Variation of Tenancy Termination Date requires more than Alternative Dates

Article

07 July, 2009

A Notice to Quit is one of the most commonly used documents in landlord and tenant matters. Its purpose is to make one party to the agreement (either the landlord or the tenant) aware of the other side's intention to end the contractual arrangement and for the tenant to leave the property, whether through choice or otherwise.

The issue of what happens when there is ambiguity or confusion over a particular term of the Notice to Quit can be the source of litigation and one recent example of this was in Wajid Hussain v Bradford Community Housing Association & Shabana Kauser (2009) which was heard on 17 June 2009 in the High Court.

The Facts

The appellant (H) was appealing against the decision of the Association to end his joint tenancy with Kauser (K), who was his former partner. H and K had a joint weekly tenancy agreement, which always ended on a Friday. There was a clause in the tenancy agreement which stated that the tenants should give 28 days' written notice when they wished to terminate the contract.

The relationship between H and K broke down and consequently the Association and K issued a Notice to Quit with effect from the last Sunday of the month, or the last day of the periodic tenancy after a period of four weeks. The Association then wrote to K stating that if it did not receive an offer of accommodation before the termination date, it could hold the tenancy over for her.

H submitted at court that the notice was ambiguous, as it gave two alternative termination dates and that the contra preferentum rule ought to apply which would mean that the notice had to be interpreted against the Association and K and therefore Notice to Quit was being given from the Sunday. H argued in the alternative that he and K had agreed to vary the notice, as evidenced in the letter sent from the Association and because rent was being paid up until the final Sunday of the month.

The High Court's Decision

In rejecting H's appeal, the High Court ruled that whilst it was true to say that the Notice to Quit offered two different dates, it was only the Friday option which complied with the tenancy's clause. There was no other basis upon which to construe that the notice excluded the 'catch-all' provision in the tenancy. This provision had been inserted in the agreement to ensure that the tenancy in question did indeed terminate at the end of a period of the tenancy. The court ruled that this would have been the way that the Association read the clause and therefore, the Notice to Quit took effect on the Friday.

In relation to H's alternative argument, the court was of the view that it was difficult to accept. It had not been raised during the trial and there was no evidence to support H's claims in relation to the payment of rent. On the contrary, although rent was paid until the last Sunday of each month, advance payment was the normal arrangement between the parties. Additionally, the court considered that the letter sent by the Association to K did no more than indicate what it would do if K was not able to find any alternative accommodation and that there had been no reference to the variation of the Notice to Quit. The court concluded that the letter could not have altered the termination date in the notice and that the payment of rent could not affect a valid Notice to Quit.

The court also rejected H's claim that there had been agreement to vary the notice. It was deemed to be standard practice for one individual in a joint tenancy to serve a Notice to Quit and consent from the other party was not required.

Summary

The case has shown that the courts are reluctant to interfere with the validity of a Notice to Quit which has complied with all the necessary requirements. It therefore shows the importance of ensuring that such documents are completed correctly and are drafted in an unambiguous manner, in order to avoid similar disputes in the future.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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