Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

(2)between spouses at the time of proceedings for judicial separation or a declaration of nullity;

(3)following overseas divorces when the strongest connection is with this country; and

(4)between unmarried parents for the benefit of their minor children.95

Property adjustment most commonly follows a divorce.

3.Exercise of adjustment powers

[24.19] One spouse may be ordered to transfer the matrimonial home to the other,96 either by an outright transfer, or by transfer of an existing share, or the creation of a beneficial co-ownership by conferring a share on a non-owner. Transfer may require the consent of an existing lender97 or a landlord.98 Balancing payments are often ordered and may be charged on the house.99 Instead of an outright transfer, there is power to order the creation of a settlement or to vary a marriage settlement. The court often creates a co-ownership in a former matrimonial home but allows one party to occupy100 with the children of the marriage.

It is beyond the scope of this work to consider the form of the orders that should be made. 101 A vital factor is the welfare of the children. Where there are minor children, a declaration of beneficial co-ownership is likely to be coupled with an order deferring sale,102 but in other cases it may be feasible to achieve a clean break.103 The court has to balance the needs of family members against the resources available, bearing in mind the family setting and the contributions to the marriage, but largely ignoring conduct and pre-nuptial agreements.

Where it is feasible to rehouse both spouses, Wachtel v. Wachtel104 is authority for division into thirds, one for the husband, another for the wife, with the final third put towards maintenance of the children. A couple without children would share half and half.105 However, English law is still based on need rather than any automatic presumption of equal division. Recent “big money” cases have led to larger payments for wives and a closer approach to equality.106

95Children Act 1989 sch 1 para 1(2).

96MCA 1973 ss 21, 22A(2), as amended.

97Regan v. Regan [1977] 1 WLR 84.

98J v. J [1980] 1 All ER 156.

99This money charge requires protection; see below [28.12ff], [28.17ff].

100See above [19.53].

101MCA 1973 s 25, as amended in 1984 and 1996.

102See above [19.53].

103Piglowsa v. Piglowski [1999] 1 WLR 1360, HL.

104[1973] Fam 72, 94–95, Lord Denning MR; Potter v. Potter [1982] 1 WLR 1255; Bullock v. Bullock [1986] 1 FLR 372; Dew v. Dew [1986] 2 FLR 341; W v. W [1995] 2 FLR 259, Ewbank J.

105Page v. Page (1981) 2 FLR 198, 202D, Dunn LJ.

106White v. White [2001] 1 AC 596, HL; Cowan v. Cowan [2001] EWCA Civ 679, [2002] Fam 97; Lambert v. Lambert [2002] EWCA Civ 1685, [2003] 1 FLR 139.

4.Registering property adjustment applications

[24.20] A claim to property adjustment is registrable as a pending land action, though only after matrimonial proceedings have commenced.107 The application should to be targeted at specific property by registration, after which it binds any purchaser,108 though an unregistered claim still binds a purchaser with actual notice.109

5.Bankruptcy and ancillary relief

[24.21] There are a considerable number of cases about the conflict of priority that exists between the claims of a family to property adjustment and the claims of creditors channelled through a trustee in bankruptcy. A property transfer order creates an equitable interest in the home at the time it is made, in advance of the transfer.110 A bankruptcy one day later will not remove the right created by the property adjustment order.

If the sequence is reversed – so the spouse is bankrupted, or bankrupts himself, before the property adjustment orders are made, any order of the family court must be ratified by the bankruptcy court.111 A property adjustment order is a gift or partial gift which can be avoided under the rules discussed below112 if the spouse ordered to make the transfer becomes bankrupt within five years,113 though partial protection accrues for a spouse who provides value by giving up claims to maintenance.114

G. GIFTS TO AVOID CLAIMS

1.Gifts just before insolvency

[24.22] A debtor should not give away his assets so as to reduce what is left for his creditors, and nor should he sell them too cheaply.115 The time limit allowed for challenge of a gift or partial gift is five years,116 running backwards from the moment of presentation of a bankruptcy petition. During that five year period the title of the donee is provisional, and it becomes voidable on the donor’s bankruptcy.117

107Kemmis v. Kemmis [1988] 1 WLR 1307, CA; B v. B [1994] 2 FLR 739, Bracewell J; on appeal [1995]

1FLR 374, CA.

