Never has there been so much commotion over the word “or”…16th August 2017
The Court of Appeal in Grimes v The Trustees of the Essex Farmers & Union Hunt ( EWCH Civ361) has ruled that notice provisions in a tenancy agreement should be considered in the context of the contract as a whole, and not as a separate clause within the agreement. This case concerned whether the word “or” should be interpreted on its literal meaning or as a substitute in relation to an address for service.
The facts in Grimes v The Trustees of the Essex Farmers & Union Hunt
Mr Grimes (“the Appellant”) was the tenant in this case and entered into two tenancy agreements with Essex Farmers & Union Hunt (“the Respondent”). Both tenancy agreements were for a term of three years from 1 October 2006 to 29 September 2009 and 30 September 2009 to 30 September 2012 (“the Tenancy Agreement”). The tenancy agreements were both entered into on 16 November 2006, although the second agreement was expressed to be made on 16 November. No point was made by either side as to the validity of the tenancy agreements and the court proceedings continued on this basis.
The Appellant lived at 24 Glebe Way and in October 2005 he moved to 44 Maple Way. The Tenancy Agreement was prefaced by a page of Particulars and the tenant was expressed to be “T Grimes Esq. of 24 Glebe Way…” This address was used for the Appellant despite the fact he had moved to 44 Maple Way before the Tenancy Agreement was signed.
The first rental payment under the Tenancy Agreement was due on 29 December 2006 and the Appellant paid this by a cheque sent under cover of a letter, within which he claimed stated “as mentioned on the phone, new address and telephone numbers are: 44 Maple Way…” Mr Clarke, a former joint master of the Respondent said that he had no recollection of receiving this note and claimed that he was never informed of the new address for the Appellant. The cheque was, however, received and cashed. The Court was therefore of the view that the notice was received and the Respondent should have updated their records accordingly.
The Tenancy Agreement provided for notice under clause 14.2, which stated that “either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars or such other address as has previously been notified in writing”.
On 1 July 2011 the Respondent served a notice to quit on the Appellant. This was delivered by hand by Mr Clarke to 24 Glebe Way. The decision of the County Court was that because 24 Glebe Way was the address for the Appellant in the tenancy Particulars, it remained a good address for service even after receipt by Mr Clarke of the notice of change of address.
Mr Grimes appealed to the Court of Appeal.
The Court of Appeal decision
The Respondent claimed that the notice was validly served under the Tenancy Agreement as the word “or” in the agreement created an additional service option, rather than substituting the original address for a new one.
The Court of Appeal disagreed with this argument and questioned what the point would be of enabling the tenant to notify the landlord of his new address, if the landlord then remained free to serve notices on the tenant at a previous address. The Court held that it was a matter of commercial common sense that to be valid any notice should be served at a party’s current address. “Or” should be interpreted as substitutive in effect and not given its literal meaning.
In determining the correct interpretation of clause 14.2, the Court confirmed that there “can be no doubt” that a notice could have been validly served on the Appellant at 24 Glebe Way prior to any notification of address change. Any notice served before this date would have been valid even though the Appellant did not live at that address.
This is a warning when serving notices for both landlords and tenants to ensure that the notice is addressed and served at the recipient’s current address.
For further information, please contact the Real Estate Disputes Team at Hamlins.