At [42] Zacaroli J rejected the submission that this was to fall into the trap of the extreme argument rejected by Lord Steyn in Mannai (at 773B-C): “that whenever a notice to determine refers to a break clause, and whatever the other circumstances of the case, the notice must be valid.” 

Rather, the Judge’s approach (and the claimants’ argument on this appeal) is an orthodox application of the test as expressed by Goulding J in Carradine Properties Ltd v Aslam (approved by both Lord Steyn and Lord Hoffmann in Mannai): the Notice was quite clear to a reasonable tenant reading it, in that it would be obvious that it was intended to be addressed to the Company because it was the Company alone that met the description of the person holding the Land under the Lease from Mr Owen. It is plain, in my judgment, that the reasonable recipient could not have been misled by the Notice.

9. Having reached that conclusion it was unnecessary for Zacaroli J to address the arguments raised by the respondent’s notice, namely that, assuming that the notice to quit was correctly construed as being addressed to Mr Thomas, section 93 of the 1986 Act saved the notice because it was addressed to the company secretary and to the person responsible for the farming of the land on behalf of the company tenant.

10. The facts of this case are unusual, not least the omission to serve a counter-notice, but the message to take away is that, in cases of any doubt a notice to quit should be addressed to ‘the tenant’ or to the named person believed to be the tenant ‘or such other person who is the tenant’.