17.3.1.3.Periodic tenancies

Leases and bailment 617

by the courts until 1702, by which time it had become common in practice as a means of giving tenants a marginally less precarious interest than the tenancy at will, as Simpson notes in A History of the Land Law (Extract 17.1 below), and analysis of its nature can still cause the courts difficulty, as can be seen from

Hammersmith and Fulham London Borough Council v. Monk [1992] 1 AC 478, discussed below.

In practice, the precariousness of a periodic tenant’s interest is lessened by three factors. First, the courts strictly enforce common law and statutory regulations as to the length of notice required to terminate periodic tenancies (as to which see sections 5 and 3 of the Protection from Eviction Act 1977, as amended by the Housing Act 1988, and also Queens Club Garden Estates Ltd v. Bignell [1924] 1 KB 117). Secondly, statutory regimes applicable to residential, business and agricultural tenants (which are beyond the scope of this book) confer varying degrees of security of tenure on periodic tenants.

Contractual fetters on notice to quit

Thirdly, the parties themselves may decide to include as a term of the tenancy a contractual fetter on the landlord’s (or the tenant’s) right to terminate by serving notice to quit. This will usually take the form of a postponement of the right to serve notice to quit until a specified future date or the happening of a future event. The courts’ approach to these restrictions on the right to terminate by notice to quit is markedly different from their approach to contractual rights to terminate fixed-term tenancies early. They will treat any such restriction as invalid not only if it is uncertain but also if it is repugnant to the nature of a periodic tenancy. A restriction which removes the landlord’s right to serve notice to quit altogether comes within this latter category, and is therefore void (Centaploy Ltd v. Matlodge Ltd [1974] Ch 1) and presumably it would be equally repugnant to the nature of the periodic tenancy to have a provision removing the tenant’s right to serve notice to quit. However, it is not clear whether a very long postponement of either party’s right to terminate by notice to quit would be void on repugnancy grounds. Doe d Warner v. Browne (1807) 8 East 165; 103 ER 305, and Cheshire Lines Committee v.

Lewis & Co. (1880) 50 LJ QB 121, discussed in Lord Templeman’s speech in Prudential (below), would seem to suggest that, but in Midland Railways Co.’s Agreement, Charles Clay & Sons Ltd v. British Railways Board [1971] Ch 725, the Court of Appeal expressed the view that nothing short of a complete removal of either party’s right to terminate would fall foul of the repugnancy rule (Russell LJ at 733, giving the judgment of the Court). The decision in Midland Railway Co.’s Agreement was overruled by the House of Lords in Prudential (below) on the question of when a postponement of the right to serve notice to quit would be void for uncertainty, but nothing was said about the separate question of when it would be void for repugnancy.

As to the requirement of certainty, this is much stricter than in the case of break provisions. Where the right to serve notice to quit is postponed until the