LC-2023-000815 - [2025] EWCA Civ 971

Fecha: 25-Jul-2025

The invalidating features argument

34.

The owner relies on [93] of Baroness Hale’s speech where she said this:

So we have now reached a position which is curiouser and curiouser. There is a rule against uncertainty which applies both to single terms of uncertain duration and to periodic tenancies with a curb on the power of either party to serve a notice to quit unless and until uncertain events occur.

35.

The owner spells out of this passage an all-encompassing rule that there are two, and only two, invalidating features of an uncertain term: (i) a single term of uncertain duration as in Lace v. Chantler where the term was for the duration of the war, and (ii) a fetter of uncertain duration on either parties’ right to serve notice (for example the road widening condition in Prudential). So, the owner argued, since the term of 10 years was not of uncertain duration here, and since there was no fetter of uncertain duration on either parties’ right to serve a notice in this case, the tenancy is valid.

36.

In my judgment, the owner has put the cart before the horse. The first question to ask is as to the proper interpretation of the contract that the parties agreed. Until that is decided, one cannot tell whether the requirement for a term certain is satisfied.

37.

Here, as appears from the next section of this judgment, there was an uncertain term because it could not be said with certainty at the start of the term of 10 years when it might end. It could end on any day chosen by one of the parties on or after 11 March 1997. It was not saved by the exception for periodic tenancies terminable by notice at the end of a repeating period, because the agreement did not create a renewable periodic tenancy at all.

38.

Accordingly, in my judgment, nothing that Baroness Hale said at [93] or elsewhere creates the rule contended for, or saves the validity of the Agreement.