Barrett v Morgan [2000]

A tenant’s co-operation and consent to being served a notice to quit does not constitute surrender, because the landlord does not require the tenant’s consent in order to terminate the tenancy.

The owner of agricultural land granted a tenancy to two individuals (his sons), who then themselves granted a sub-tenancy to a farmer who farmed the land. The owners and the head-tenants wanted to obtain vacant possession of the land so that they would be able to sell it with vacant possession, so agreed that the owners would serve a notice to quit on the head-tenants. The head-tenants agreed not to serve any counter-notice relying on the relevant provisions of the Agricultural Holdings Act 1986.
The purpose of this agreement was to enable the owners to obtain possession against the sub-tenant farmer, as it was believed that when the notice to quit the head-tenancy expired, both the head tenancy and the sub-tenancy would come to an end.

Although this scheme was effected by the owners serving a notice to quit on the head-tenants, it originated from the two head-tenants. The head-tenants were unable to obtain vacant possession against the sub-tenant by serving on him notice to quit, because the sub-tenant would have been able to rely on the protection given by the 1986 Act. The head-tenants believed that they could not gain possession even by serving a notice to quit themselves, because case law at that time meant that a tenant could no impair or destroy the interest that he had granted to a sub-tenant just by putting an end to his own tenancy. They therefore concluded that the solution was for the tenancy to be ended by the owners.
At first instance the High Court judge held that this, what he called, ‘collusive agreement’ between the owners and the head-tenants could not destroy the sub-tenancy. The Court of Appeal dismissed the head-tenants’ appeal, but granted leave for an appeal to the House of Lords.

HELD: The House of Lords held that the previous decisions meant that neither the owners nor the head-tenants could do together what either could do separately. It was said that the serving on the head-tenant of a pre-arranged notice to quit was not a surrender, and therefore did not determine the sub-tenancy. 
Although the head tenants were willing to have their tenancy brought to an end by a notice to quit, there was no surrender on their part because their consent was not needed in order for the owners to do this. The owners would have been entitled to have ended the head tenancy even without the head tenants’ consent, so the head tenants’ co-operation could not be seen to constitute a surrender.
The appeal was allowed.

Citation: Barrett v Morgan [2000] UKHL 1 (or [2000] 2 AC 264; [2000] 1 All ER 481 or [2000] 2 WLR 285)