Wheeler v Mercer

Part II of the Landlord and Tenant Act 1954 does not protect a tenancy at will. The statutory definition of “tenancy” is ambiguous in that respect and must be read with the machinery governing the continuation, termination and renewal of tenancies.

Section 25 divides protected tenancies into those which can end by notice to quit and those which end by effluxion of time. A tenancy at will falls into neither class. Its omission from that comprehensive scheme shows that Parliament did not intend Part II to apply to it.

The appellant owned a shop occupied by the respondent. Her quarterly tenancy ended in September 1953, but she remained in exclusive possession with the appellant’s assent while negotiations for a new lease continued. The County Court held that she was a tenant at will protected by Part II of the Landlord and Tenant Act 1954 and dismissed the possession claim. The Court of Appeal unanimously affirmed that decision.

The appellant appealed to the House of Lords. The principal questions were whether the respondent occupied as a tenant at will and, if so, whether Part II of the 1954 Act protected such a tenancy.

1. The appeal was allowed unanimously. The Court of Appeal’s order was reversed, except as to costs, and the County Court’s order was discharged on the same basis. The appellant was declared entitled to possession and mesne profits. The cause was remitted to the County Court to determine the amount of those profits.

2. Viscount Simonds, Lord Cohen and Lord Somervell held that the respondent was a tenant at will. Lord Keith concurred in Viscount Simonds’s opinion. Her continued exclusive possession during negotiations for a new lease, particularly after asserting rights under the Landlord and Tenant Act 1927, occurred with the landlord’s positive assent. She was therefore neither a licensee nor a tenant at sufferance. Lord Morton considered the point difficult and found it unnecessary to reach a concluded view.

3. All members of the House held that Part II of the Landlord and Tenant Act 1954 did not protect a tenancy at will. Viscount Simonds regarded the expression “tenancy agreement” in section 69(1) as ambiguous in scope. Lord Morton, Lord Cohen and Lord Somervell likewise treated the definition as insufficient by itself to resolve the question. The Act therefore had to be construed as a whole.

4. Section 25 resolved the ambiguity. Per Lord Cohen and Lord Somervell, subsections (3) and (4) were intended to cover all tenancies protected by Part II. Subsection (3) addressed tenancies terminable by notice to quit, while subsection (4) addressed every other protected tenancy by reference to effluxion of time. A tenancy at will ends by neither method. Its omission from this comprehensive termination machinery showed that it fell outside Part II.

5. Viscount Simonds and Lord Morton found additional support in sections 23 to 29 and section 43(3). Those provisions were framed for periodic tenancies and terms certain, and section 29 could otherwise compel the grant of a new tenancy where that result would be inappropriate. Viscount Simonds left open whether an exceptionally express contractual tenancy at will might constitute a “tenancy agreement” considered apart from the wider statutory context.

1. House of Lords: Allowed the appeal unanimously. Reversed the Court of Appeal’s order and discharged the County Court’s order, both except as to costs. Declared the appellant entitled to possession and mesne profits, and remitted assessment of the profits to the County Court.
2. Court of Appeal: Unanimously dismissed the landlord’s appeal on 24 October 1955 and affirmed the County Court’s decision.
3. Tunbridge Wells County Court: Dismissed the possession claim on 28 July 1955 after holding that the occupier was a tenant at will protected by Part II of the Landlord and Tenant Act 1954. The claim for mesne profits was adjourned.