108Whittingham v. Whittingham [1979] Fam 9, CA; Perez-Adamson v. Perez Rivas [1987] Fam 89, CA.

109B v. B [1994] 2 FLR 739, Bracewell J; a point left open on appeal: B v. B (No 2) [1995] 1 FLR 374,

CA.

110Mountney v. Treharne [2002] EWCA Civ 1174, [2002] 3 WLR 1760.

111Re Flint [1993] Ch 319; Albert v. Albert [1997] 2 FLR 791, CA.

112See below [24.24].

113IA 1986 ss 339–340; MCA 1973 s 39.

114Re Abbot [1983] Ch 45; Harman v. Glencross [1986] Fam 81; Re Kumar [1993] 2 All ER 700, Ferris J.

115IA 1986 ss 238, 241, 339; this encompasses (1) a gift, (2) a transfer with no consideration or (3) a transfer for a marriage consideration; and (4) any imbalanced transaction – where the bankrupt received significantly less value than he provided; Re Densham [1975] 1 WLR 1519, Goff J (wife acquired larger share than she had paid for); Reid v. Ramlot [2002] EWHC 2416, [2002] Times November 15th; Philips v. Brewin Dolphin Bell Lawrie [2001] UKHL 2, [2001] 1 WLR 143.

116IA 1986 s 339.

117Actual avoidance may be many years later: Re Dent [1994] 2 FLR 540, Div Ct.

Other provisions invalidate a preference (which gives payment to one creditor rather than another)118 or an undervalued conveyance intended to defraud creditors.119

2.Protection of buyers from donees

[24.23] It will be too late to upset a gift after the land has passed to an honest purchaser. If title is registered, the only question is whether the register reveals the fact that the land was acquired under a potentially voidable gift, and otherwise the registration curtain protects the purchaser. The register no longer records that the document founding the registration was a gift, since title can be passed by the person recorded as proprietor.120

Special protection has been required for purchasers of unregistered land. A check of the title reveals the fact that the later sale is still within five years measured from the date of the gift. The buyer’s title was voidable because of the buyer’s knowledge of this “relevant circumstance”.121 Insurance against this risk was the only solution. The Insolvency (No 2) Act 1994 cures this problem for all transactions after mid-1994.122 Relevant circumstances are defined.123 The purchaser remains vulnerable only if: (1) the buyer is an associate of the giver or of the recipient; or (2) the buyer has knowledge of the bankruptcy or impending bankruptcy. The later buyer protects himself by a bankruptcy search against the original giver. Protection presumably accrues to later owners.

3.Gifts designed to avoid property adjustment

[24.24] The family court may invalidate a transaction which has already occurred124 in favour of a spouse claiming property adjustment or other financial relief on divorce if this will lead to different financial provision.125 Reviewable transactions include any form of conveyance or lifetime gift,126 including an undervalued sale of the matrimonial home,127 a mortgage,128 or a waiver of priority.129 Not, however, a notice to quit a joint periodic tenancy.130 A transaction is reviewable if it was made with the inten-

118IA 1986 ss 244–245, 340–341.

119IA 1986 ss 423–425. Not a tenancy at the best rent: National Westminster Bank v. Jones [2001] 1 BCLC 98, CA; nor a gift made on advice for sound fiscal reasons Law Society v. Southall [2001] EWCA Civ 2001, [2002] WTLR 1151.

120[2000] 14 LSG 48.

121IA 1986 ss 241 (corporate donor), 342 (individual).

122IA 1986 s 6 (on or after July 26th 1994); JE Adams [1994] Conv 434.

123IA 1986 s 241(3), as amended.

124There is also power to block proposed transactions: MCA 1973 s 37(2)(a); Green v. Green [1981] 1 WLR 391; Hamlin v. Hamlin [1985] 2 All ER 1037, CA (Spanish villa); Shipman v. Shipman [1991] 1 FLR 250; Langley v. Langley [1994] 1 FLR 383, CA; Araghchinchi v. Araghchinchi [1997] 2 FLR 142, CA.

125MCA 1973 s 37.

126But not a gift by will: MCA 1973 s 37(6).

127Sherry v. Sherry [1991] 1 FLR 307, CA.

