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Taking "Notice" of the Landlord & Tenant Act 1954

Where a landlord of business premises serves notice, terminating the tenancy under the Landlord & Tenant Act 1954, the tenant is required within two months to indicate, in writing, whether or not he will be willing to give up possession of the property. The courts cannot extend the two month period and hitherto have generally adopted a strict approach so that a failure to serve a counternotice in time means that the tenant loses any right under the Landlord & Tenant Act 1954 to renew the tenancy. In Pennycook –v- Shaws Ltd, however, the court qualified this position. What happened is that the tenant's solicitor had purported to serve a notice using a pro forma, reading, "Take notice I/we will (not) be willing to give up possession of the property comprised in the tenancy". By mistake, the solicitor had wrongly deleted the words "(not)". The notice read as if the tenant were willing to give up possession. When the solicitor realised his mistake, he served a second notice, within the relevant two months, indicating this time that the tenant was unwilling to give up possession.

The court held that the tenant always intended to oppose the landlord's notice and to claim a new tenancy under the Landlord & Tenant Act 1954. There had simply been a mistake by the solicitor. Accordingly, there was no reason why a second notice should not be served within the two-month period. There would then be two notices and the court would have to decide in its discretion whether or not it would allow the tenant to resile from his first notice. Presumably, matters such as whether or not the landlord had acted in reliance on the first notice, for instance by agreeing a new lease to a third party, would be a relevant consideration for the court.

Comment: the Landlord & Tenant Act 1954 does not refer to the court having any relevant discretion. It simply requires a notice to be given, indicating whether or not the tenant will be willing to give up possession. There is no provision for the service of second notices nor is there a provision to enable a tenant to withdraw a notice once served. In this case, there was no ambiguity about the first notice. Its meaning was clear – the tenant was willing to relinquish possession – and the court should have held the tenant bound by it. Should this appear harsh, then the tenant would have a good claim against his solicitor. Accordingly, there was no reason for the court to have interpreted the legislation as conferring on it an invented discretion. All the court has done is to create uncertainty where uncertainty did not exist before.