Periodic Tenancies. Certainty of Term.

Repugnancy
Author(s): D. MacIntyre
Source: The Cambridge Law Journal , Nov., 1971, Vol. 29, No. 2 (Nov., 1971), pp. 198-201
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal

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198 The Cambridge Law Journal [1971]

most traffic accident cases the nominal defendant

pipe for the transfer of liability to an insurer, or ev
of statutory duties of insurance. If, as would see
criminal and the civil law are to be brought into line
what is needed is a rule that the owner (or hirer), as
is vicariously liable for the negligence of all permitte
the policy extends its indemnity to permitted driver
such a rule would make no difference in practice
already liable without it. But where the policy c
liability alone, then the suggested rule would no
victims of the driver's negligence but would also
from criminal and from uninsured civil liability
case does not go so far as to impose vicarious liab
mitted driving, but if it marks a step towards such a
in the right direction.
J. A. Jolowicz.

PERIODIC TENANCIES—CERTAINTY OF TERM—REPUGNANCY

Until the decision of the Court of Appeal in Re Midland R

Co.'s Agreement [1971] Ch. 725 it was widely thought
distinguishing characteristic of leasehoid estates is that their m
duration is fixed in time (see Megarry and Wade, The Law
Property, 3rd ed., p. 44). In one sense, of course, as Ru
observed in this case (at p. 732) the maximum duration of a
tenancy is always uncertain, since no one can know at the t
the tenancy is created for exactly how long it is going to l
periodic tenancy is treated as a grant for a single period, which
automatically from period to period, until the length of the on
term is finally determined by the service of a notice to qu
has hitherto been widely accepted by textbook writers that
any given moment the term of a periodic tenancy can be re
definite or at least potentiaily definite, the rule against l
uncertain maximum duration applies to periodic tenancies,
the ordinary periodic tenancy is not affected by it (see, for
Megarry and Wade, op. cit., pp. 44, 639). The Court of Ap
now held, however, that the rule that an estate of leasehoid
certain in its maximum duration does not apply at all to p
tenancies: and they went on to hold that a provision in a
agreement, which restricts a landlord's right to terminate the
by notice to quit save on the happening of a future uncerta
is not repugnant to the nature of a periodic tenancy.
The tenancy was a half-yearly business tenancy determinabl
clause 2 of the tenancy agreement by either party on givin

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C.L.J. Case and Comment 199

other three months' notice to

clause 2 added that " this agreeme
landlords until they shall require
undertaking." The landlords, w
but merely wished to obtain a hig
served six months' notice to term
and Tenant Act 1954, s. 25, and st
not oppose an application to the
Act. On an application by the ten
lords' notice was invalid and of no
the proviso to clause 2 either (a
on the ground of uncertainty o
merely an implied half-yearly ten
and payment and acceptance of
repugnant to the nature of a p
should be struck out of the agree
In rejecting the contention b
Russell L.J., who delivered the
it is too late to question the doc
validly created, the maximum d
tained before the lease takes effect and that a lease " for the duration
of the war" is no lease on that ground (see Lace v. Chantler [1944]
K.B. 368). But he went on to observe that the same result can in
substance be achieved by the grant of a lease for a long term of years
determinable upon the happening of the uncertain event; and he
continued:

We mention this only to show that the subject matter under con¬
sideration has an air of artificiality, of remoteness from practical
considerations: and in such circumstances we think the court
should be unwilling to be moved by some process of logic to
travel further than authority compels in the direction of holding
that what parties to a transaction in plain English agreed is
something impossible in law and therefore void (p. 732).
Adopting this approach, the court distinguished Lace v. Chantler on
the ground that in that case the Court of Appeal was solely concerned
with an attempt to create a leasehold interest for a single and uncertain
period, and that the applicability of the doctrine of certainty of term
to a periodic tenancy was not under consideration. They also rejected
an argument on behalf of the landlords, which they nevertheless found
logically attractive, to the effect that the power of either party to an
ordinary periodic tenancy to define the maximum duration of the
term by giving notice to quit provides the necessary degree of certainty
in that neither party is left in a " state of unknowing " what is his
maximum commitment to the other; but that where, as in the present