128Whittingham v. Whittingham [1979] Fam 9; Green v. Green [1981] 1 WLR 391; Perez-Adamson v.

Perez Rivas [1987] Fam 89, CA; B v. B (No 2) [1995] 1 FLR 374, CA.

129Kemmis v. Kemmis [1988] 1 WLR 1307, CA; H v. H (1979) 10 Fam Law 152.

130Newlon HT v. Alsulaimen [1999] AC 313, HL.

tion of defeating the claim to financial relief,131 but this intention may be presumed for three years where the practical effect of a dealing is to defeat a claim for financial relief.132

Purchasers are protected by the rule that a disposition for valuable consideration cannot be set aside against a purchaser acting in good faith and without notice – actual, imputed, or constructive133 – of the intention to defeat the spouse’s claim for financial relief.

H. DEFECTIVE LINKS

[24.25] A defective transfer operates, when registered, to vest the legal estate in the person to whom the transfer is made, but the title conferred may be upset. It will be crucially important to determine whether the transfer is void or voidable.

1.Transfer void – title of forger

[24.26] A forgery is void, as is any transfer to which non est factum applies.134 Since the deed conveying unregistered land is not executed by the real owner of the estate, no title at all passes. Where title is registered, registration of the forger’s title vests legal title in him.135 However the true owner can establish in court proceedings that the title is void and seek rectification of the register to remove the forger from it. Under the old law rectification could be awarded where any entry in the register was “obtained by fraud”, the target being fraud on the registration process itself. 136 So this is a non-prejudicial alteration which is made automatically when a forger or an accomplice is uncovered, with no protection provided by possession and no indemnity.137

2.Transfer void – successors to forgery

[24.27] If title is unregistered, a forgery could pass no title to any successor, innocent or guilty. Even an innocent buyer could be duped out of his money by a worthless title in this way. Adverse possession will eventually validate a title but for 12 years the title remains vulnerable to an action by the true owner.138

131Shipman v. Shipman [1991] 1 FLR 250.

132MCA 1973 s 37(5).

133S 37(4); Green v. Green [1981] 1 WLR 391; Kemmis v. Kemmis [1988] 1 WLR 1307, CA; Sherry v. Sherry [1991] 1 FLR 307, CA; B v. B (No 2) [1995] 1 FLR 374, CA; Le Foe v. Le Foe [2001] 2 FLR 970.

134Norwich & Peterborough BS v. Steed [1993] Ch 116, 125D–128G, Scott LJ (unsuccessful); the leading authority discussed extensively in the following paras.

135LRA 2002 ss 23, 27; RJ Smith (1985) 101 LQR 79.

136LRA 1925 s 82(1)(d); Argyle BS v. Hammond (1985) 49 P & CR 148, CA; Norwich & Peterborough BS v. Steed [1993] Ch 116, 134B–F, Scott LJ; Buckinghamshire CC v. Briar [2002] EWHC 2821 (Ch), [2002] December 20th, [143–150], Lawrence Collins J.

137See above [11.39].

138He needs to claim promptly after discovery of his right to claim.

So it is with registered land. This was a case of automatic rectification under the old law139 and is now therefore a case of non-prejudicial alteration. The pleaded facts in Norwich & Peterborough BS v. Steed140 were that the owner of a house alleged that while he was abroad a transfer was forged in favour of his sister and brother-in-law. They obtained a mortgage on the strength of that forgery from innocent lenders. Scott LJ held that a person deprived of his land by a forged document was entitled to reclaim it. A court declaration of the forgery would be followed by rectification of the register to remove the lender who relied on the forgery. The building society obtained an indemnity.

3.Transfer voidable – title of defrauder

[24.28] Legal title does pass under a voidable transfer, but the transfer can be set aside because of some misconduct practised by the recipient on the person making the transfer. Examples are transfers made by a senile person under undue influence,141 fraudulent misrepresentation,142 and gerrymandering.143

Registered titles can be upset in the same circumstances as unregistered titles,144 since misconduct established in court proceedings145 leads to automatic nonprejudicial alteration. Examples are attempts to defeat property adjustment applications,146 a mother ripped off by her daughter, 147 and the fraud been practised on the attorney who executed the transfer by the sister and brother-in-law of the proprietor in Norwich & Peterborough BS v. Steed.148

