Landlord and tenant: Validity of notice

Landlord and tenant - business lease - landlord serving notice of termination of tenancy - tenant's solicitor erroneously serving counternotice indicating willingness to vacate premises - tenant's solicitor serving further counternotice stating tenant did not wish to vacate - validity of notices - whether tenant entitled to revoke first counternotice - claim allowed

Pennycook v Shaws (EAL) Ltd: Chancery Division (Mr Justice Pumfrey): 28 November 2002

A business tenant consulted a solicitor after being served with a landlord's notice to terminate his tenancy.

The notice indicated the landlord's opposition to the grant of a new tenancy.

The tenant's solicitor erroneously completed a notice informing the landlord that the tenant would be willing to give up possession.

Upon realising the mistake a month later, the solicitor served a fresh notice, notifying the landlord that the tenant would not be willing to give up possession.

The tenant applied to the court for a new tenancy and the landlord applied to have the case struck out.

The county court judge ruled that he was bound by the decision of Re 14 Grafton Street, London W1 [1971] 1 Ch 935 to hold that a positive counternotice, once served, is irrevocable.

He struck out the claim but granted permission to appeal on the question of whether Re 14 Grafton Street ought to be revisited in the light of the Human Rights Act 1998.

The tenant challenged that decision.

William Geldart (instructed by Hallmark Atkinson Wynter) for the claimant; Neil Vickery (instructed by Belmont Hansford) for the defendant.

Held, the claim was allowed.

The tenant had complied with the requirements of part II of the Landlord and Tenant Act 1954.

He had served a negative counternotice and had applied to the court for a new tenancy in time - Re 14 Grafton Street not followed.

It was not necessary to decide the human rights issue.

If the landlord could show that he had changed his position after receiving the positive counternotice, that was a matter that could be litigated.

The case was remitted to the county court.