4 Unqualified notice to quit: counter notice
7.15 Where the landlord serves an unqualified notice to quit, s 26(1) provides that the tenant can, not later than one month from the giving of the notice to quit, serve on the landlord a written counter-notice requiring that section to apply to it.
In this event the notice to quit cannot have effect unless the landlord applies for, and obtains, tribunal consent to its operation. The notice to quit can be given in the alternative, ie pursuant to one of the cases in Sch 3 or (if that fails) as a general notice to quit subject to s 26. To be valid, however, it must be clear on the face of the notice that it is given under both provisions, or two notices must be given.59 If the tenant challenges the notice by arbitration (eg if Case D or E is relied on), but is unsuccessful, and the notice is one to which s 26(1) applies in the alternative, then the time limit for serving a counter notice is extended to one month from the termination of the arbitration.60 For the purpose of calculating the one-month time limit for service of counter notice, the ‘corresponding date’ rule is applied.61 The period for service of counter notice is inflexible; there is no provision for extension, whatever the merits.7.16 If a counter notice is validly served, the landlord must apply to the first tier tribunal within two months of its receipt (in Wales to the agricultural land tribunal, within one month of its receipt), for consent to the operation of the notice to quit.62 The tribunal can only grant consent on the limited grounds set out in s 27(3) (see below).
7.17 The 1986 Act does not expressly prevent the parties from contracting out of the protection of s 26. In Johnson v Moreton63 it was held, nevertheless, that the provision is mandatory (‘the notice to quit shall not have effect’), and that on grounds of public policy contracting out should not be permitted.
It was here held that a clause in the contract of tenancy by which the tenant covenanted not to serve a counter notice claiming security was void, and that its breach could not ground possession proceedings under Case E. Similarly, in Featherstone v Staples64 a clause contained in a partnership deed, and limiting the right to serve counter notice without the consent of the landlord’s nominee, was held to be void. Where the tenancy is held by joint tenants, all must otherwise concur in the giving of a counter notice if it is to be effective.65 If the lease is jointly held subject to an implied trust of land, however, a tenant refusing to join in serving counter notice will be putting the trust assets at risk, and can in some circumstances be compelled in equity to join in its service.66 He can also be compelled to concur in service if his co-tenant has elected to purchase his share of the partnership assets, thus removing him from the legal title.67 Note, finally, that a sub-tenant’s right to serve counter notice is expressly excluded if he has received notice to quit from the tenant, and the notice to quit states that the latter has received notice to quit from the landlord.68