4.Transfer voidable – innocent buyers

[24.29] If title is unregistered, a valid title can be passed on to subsequent buyers if they obtain title before rescission of a voidable conveyance.149 parallel law for registered titles to put an innocent purchaser or lender150 beyond the reach of rectification if they would have a good title on unregistered principles. The old law which treated

139 LRA 1925 s 82(1)(a); Att-Gen v. Odell [1906] 2 Ch 47; Re De Leeuw [1922] 2 Ch 540, 554–557, Peterson J; Morelle v. Wakeling [1955] 2 QB 379, CA; Att-Gen v. Parsons [1956] AC 421, HL. Earlier cases also used LRA 1925 s 82(1)(h) under which the court had a discretion and possession was likely to be decisive; in modern terms that is there was a rectification rather than an alteration.

140[1993] Ch 116, 133C–G, Scott LJ.

141Re Beaney [1978] 1 WLR 770; see below [30.53ff].

142Collings v. Lee [2001] 2 All ER 332, CA; R Nolan [2001] CLJ 477. But not innocent misrepresentation or mistake: Steed [1993] Ch 116, 132B, Scott LJ.

143National & Provincial BS v. Ahmed [1995] 2 EGLR 127, CA.

144Previously LRA 1925 s 114; the failure to re-enact this section might alter some of the explanation in this passage.

145Previously LRA 1925 s 82(1)(a).

146Kemmis v. Kemmis [1988] 1 WLR 1307, 1321A–D, Purchas LJ.

147Re Leighton’s Conveyance [1937] Ch 149, CA; H Potter (1937) 53 LQR 308; DC Jackson (1972) 88

LQR 93

148[1993] Ch 116, CA.

149Hayes v. Nwajiaku [1994] NPC 83; National & Provincial BS v. Ahmed [1995] 2 EGLR 127, CA.

150Norwich & Peterborough BS v. Steed [1993] Ch 116, 136G–138C, Scott LJ; Re Leighton’s Conveyance

[1936] 1 All ER 667, Luxmoore J; on appeal [1937] Ch 149, 152, Wright MR; H Potter (1937) 53 LQR 308; DC Jackson (1972) 88 LQR 93.

this as a prejudicial rectification151 may have achieved fairer results. A lender will be bound if the true owner retains occupation and hence has status to override the mortgage.152

I.MERE EQUITIES

[24.30] A mere equity is a right to a equitable remedy which is discretionary in character,153 so that the substance of the right is the possibility of applying to the court for an order to enforce the right. Examples are the right to set aside a transaction for undue influence154 and the right to rectify a document for mistake.155 Much academic comment arose from the putative development of the rights of deserted wives as a mere equity156 before this development was squashed by the House of Lords.157

A modified form of notice doctrine applies.158 Protection against a mere equity could be given by acquisition of an equitable interest,159 though most cases have concerned legal estates.160 So if a lease states a rent of £130 when it was agreed at £230, a mortgage lender can insist on paying the lower rent.161 In principle, protection is also removed against a discoverable mere equity, but a buyer is entitled to rely on apparently valid title deeds, and it will be difficult to dispute the diligence of a buyer.162

Mere equities relating to a registered title are now declared to be proprietary.163 These rights are rarely recorded on the register, so the crucial question is whether there is an overriding interest through actual occupation.164

151See the discussion of the case of Haigh, the acid bath murderer: TBF Ruoff (1969) 32 MLR 121, 140–41.

152Collings v. Lee [2001] 2 All ER 332, CA; R Nolan [2001] CLJ 477; Malory Enterprises v. Cheshire Homes (UK) [2002] EWCA Civ 151, [2002] Ch 216.

153HWR Wade [1955] CLJ 160.

154See below [30.54].

155See above [22.30].

156Westminster Bank v. Lee [1956] Ch 7; RE Megarry (1955) 71 LQR 481; HWR Wade [1955] CLJ 160; FR Crane (1955) 19 Conv (NS) 343; VT Delaney (1958) 21 Conv (NS) 195; A Everton (1976) 40 Conv (NS) 209.

157National Provincial Bank v. Ainsworth [1965] AC 1175, 1226, 1237–1238, 1254.

158See above [15.06ff].

