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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bass Holdings Ltd v Lewis [1986] EWCA Civ 2 (29 July 1986) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1986/2.html Cite as: [1986] EWCA Civ 2, (1986) 280 EG 771, [1986] 2 EGLR 40

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Court of Appeal

		29 July 1986

1. Giving the first judgment at the invitation of the Master of the Rolls, NOURSE LJ said: This is an appeal from a decision of Hoffmann J given on February 17 1986 in a landlord and tenant case. It raises what the same learned judge once described as a short but easy point.
2. The material facts, which I can take from the judgment of the judge, are these. The respondent to the appeal, Bass Holdings Ltd, is the leasehold owner of a public house in Deptford called the Railway Tavern. On October 30 1974 the respondent entered into a tenancy agreement in its standard form with the appellant, Mr Charles Ronald Lewis, by which it underlet the Railway Tavern to him for a term of three years from Michaelmas 1974 at a rent of £ 1,248 a year. After the expiry of the original term the appellant held over as a tenant from year to year, and there were agreements increasing the rent as from Michaelmas 1977 and again from Michaelmas 1980. The current rent is £ 2,860 a year.
3. The fourth schedule to the tenancy agreement contains provisions for its termination. Para 1 provides that the respondent

may terminate this agreement by six months' notice in writing to expire either at the end of this agreement or any time thereafter and immediately upon the expiry of such notice this agreement shall end but without prejudice to the remedies of either party in respect of any antecedent claim or breach.

4. Para 4 provides that if the tenant dies during the term of the agreement the landlord may

at any time terminate this agreement by giving notice in writing thereof to the tenant's personal representatives or the Probate Judge provided that no such notice shall be for less than fourteen days or if the tenant leaves a widow shall expire earlier than three months after the date of the tenant's death.

5. By a written notice dated November 13 1984 the respondent gave notice under para 1 of the fourth schedule to terminate the agreement on May 14 1985.
6. The appellant denies the respondent's right to possession, claiming that under the provisions of section 149(6) of the Law of Property Act 1925 the term granted to him by the tenancy agreement has been converted into one for 90 years, determinable by notice after his death. That claim was rejected by the learned judge, and the appellant now appeals to this court.
7. Section 149(6), so far as material for present purposes, is in the following terms:

Any lease or underlease, at a rent, or in consideration of a fine, for life or lives or for any term of years determinable with life or lives, or on the marriage of the lessee, or any contract therefor, . . . shall take effect as a lease, underlease or contract therefor, for a term of ninety years determinable after the death or marriage (as the case may be) of the original lessee, or of the survivor of the original lessees, by at least one month's notice in writing given to determine the same . . .

I need not read the rest of the substantive part of the subsection. There are then a series of provisos of which (c) may be of some materiality. It is in these terms:

if the lease, underlease, or contract therefor is made determinable on the dropping of the lives of persons other than or besides the lessees, then the notice shall be capable of being served after the death of any person or of the survivor of any persons (whether or not including the lessees) on the cesser of whose life or lives the lease, underlease, or contract is made determinable, instead of after the death of the original lessee or of the survivor of the original lessees . . .

8. The essence of Hoffmann J's decision is to be found at p 3 B - C of the transcript where, having described the appellant's claim and its consequences in tones of some irony, he said this:

In my judgment the short answer to this remarkable claim is that Mr Lewis's tenancy was not granted for life or lives or any term of years determinable with life or lives within the meaning of section 149(6) of the Law of Property Act 1925. The statute is dealing with leases which are granted either for a term limited by reference to a life or lives, or for a term of years limited conditionally upon the survival of a life or lives.

I entirely agree. I add by way of illustration that the simplest example of a term of years limited conditionally upon the survival of a life or lives is a lease 'to A for a term of 20 years if he shall so long live.'

9. The learned judge then went on to consider the aim of the 1925 property legislation, implemented in part by section 149(6), to reduce the legal estates which are capable of existing in land to estates in fee simple absolute in possession and to terms of years absolute. He pointed out, correctly, that a lease for a fixed period with a proviso which allows for its determination by notice, even if the dropping of a life is a condition precedent to the service of a valid notice, is none the less a term of years absolute.
10. The appellant's construction of section 149(6) as advanced by Mr Wood on his behalf, necessitates reading the words 'for any term of years determinable with life or lives' as including a term of years determinable by notice after the dropping of a life or lives. It seems to me that there are a number of conclusive objections to that construction.
11. First, the word 'determinable' is capable of meaning 'liable to determine' and no more. It does not necessarily also mean 'determinable by notice' or by some other positive act.
12. Second, it seems to me to be very important to pay attention to the prepositions which are used in the two parts of the subsection. In describing the leases to which it is to apply, the subsection refers to leases determinable with life or lives, or on the marriage of the lessee. That suggests that it is referring to leases which will determine automatically, in the one case on death and in the other on marriage. By contrast, when you get to the provision dealing with the new lease, you find that it is to be determinable by notice after the death or marriage as the case may be of the lessee. That is a distinction which I do not think can be ignored and it is further emphasised by the terms of proviso (c).
13. Third, the contrast between the use of the word 'determinable' simpliciter in the first part of the subsection and the reference to determinability after the death or marriage by notice in the second conclusively confirms that in the first part 'determinable' does not mean determinable by notice.

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14. For these reasons, as well as for those given by the learned judge, it seems to me that this is a very clear case. In my view the learned judge arrived at an entirely correct decision. I would therefore dismiss this appeal.
15. GLIDEWELL LJ agreed and did not add anything.
16. Also agreeing, SIR JOHN DONALDSON MR said: If 'determinable with life or lives', which is the crucial phrase occurring in section 149(6) of the Law of Property Act 1925, includes a determination by notice, following the dropping of a life, then the statutory term of 90 years determinable by notice, which is substituted under the subsection, would also be a lease determinable with life or lives. This I find surprising, but when I am referred, as we were, to section 1 of the Act, which provides among the general principles that 'the only estates on land which are capable of subsisting or of being conveyed or created at law are - (a) An estate in fee simple absolute in possession; (b) A term of years absolute . . .', the construction contended for by Mr Wood in my judgment becomes wholly unarguable. I say that because the phrase 'term of years absolute' is defined in section 205(xxvii) as meaning a term of years, '. . . but does not include any term of years determinable with life or lives . . .'. So Parliament, on the construction put forward by the appellant, would have been substituting a new term which was itself expressly excluded from the definition of a term of years absolute, notwithstanding that it had declared in the clearest possible terms that, apart from a fee simple absolute in possession, a term of years absolute was the only estate which could be created. For those reasons, in addition to the reasons given by the learned judge, I would also dismiss the appeal.

The appeal was dismissed. No order for costs was made against appellant, but directions were given on the question of payment of costs out of legal aid fund. The appellant was allowed to stay in the premises for 28 days from date of judgment.

The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.