VALIDATION OF WAR-TIME LEASES BILL. [H.L.] (Hansard, 11 July 1944)

§ THE LORD CHANCELLOR
My Lords, I beg to move the Second 817 Reading of this Bill, and I wish to say a few words on the subject. It is undoubted law that an agreement to let premises for an uncertain period like "the duration of the war" does not constitute a valid lease. The reason is that at the date when a lease takes effect the date of its termination must be known, or at any rate capable of ascertainment. That is plainly not so when an agreement is made to let a house or other premises for a period such as "the duration of the war." A considerable number of agreements of this sort his been entered into, however, and, as your Lordships will readily understand, the question is what is to be lone, in view of the fact that it is now publicly known, by the decision of the Court of Appeal, that these leases are void and do not satisfy the conditions of a good lease.
This Bill is intended to deal with that subject, and it does so by three provisions, which perhaps I may be allowed briefly to mention. First of all, in Clause 1 it provides that where there is an agree rent which purports to create a tenancy for "the duration of the war" or the like, it is to take effect as an agreement for a tenancy for ten years, subject to the right, exercisable by either party, to determine the tenancy by notice if the war ends before the expiration of the ten years The notice will be a notice of at least a month. That is the first essential provision of the Bill—to take these agreements, which at present are unenforceable, the leases being void, and turn them into good leases for ten years, subject to the right to terminate them if the war ends before that time. Sometimes these leases are expressed as being for "the period of hostilities," "the period of military operations," and so on. Various phrases are used, and in a subsequent clause of the Bill these different phrases are dealt with. Your Lordships will see that if that is going to be done it is necessary to decide in the case of tenancy agreement s what is the meaning of "the war" or "hostilities," or whatever the phrase may be. There may be cases where it is quite plain that what is meant is the war with Germany; but unless there is something to indicate to the contrary, I think we must regard "the war" as meaning the whole war, and we should be wrong not to regard the 818 war with Japan as being part of it. There may be other cases where the language used makes clear what is meant, but in Clause 2 it is provided that this phrase "the war," or "hostilities," or "the emergency," may be either war with all the States with whom His Majesty is at war or war with a particular State, and each agreement is to be construed as best it may, having regard to its terms in order to decide which it means, but with the provision that if there is nothing in the agreement to show one way or the other it must be treated as an agreement for the whole war.
There is one other essential provision. It is not easy to decide either legally or, it may be, in practice, the moment at which the war ends. Wars have a way of hanging on, and the date on which the war ends in the view of an international lawyer—the date when there is actual peace—is not the same as the end of hostilities. On the whole, people who make bargains such as leases for the period of the war possibly have not in mind the actual moment, which may be long hence, when complete peace is reestablished; they were much more likely to be thinking of circumstances in which their house was liable to be bombed, or they may be people who have retired to the country or who have been called up and who therefore cannot live in their own house. We therefore provide in Clause 2 (2) of the Bill that His Majesty may, by Order in Council, declare what date is to be treated for the purpose of any tenancy agreement as the elate of the end of the war, or the end of hostilities, according to whether the German war or the whole war is meant. I apprehend that this Order in Council fixing a certain date is likely to do so without too long a delay. To give people who have not a valid lease a lease which is good for ten years, subject to notice, is to do something for them, and I do not think that we ought to extend the period under this arrangement beyond what is reasonable. That is the object of Clause 2 (2). As to when the Order in Council will be made, it might be made when hostilities were manifestly dying down and the enemy was obviously on his last legs, but even so there would have to be a month's notice before it would be possible for the lease to be determined.
Those are the principal provisions of the Bill. They occupy rather more paper 819 than one would wish, but the matter is both complicated and troublesome. In point of fact I had a Committee appointed which was presided over by a High Court Judge very well qualified to consider these matters, and who had the help of two or three others. They went into the matter with the greatest care and I feel confident that this Bill as drawn will be found to cover the ground. I shall be very disappointed if it does not. There is provision for its application to Scotland—which will save us another Bill—though not quite in the same terms. In Scotland the period of notice is to be not a month but forty days, which I gather is the more usual period in Scotland. Those are the terms of the Bill, and I move that it be read a second time.

§ VISCOUNT MAUGHAM
My Lords, I should like to say a word with regard to this Bill, but not in any sense in a hostile spirit I must admit that I have not had time to study the Bill with the care which I should like to devote to it, having regard to my attempt to understand the Education Bill. There is only one point which has occurred to me which the able people who have assisted the noble and learned Viscount on the Woolsack in regard to this Bill may have forgotten, or of which they may not have thought. The point occurred to me because I have been a farmer, and I doubt whether the High Court Judge and the others who assisted him have had that experience. This Bill, as I understand it, will have this result, that if its provisions relate to a farm either party may terminate the tenancy by one month's notice in writing given after the end of the war. That may mean that the tenancy will not expire on a quarter day, and I know enough to know—and many of your Lordships who have been obliged to leave your homes know even better—that you make the most absolute hash of an agricultural tenancy if you are able to give notice which would make it expire not on one of the usual quarter days but on some totally different date. In some parts of the country the results would be terrible if the tenancy expired at any date except the September quarter-day, which would be the dale found in the original lease.
820 I am not going to express any opinion other than that on this matter. All I urge is that the noble and learned Viscount should put the matter before people who are accustomed to deal with agricultural tenancies and see whether an additional clause is not needed to deal with that particular difficulty. I need not enlarge on the agricultural difficulty which would arise if you suddenly had a notice which determined your tenancy, we will say, on January 10. You may have sowings and reapings and all sorts of things coming into play in such a case and it is desirable that that matter should be considered.

§ THE LORD CHANCELLOR
My Lords, I will take the advice of my noble and learned friend and I will certainly look into it again with those who assisted me. Without in the least giving a final opinion, I think it may turn out that the difficulty is overcome by the proviso (b) in Clause 1 (1). If in the first instance a letting has been for the period of the war and is an agricultural letting, it is hardly to be supposed that the agreement itself will not contain provisions that the premises are to be surrendered at the suitable time. Looking at it agriculturally, the persons concerned were making a bargain and the farmer who took the farm was taking an agricultural holding for the duration of the war, but of course he would not be so foolish as to overlook the difficulty that the noble and learned Viscount referred to. If he did not, he still gets under proviso (b) the advantage which, I agree, he ought to get. If the agreement provides for the termination of the tenancy by notice at the end of the war, that provision should not be subject to the provision in the Bill of a month's notice. So, if you examine this lease of a farm and find that it provides that the farm should be given up, let us say, at quarter day or perhaps on a particular quarter day after the end of the war, that provision is not altered at all. The one month is limited to cases where there is no set provision. But, of course, we will look into it again.

§ LORD ROCHE
My Lords, I hope the Lord Chancellor will do a similar favour in regard to another point which arises. These agricultural agreements are more common than one might suppose, for this reason, that the agricultural executive committee when they have to deal with 821 an inefficient farmer are very fond of putting a farm into the hands of an efficient farmer. My impression is that it is for the period of the war and afterwards. That point is not dealt with by this Bill, but it probably should be, because for the purposes of this Bill I am not sure whether you should not have a provision for leases for the period of the war or for a term dependent on the period of the war. I have only just seen the Bill and I am not very certain about it, but I rather think that we need a provision other than that in proviso (a) to meet the point of the termination of a lease at some customary period. I should be glad if these points could be carefully looked into.

§ THE LORD CHANCELLOR
They shall be.