159Phillips v. Phillips (1862) 4 De GF & J 208, 45 ER 1164; Cave v. Cave (1880) 15 Ch D 639, 647–648, Fry J; Blacklocks v. JB Developments (Godalming) [1982] Ch 183, 196G.

160Smith v. Jones [1954] 1 WLR 1089; RE Megarry (1955) 71 LQR 175.

161Garrard v. Frankel (1862) 30 Beav 445, 54 ER 961; Bainbrigge v. Browne (1881) 18 Ch D 188 (undue influence); Bulley v. Bulley (1874) LR 9 Ch App 739 (fraudulent conveyance); De Witte v. Addison (1899) 80 LT 207 (actual notice of undue influence).

162Smith v. Jones [1954] 1 WLR 1089.

163LRA 2002 s 116; Law Com 271 (2001), [5.36] 55% (but academics against).

164LRA 2002 sch 3 para 2; Nurdin & Peacock v. DB Ramsden & Co [1999] 1 WLR 1249, Ch D; G Virgo [1999] CLJ 478; S Pascoe [1999] Conv 421; Holow (470) v. Stockton Estates (2001) 81 P & CR 404, Ch D; Bhullar v. McArdle [2001] EWCA Civ 510, (2001) 82 P & CR 38 at 481; see above [20.19].

25

LEASES

Terms of years. Commencement. Periodic tenancies. Certainty. Formality. Equitable leases. Leases of registered land: substantive registration; notices; overriding; “public” leases. Termination: surrender; merger; break clauses. Residential renting. Licences. Negotiations and tenancies at will. Exclusive licences. Renewal and enfranchisement rights.

A. TERM OF YEARS

[25.01] A lease1 is created when a tenant is given exclusive possession of his landlord’s property for a period of time. This duration is called the term of the lease.2 After 1925 legal status is restricted to the term of years absolute,3 meaning that leases for life are excluded.

1.The term of years absolute

[25.02] A fixed term is one archetype of the lease.4 Exclusive possession must be given for a maximum duration in years ascertained at the outset. Any perpetual interest or indefinite interest creates a freehold estate, rather than a lease.5 If not fixed in the lease, the term may be fixed by reference to some event which is certain at the time of the grant or at least when the lease actually takes effect.6 English law imposes no limit on how long or short the term may be. Mortgages of freehold land used to employ the device of a 3,000 year lease.7 Leases for 999 years are common,8 usually requiring only

1Chappelle Land Law (5th ed) ch 9; Cheshire & Burn (16th ed) ch 17; Dixon’s Principles (3rd ed) ch 6; Goo’s Sourcebook (3rd ed) ch 9; Gravells, LL – Text (1999) ch 5; Grays’ Elements (3rd ed) chs 4, 11; Maudsley & Burn LL – Cases (7th ed) ch 8; Megarry & Wade (6th ed) ch 14; Smith’s Property Law (4th ed) chs 16–18; W Swadling “Property” ch 4 in Birks’ English Private Law, [4.83 ff]; Thompson Modern LL ch 11.

2Contrast the terms on which the land is held, called the covenants, discussed in the succeeding chapter.

3LPA 1925 ss 1(1)(b), 205(1)(xxvii); LRA 2002 s 132(1).

4LPA 1925 s 205(1)(xxvii) includes “a term of years . . .”. The other is the periodic tenancy, see below at

[25.12].

5Sevenoaks Maidstone & Tunbridge Rly Co v. London Chatham & Dover Rly Co (1879) 11 Ch D 625, 635, Jessel MR.

6Bishop of Bath’s case (1605) 6 Co Rep 34b, 35b, 77 ER 303; Re Midland Railway Co’s Agreement [1971] Ch 725, 731H, Russell LJ.

7LPA 1925 s 85(2).

8[1982] Conv 95 “supposed to last – like the Third Reich – for a 1000 years or so”; NG James (1998) 19 JLH 1 (long leases common in old Court of Wards). The duration may be associated with the early Christian assumption that the world would end in a thousand years: Revelations xx, 1–7. See also Att-Gen

v.Owen (1805) 10 Ves 555, 560, 32 ER 960, Eldon LC (duration traditionally limited to 40 years); Megarry & Wade (6th ed), [14.004], n 40.

a nominal rent payment so that all the value in the land is transferred to the tenant. However, houses in London are often sold on a 99 year lease and if a substantial rent is reserved, the financial value of the land is divided between the lease and the reversion. The lease is a wasting asset, its value declining with each year that passes and transferring to the ground landlord. Hence the old Irish wisdom that:

The devil never grants long leases.

