Landlords serving Case B notices to quit in respect of agricultural tenancies following the grant of planning permission over part often overlook an important point of law.
The rule at common law is that a notice to quit must relate to all of the demised premises, not part only. If the freehold reversion is severed, the tenant holds the holding under one tenancy, not two. He has a different landlord in respect of each part.
So, under common law, the landlord of each part cannot serve notice to quit on that part unless he is rescued by one of three things. Firstly, a provision in the tenancy (a part resumption clause), secondly, section 31 of the Agricultural Holdings Act 1986 (relevant to marginal areas of land which has infrequent application) or, thirdly, section 140 of the Law of Property Act 1925 (the “LPA 1925”).
Section 140 of the LPA 1925 allows a landlord to serve a notice to quit over the whole of his severed part of the reversion. However, the severance must be genuine. In Persey v. Bawsley 1984, it was found that de facto control of the severed part must pass on transfer of the land. In other words, the transferee must not act as agent for the transferor.
Whether or not a severance is genuine will depend on the facts. A strategy should be prepared before any steps are taken to perform the well-known manoeuvre of splitting the reversion before serving a Case B notice to quit. A seemingly ‘engineered’ transfer will be sniffed out by a judge or arbitrator.
For more information please contact George Fellowes.