5 Retirement notice and notices to quit
8.87 Where the landlord has served a notice to quit, the tenant may seek to evade his liabilities by serving a retirement notice and setting the retirement procedure in motion. To avoid this possibility, ss 51 and 52 set out complex procedural rules providing for the suspension of the operation of retirement notices in some circumstances where a notice to quit has been served.
The rules depend on the point in time at which the notice to quit was served, and the ground on which it was based.8.88 Where a retirement notice is served after the service of a valid notice to quit the holding the following rules are applied by s 51:
(a)If the tenancy is subject to a valid notice to quit served under s 26 of the 1986 Act, and either the month allowed to the tenant to serve a counter notice has expired, or the Tribunal has consented to the operation of the notice to quit, then the Tribunal has no jurisdiction to entertain an application for succession pursuant to the retirement notice.153
(b)The Tribunal has no jurisdiction to hear an application for succession if, at the date of service of the retirement notice, the tenancy was already subject to a notice to quit given before that date under Case C (certificate of bad husbandry) or Case F (insolvency of tenant) in Sch 3 to the 1986 Act.154 Such notices cannot be challenged by arbitration or the tribunal consent procedure.
(c)The Tribunal has no jurisdiction if, at the date of the retirement notice, the tenancy was subject to a notice to quit falling under Case B (land required for non-agricultural use), Case D (failure to pay rent or to remedy breach of tenancy) or Case E (irremediable breach of tenancy by tenant) and either:
(i)The month allowed for reference to arbitration of the facts alleged in the notice to quit has elapsed; or
(ii)The facts alleged in the notice to quit were referred to arbitration, and were upheld; or
(iii)The Agricultural Land Tribunal consented to the operation of the notice to quit (where applicable).155
The notice to quit, in all these cases, will have become final before the retirement notice was given.
(d)Contrast the position where, at the date of service of the retirement notice, the tenancy is subject to a valid notice to quit given under Cases B, D or E (as above), but the period during which a reference to arbitration can be made has not elapsed, viz the notice to quit has not yet become final (cf (c) above). In this instance the operation of the retirement notice is suspended until either:
(i)It is determined by arbitration that the notice to quit is invalid because the facts alleged in it are unsubstantiated; or
(ii)Where the notice to quit was given on grounds of the tenant’s failure to comply with a notice to do work, the Agricultural Land Tribunal has either withheld consent to the operation of the notice, or the period for application for consent has expired.156
Where either (i) or (ii) occurs, so as to ‘revive’ the retirement notice, the nominated successor has one month beginning with the date on which the arbitrator’s award is served on him, or with the date of the Tribunal’s decision to withhold consent or with the expiry of the period for making an application for consent (whichever applies), in which to make his application to the Tribunal for succession to the tenancy pursuant to the retirement notice.157
(e)One further point merits attention. It would appear from s 52(1)(a) and s 52(2)(b) that a notice to quit served by the landlord on or after the date of the retirement notice under Case C or D will only be effective if the certificate of bad husbandry was applied for, or the notice to pay rent or to remedy was given, before the retirement notice.
8.89 Where the tenancy becomes subject to a valid notice to quit given on or after the date of the retirement notice, but before the Tribunal have begun to hear an application by the nominated successor for the grant of a tenancy, different rules apply. If the notice to quit is given pursuant to Case B (land required for non agricultural use) or Case D (failure to pay rent or do work) then the retirement notice is suspended until either:
(a)It is determined by arbitration that the notice to quit is ineffective because of the invalidity of the reasons on which it is based; or
(b)In the case of alleged non-compliance with a notice to do work under Case D, where a counter notice has been served and the Tribunal subsequently withhold consent, or the time limit for the landlord to apply for consent expires.158
8.90 Where the retirement notice is ‘revived’ by the occurrence of either of these events the tenant has one month from the date of delivery of the arbitrator’s award, the date of the Tribunal’s refusal of consent or the expiry of the period to apply for consent (whichever applies), in which to apply for a direction entitling him to the grant of a tenancy.159
8.91 If the tenancy becomes subject to a notice to quit given (similarly) on or after the date of the giving of the retirement notice, but before the nominated successor has applied for a direction entitling him to a tenancy, then if the notice to quit is based on Case C (Certificate of Bad Husbandry) or Case F (insolvency of tenant) the retirement notice is of no effect and no proceedings can be taken upon it.160 In these cases the notice to quit is final, unless challenged at common law, as the arbitration and tribunal consent requirements do not apply.
8.92 If an application by the nominated successor is invalidated by the operation of the above rules, it is treated as if it had never been made, with the result that if for any reason the tenant retains the tenancy (despite the notice to quit) he will be able to serve a fresh retirement notice at a future date.161