The damage can be ameliorated by enfranchisement, that is by compelling the landlord to transfer his reversion to a residential leaseholder, but details of those procedures lie beyond the scope of this work.9 Twenty one years is an important cut off point for enfranchisement rights. It was also important for registrability, but leases as short as seven years now require registration.10 Very short terms are recognised, including a “term for less than a year or for a year or years and a fraction of a year.”11 Residential tenancies are often weekly or monthly, a lease of a timeshare may be for one week,12 and why not a lease for one day to watch a Royal procession or a concert?13

“Absolute” has a distinct meaning in the two key phrases, the “term of years absolute” and the “fee simple absolute in possession”.14 It excludes from legal status any fee simple interest liable to end early, whether by condition or determination. Leasehold terms may be “absolute” in this sense, but they are extreme rarities and even then the term can be ended by an agreed surrender.15 So “absolute” when applied to a lease generally means no more than that the maximum duration is fixed in years – that one should be able to tell the longest possible commitment of the landlord. Legal status is allowed to a lease which is:

“liable to determination by notice, re-entry, operation of law, or by a provision for cesser on redemption, or in any other event16 (other than the dropping of a life . . .)”.17

A lease invariably provides for forfeiture if the tenant fails to perform his covenants so that the landlord can end the term by forfeiture after a sufficiently serious breach of covenant.18 Another common provision is a break clause, enabling one or other or both of the parties to end the term by notice.

2.Leases for life at a rent or fine

[25.03] Periods of lives must take effect as beneficial interests behind a trust of land. Leases for life were common before 1926 and special provision had to be made to fit

9Sparkes NLT ch 15; Chold and L Ref A 2002 Part II.

10See below [25.36].

11LPA 1925 s 205(1)(xxvii).

12Cottage Holiday Associates v. Customs & Excise Commissioners [1983] QB 735; M Haley (1995) 24 Anglo-American 236.

13Licences are more usual: Krell v. Henry [1903] 2 QB 740, CA.

14LPA 1925 s 1(1).

15See below [25.62].

16Eg for 10 years or until the next general election if sooner; Eton College v. Bard [1983] Ch 321, CA (until the lease shall cease to be vested in a member of the association).

17LPA 1925 s 205(1)(xxvii).

18See below [26.32ff].

them into the statutory straightjacket. The term of years absolute excludes any interest terminable on “the dropping of a life or the determination of a determinable life interest”. An inherent problem is that the death of the measuring life could leave a family homeless overnight, as happened to the Winterborne family in Hardy’s The Woodlanders19 after old South died. Although legal leases for life were prohibited in 1925, the change was largely cosmetic.

Section 149(6) of the Law of Property Act 1925 converts a lease for life at a rent or fine into a term of 90 years. This catches not only a straight lease for life but also any term of years determinable with life20 or on marriage. Conversion is:

“for a term of ninety years determinable after the death or marriage of the original lessee . . .

by at least one month’s notice in writing . . .”.21

However, this rewritten lease for 90 years is still terminable by notice after the dropping of that same life, so the difference in duration is minimal. The legislation is arbitrary and unnecessary as these examples show:

(1)To A for life is converted to a term of 90 years; an adult would have to live to more than 108 to exhaust the statutory duration, an unlikely longevity.

(2)To B for 99 years if she so long lives, is reduced from 99 to 90 years for no discernible reason.

(3)To C for 99 years if D so long lives is converted to 90 years.22

(4)To E for 10 years if he so long remains a bachelor. Already a term of years absolute,23 this is extended for no good reason from 10 to 90 years.

Any converted lease is terminable by written notice on either side, though the landlord usually has the greatest interest in ending it. Notice must be of at least one month’s duration, and may expire on any subsequent quarter day.24 If the lease was granted in 1954 (meaning that the converted term expires in 2044) and the tenant dies on October 28th 2002, it can be terminated by one month’s notice to expire on December 25th 2002 or any later quarter day.

