4 Sub-tenants
4.41 If the landlord terminates the tenancy of a mesne tenant by notice to quit, then upon its taking effect any sub-tenancy carved out of it will terminate automatically by operation of law.92 The 1995 Act gives the sub-tenant no protection as against the landlord, and the sub-tenancy will automatically determine on expiry of the landlords notice to quit.
The sub-tenant also enjoys no protection under the Agricultural Holdings Act 1986, although the legal position is somewhat more straightforward under the 1995 Act.93 If the landlord gives notice to quit at the invitation, and with the agreement of, the tenant, this will also terminate any sub-tenant carved out of the tenancy. After some uncertainty, it is now clear that this will be the case even if landlord and mesne tenant are acting in collusion, with the object of destroying a lawfully granted sub-tenancy.94 These issues are considered more fully below in relation to agricultural holdings, where the application of the common law principles is rendered more complex by the protective provisions of the 1986 Act.4.42 If the mesne tenant himself gives notice to quit to his sub-tenant, the length of notice required will depend upon the nature of the sub-tenancy. If the sub-tenancy is itself an annual periodic tenancy, then the restrictions in section 6 will apply: the notice must be in writing and of at least 12 months duration taking effect at the end of a period of tenancy. If it is for shorter periods, one period’s notice will suffice. The position where the mesne tenant gives an upwards notice to quit to his landlord was clarified in Pennell v Payne.95 The court of appeal reinforced the traditional view, and there held that if the tenant serves notice to quit on his landlord, then any sub-tenancy falls with the tenancy. The landlord cannot be forced into a direct relationship with an undesirable sub-tenant against his will. It had previously been thought that, by analogy with the rule obtaining where the tenant surrenders his intermediate interest,96 the mesne tenant could not by his own voluntary act destroy a subtenancy he himself has granted.97 The court in Pennell v Payne rejected this interpretation. It also follows that if the tenant exercises a break clause in the tenancy so as to terminate the lease before its expiry, any sub-tenancy granted out of it will also determine. The sub-tenant will have no claim, in either case, for continued possession based on his former interest as sub-tenant: but he might have a contractual claim for damages against the former tenant under the implied covenants for title.98