certainty of term rule

s205(1)(xxvii) lpa 1925

term must be certain or liable to determination (creates contrast to fee simple which is potentially perpetual)

s149(6) lpa 1925

‘any lease… for life or lives or for any terms of years determinable with life or lives… shall take effect as a lease… for a term of 90 years determinable after the death (of the lessee)… by at least one month’s notice in writing’

s145 sch15 lpa 1922

no perpetual leases (although they may be very long) and perpetually renewable leases converted into 2000-year terms

common law certainty of term

start of a lease must be at a certain, defined, time and also, at the commencement of the lease, the end date of the lease must be certain

certainty of commencement

lease must specify that it starts on a particular date (otherwise invalid), HOWEVER, lease commencing on the occurrence of an event, and the event occurs, still valid

say v smith

16th century authority - ‘every contract sufficient to make a lease for years ought to have certainty in three limitations - in the commencement of the term, in the continuance of it and in the end of it: so that all ought to be known at the commencement of the lease’

lace v chantler

modern authority on duration of lease dependent on certain event - lease ‘until the end of the war’ was void. not certain enough.

prudential assurance v london residuary body

a lease ‘to continue until the land was required by the council for purposes of widening the road’ is void for uncertainty of term

HOWEVER, periodic tenancy can be implied from tenant’s continued possession and payment of annual rent, and the landlord able to terminate the tenancy by giving 6 months notice.

start to observe the shift in attitude and attempt to save leases through implying periodic tenancies, rather than making them void due to uncertainty

exceptions to certainty of term rule

periodic tenancies

implied periodic tenancies

periodic tenancy

duration is extended each time there is a renewal - term certain unless there is a renewal, could last indefinitely

implied periodic tenancy

a lease for an uncertain term is invalid but courts can imply a period tenancy if there is periodic payment of rent and exclusive possession

determinable long leases

conveyancing mechanism

a lease for the duration of the war or until the road is needed = void

a lease for 100 years, determinable at the end of war or when land is needed = valid

potential issue that it may go against parties wishes - they may not want the lease to be as long lasting

mexfield housing co-operative v berrisford

issue whether occupancy agreement preventing claimant from serving notice unless/until an uncertain event occurred could constitute valid tenancy or would be void for uncertainty of term (all the instances where m could terminate lease were based on uncertain events, unlike b)

here, was perpeutal lease void on basis that termination could only occur in cases of specific uncertain events

however, created a life tenancy instead (amounted to 90 year lease), where it can be terminated by b serving notice or m serving notice when specified event occurs

issues from mexfield reasoning

• potential issue if tenant is a company/corporation - companies have no ‘life’, so life lease cannot be applied

• not applicable if lease is at premium/no rent - mexfield idea only applies where lease fails on uncertainty

• unclear role of parties intentions - may go against what parties wanted

southward housing co-operative ltd v walker

agreement of uncertain term not converted to life tenancy if terms of agreement/circumstances show contrary intention. instead in this case held that agreement was a contractual licence

issue with formalities

no formalities needed for monthly periodic tenancy - legal lease

deed and registration for 90 year lease - at best, an equitable lease

arguments against keeping mexfield rule

• rule artificial in relation to periodic tenancies (which seems like the more natural choice), as no party seemed to intend tenancy for life

• undermines freedom of contract

arguments in favour of keeping mexfield rule

• open ended and uncertain burdens on freehold reduce economic value, therefore rule aligns with numerus clausus

• common law general dislike for uncertainty

• consistent with nemo dat principle (no one can give what they don’t have)

bruton v london & quadrant housing trust

d granted lease to c, when they didn’t have the power to do so. attempted to only grant licence, but based on analysis of c’s use of land, decided to be a lease instead.

hol decided that a lease was created despite d’s lack of title.

creates a potential new type of lease which is not necessarily proprietary but reflects relationship between d and c - not concerned with whether agreement creates proprietary interest that binds 3rd parties

dixon, ‘the non-proprietary lease: the rise of the feudal phoenix’

if english law adheres to nemo dat principle, then housing trust (mere licensee) cannot confer property right on b, and therefore b tenancy is necessarily a personal right - the tenancy is indistinguishable from a contractual licence and should be labelled as such

pawlowski and brown, ‘bruton: new species of tenancy?’

‘the tenant still has exclusive possession but only as against the grantor and not the rest of the world. the tenancy is therefore personal as between the parties and creates no estate in land’

bright, ‘leases, exclusive possession and estates’

contradicts the nemo dat principle

contractual lease - unclear how it can be created and what are its third-party effects

relativity of title analysis

council being prohibited by statute from granting a lease to the housing trust would not prevent the housing trust from going into de facto possession of the flats, and therefore it would not prevent b from acquiring a relative proprietary title out of the fact og his own de facto possession

neuberger in mexfield (obiter) about bruton

‘the bruton case was about relativity of title which is the traditional bedrock of english land law’

mcfarlane and simpson, ‘tackling avoidance’

purposive statutory interpretation: hl asked whether a lease had been granted for the purposes of a particular statute, the landlord and tenant act

bruton will not contradict the usual test laid down in street v mountford

the word ‘lease’ when used in landlord and tenant act 1985 does not refer to the technical meaning of lease as a legal right to exclusive possession. this approach could help reduce the destabilising impact of the decision on the law of lease