3.Equitable leases for life

[25.04] A voluntary lease for life reserves no rent and no premium.25 Such leases are overreachable, and are practically identical to a life interest except that repairing obligations are more easily imposed. Today they operate under a trust of land, but before 1997 they had to be created under a trust for sale unless the settlor was happy

19T Hardy chs 13–15. The birthplace near Dorchester was held by his father on a lifehold.

20Bass Holdings v. Lewis [1986] 2 EGLR 40, CA (tenancy terminable by notice after tenant’s death not a lease for life).

21Detailed provisions govern the date on which notice must be served. It applies to leases, underleases and contracts for commercial leases: Blamires v. Bradford Corp [1964] Ch 585.

22LPA 1925 s 149(6)(c).

23S 205(1)(xxvii) does not refer to marriage.

24Unless special quarter days are agreed (s 149(6)(d)), the quarter days are December 25th, March 25th, June 24th, and September 29th.

25Skipton BS v. Clayton (1993) 66 P & CR 223, CA (sale below market price subject to rent-free right for sellers to occupy for life; this was value); Waite v. Jennings [1906] 2 KB 11 (on 1881 Act).

for the strict settlement machinery to apply.26 Commercial terms were not converted if they took effect in equity under a (strict?27) settlement and in this way a life interest could be made subject to a rent.

B. COMMENCEMENT

[25.05] A perfect lease requires a certain beginning as well as a certain ending.28

1.The commencement date

[25.06] Odd as it may seem, the long established rule is that if a lease runs “from” a stated day, that day is not part of the term,29 though it may be brought in by express words or contrary indications.30 The length of the term may be measured from a date before the grant of the lease to the tenant, though rent should not predate the right to occupation.31 Hence it is possible to achieve a common termination date across a leasehold development. When a tenant holds over at the end of a previous lease, new terms can be agreed later to operate from the end of the previous lease.32

2.Future leases

[25.07] A legal lease may operate immediately from its grant or it may entitle the tenant to possession of the land only in the future. A future lease33 which is to operate at law must be created by deed.34 Section 149(3) of the Law of Property Act 1925 states that:

“A term, at a rent or granted in consideration of a fine . . . to take effect more than 21 years from the date of the instrument purporting to create it shall be void . . .”.35

A lease in 1999 to confer possession in 2018 is valid, but if possession were deferred until 2025 it would be void. Why aren’t gratuitous leases included since the burden is even greater? Swift v. Macbean36 apparently allowed a legal lease to commence on an

26SLA 1925 s 1; Binions v. Evans [1972] Ch 359, CA.

27LPA 1925 s 149(6)(a) refers to SLA 1925 s 117(1)(xxiv); this may now be spent.

28Marshall v. Berridge (1881) 19 Ch D 233, 245, Lush LJ; Say v. Smith (1530) 1 Plowd 269, 75 ER 410; Blackstone’s Commentaries vol 2, 143; Prudential Assurance Co v. London Residuary Body [1992] 2 AC 386, 390, Lord Templeman.

29Sidebotham v. Holland [1895] 1 QB 378, CA; Whelton Sinclair v. Hyland [1992] 2 EGLR 158, CA; E Cooke [1993] Conv 206; Yeandle v. Reigate & Banstead BC [1996] 1 EGLR 20.

30Meadfield Properties v. SS for Environment [1995] 1 EGLR 39, Ch D.

31Roberts v. Church Commissioners for England [1972] 1 QB 278, CA (enfranchisement measured from possession date).

32Bradshaw v. Pawley [1980] 1 WLR 10.

33Sometimes called a “reversionary lease”, but this term is also used for a lease sitting between an existing lease and the reversion; see below [27.04].

34Except for a contract for a short lease: LP (MP) A 1989 s 2(5)(a); see below [25.27].

35Exceptions are leases created under settlements, those out of equitable interests, or under equitable powers to mortgage for indemnity.

36[1942] 1 KB 375 (overruled by Lace v. Chantler [1944] KB 368, CA, on termination); Bishop of Bath’s case (1605) 6 Co Rep 34b, 35b, 77 ER 303; Duke of Norfolk’s case (1685) 3 Ch Cas 1, 22 ER 931; Ex p Voisey (1882) 21 Ch D 442, CA.