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200 The Cambridge Law Journal [1971]

case, one or other party is deprived of that power unti

of an event, which may never happen, that party is
unknowing, so that the term should be held void f
Although they were impressed by the logic of this arg
of Appeal was persuaded in the end that
there being no authority to prevent us, it is prefer
of justice to hold the parties to their clearly ex
rather than to introduce for the first time in 1971 an extension
of a doctrine of land law so as to deny the efficacy of that
bargain (p. 733).
On the question of repugnancy the landlords relied on Doe d.
Warner v. Browne (1807) 8 East 165 and, more particularly, on
Cheshire Lines Committee v. Lewis & Co. (1880) 50 LJ.Q.B. 121,
where the facts were very similar to those in the present case. In
Warner v. Browne a provision that the lessor should not turn out the
tenant so long as he paid the rent and did not sell any article injurious
to the lessor's business was held repugnant to a yearly tenancy on the
ground that the option of determining the tenancy rested solely with
the tenant; and in the Cheshire Lines Committee case Lush J. at first
instance and Brett LJ. in the Court of Appeal held (applying Warner
v. Browne) that an undertaking by the landlords (which, in their view,
was incorporated in the agreement between the parties) that the
tenants should have the premises " until the railway company require
to pull them down " was repugnant to a weekly tenancy. But this
case was decided on the ground that it was indistinguishable from
Warner v. Browne. As Foster J. pointed out in the present case in
the court below ([1970] Ch. 568, 573), it does not decide that a clause
restricting the right of one or other party to serve notice to quit is
repugnant to a periodic tenancy. Moreover in a number of modern
cases upon which the tenant relied {i.e., Simonds {H. & G.) Ltd. v.
Heywood [1948] 1 All E.R. 248, Breams Property Investment Co. Ltd.
v. Stroulger [1948] 2 K.B. 1, Wallis v. Semark [1951] 2 T.L.R. 222)
the courts have held that an agreement by the parties to a periodic
tenancy to restrict the right to serve notice to quit which would other¬
wise be implied by law is not repugnant to a periodic tenancy; and in
Breams Property Investment Co. Ltd. v. Stroulger, which was a
decision of the Court of Appeal, both Warner v. Browne and the
Cheshire Lines Committee case were cited in argument. Upon this
point the Court of Appeal recognised that an attempt to prevent a
landlord ever determining a periodic tenancy might well be rejected as
repugnant to the nature of the tenancy; but short of that they saw " no
reason why an express curb on the power to determine which the
common law would confer upon the lessor should be rejected as
repugnant to the nature of the leasehoid interest granted " (p. 733).

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 CLJ. Case and Comment 201

The modern cases do indeed differ from the Cheshire Lines Committee
case in that no element of uncertainty of duration existed in any of
them. But, said Russell L.J. (at pp. 733-734), " once the argument
based on uncertainty is rejected we see no distinction in the present
case." Here again the court approached the problem on the footing
that effect should be given, if possible, to the agreement of the parties.
This important and, if one may respectfully say so, somewhat bold,
decision has much to commend it, since it is clearly desirable that a
freely negotiated agreement between the parties should not be frustra¬
ted by an ancient doctrine of common law, if it is at all possible to
avoid that result. But it is difficult to see why, as a matter of logic,
the situation in the present case should differ from the situation in
Lace v. Chantler; and the Court of Appeal did not offer any answer
to the argument of counsel for the landlords on this point. Nor is it
easy to see why, as a matter of justice, it should not be possible to
grant a lease for a single but uncertain period, provided that the
uncertain event upon the happening of which the lease is to come to
an end is clearly defined. But a reform of the law on that point
would, it seems, require legislation.
D. Macintyre.

PLANNING PERMISSION AND EXISTING USES—ENFORCEMENT NOTICES

What is the effect of a grant of planning permission and conseq

development on existing rights of user? This question, on which
authorities are strangely scanty, fell to be considered by the Qu
Bench Divisional Court (Lord Parker CJ., Widgery LJ. and Brid
J.) in Petticoat Lane Rentals Ltd. v. Secretary of State for the Enviro
ment {191 V\ 1 W.L.R. 1112.
The appellants, Petticoat Lane Rentals, took a lease of a clear
bombed site in Stepney soon after the Second World War. For m
years, both on Sundays and on weekdays, they sublet stall space
various street traders and the use of the site as a market became
existing use right. In 1963, Costains, the builders, applied for,
obtained, planning permission to redevelop the site as offices and wa
houses. A building was erected in accordance with the permissi
The building was carried on pillars, and at street level there w
paved area, open to the street, intended for use as a car park a
loading bay. This paved area was leased to the appellants. On Su
days, when the area was not being used as a car park and loading
the appellants, with the consent of the local planning authority,
the area for market trading, as part of the celebrated Petticoat
street market.

The appellants, however, also used the area for market tradin

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