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

510 25. LEASES

uncertain future date, but the contingency must be fulfilled within a perpetuity period.37

3.Contracts for the creation of leases

[25.08] A contract for a legal lease involves three dates, A when the contract is entered into, B when the legal lease is granted, and C when the term of the lease is to commence. Three restrictions arise: (1) Date B must be agreed, since a contract is not valid without stating a commencement date for the term. This cannot be implied,38 though it may be inferred from taking occupation. (2) The period A–B is regulated by the rule against perpetuities. This limits future vesting of an estate in the tenant.39 Uncertainty about the entitlement of the tenant to the lease must be removed within a perpetuity period, usually expressly stated to be 80 years.40 (3) The period B–C is regulated by the future lease provisions.41 As with legal leases, the legislation focuses on the gap between execution of the lease and its taking effect in possession, that is dates B and C. Once it takes effect in possession, the lease could be for a very long period. Curious anomalies result from section 149(3):

One: A contract is void if created in 1999 (A) for a commercial lease to be granted in 2000 (B) for 40 years from 2025 (C). Two: a contract is valid if created in 1999 (A) to grant a commercial lease in 2016 (B) for a 40 year term from 2025 (C).

4.Perpetually renewable lease

[25.09] Statute defines this as any lease of which perpetual renewal can be enforced by the tenants, with or without conditions.42 Provisions in the Law of Property Act 1922 (as opposed to the 1925 Act) convert such leases to a single, non-renewable term of 2000 years.43 This can be broken by the tenant but not by the landlord. An option to renew once, or to renew when a new rent is agreed44 presents no danger. What transforms an innocuous looking lease into a 2000 year monster is the inclusion of a provision that the renewed lease is itself renewable, since this creates an indefinite loop,45 “sowing the seeds of its own reproduction”. Before 1926 the tenant had to remember

37It is open to question whether the period should be 21 years, 80 years, or a full period of lives in being plus 21 years.

38Harvey v. Pratt [1965] 1 WLR 1025, 1027E, Lord Denning MR.

39Before 1926, future leases escaped perpetuity problems because the tenant acquired only an interesse termini: C Sweet (1914) 30 LQR 66; LPA 1925 s 149(1) (abolition).

40Perpetuities and Accumulations Act 1964 s 1.

41LPA 1925 s 149(6).

42LPA 1922 s 190.

43LPA 1922 s 145, sch 15; SR & O 1925/857. Special terms of the lease are: (1) assignments must be registered with the landlord; (2) no privity of contract liability; and (3) a fine in a pre-1926 lease was converted to extra rent but a fine in a post-1925 lease is lost.

44Marjorie Burnett v. Barclay [1981] 1 EGLR 41. Renewal may be subject to conditions such as performance of the tenant’s covenants but not to agreement of a future rent. Also Plumrose v. Real and Leasehold Estates Investment Society [1970] 1 WLR 52.

45Parkus v. Greenwood [1950] 1 Ch 644, CA (renewal “on same terms, including the present covenant for renewal”); RE Megarry (1950) 66 LQR 22, 162; Re Hopkin’s Lease [1972] 1 WLR 372, CA (correctness open in HL); (1972) 88 LQR 177; Northchurch Estates v. Daniels [1947] 1 Ch 117 (“on identical terms”); RE Megarry (1947) 63 LQR 20; ACT (1945) 9 CLJ 379.

to initiate the process for renewal each time, but the 1922 Act reverses the burden, making the lease continue across the millennia at a fixed rent until the tenant chooses to terminate it before one of the old renewal dates. Landlords should avoid this type of lease at all costs.

5.Options

[25.10] Many leases contain options to renew the lease or to allow the tenant to buy the landlord’s reversion. Essentials are agreement on the price (a premium or rent), contractual formality, and protection usually by estate contract registration.46 The only control on renewal (which occurs when an existing lease ends) is that the term must not be renewed so as to exceed 60 years from the termination of an existing lease.47 Options are usually conditional on observance of the covenants – meaning strict compliance at the date of exercise is required,48 though spent or remedied breaches may be ignored.49 Options to purchase the landlord’s reversion are valid if contained within the lease provided they are exercisable by the current tenant alone, and only during the term or within one year after its end.50 Any other option is subject to the rule against perpetuities, which requires actual exercise within 21 years.51 The benefit probably passes with the lease.52

6.Estoppel

[25.11] Renewal rights can be created by estoppel, but not simply from a long practice of renewing leases;53 there must be a promise of renewal and some detrimental reliance.

C. PERIODIC TENANCIES

[25.12] Most short term tenancies are periodic, a form included in the term of years absolute.54 A term “from year to year”, or yearly tenancy, is an initial grant for one

46See above [21.13].

47LPA 1922 sch 15 para 7(2) for post-1925 options; RE Megarry (1947) 63 LQR 280.

48West Country Cleaners (Falmouth) v. Saly [1966] 1 WLR 1485, CA; Bairstow Eves (Securities) v.

Ripley (1992) 65 P & CR 230.

49Bass Holdings v. Morton Music [1988] Ch 493, CA; West Middlesex Golf Club v. Ealing LBC (1995) 68 P & CR 461, Ch D.

50Perpetuities and Accumulations Act 1964 s 9(1).

51S 9(2); (options after mid-1964). Old law: Muller v. Trafford [1901] 1 Ch 54; Woodall v. Clifton [1905]

2Ch 257; Re Hunter’s Lease [1942] Ch 124; Coronation Street Industrial Properties v. Ingall Industries [1989]

1WLR 304, 307–308, Lord Templeman.

52(1) Pre-1996 leases: Re Adams & Kensington Vestry (1883) 24 Ch D 199; affirmed (1884) 27 Ch D 394, CA; Friary Holroyd & Healey’s Breweries v. Singleton [1899] 2 Ch 261, CA; Batchelor v. Murphy [1920] AC 63, HL; Griffith v. Pelton [1958] Ch 205, CA; Coastplace v. Hartley [1987] QB 948; (2) clearly so under the LT (Covenants) A 1995, ss 2–3, 28; (3) but see: Kumar v. Dunning [1989] 1 QB 193, 207, Browne-Wilkinson V-C.

53Ramsden v. Dyson (1866) LR 1 HL 129; Keelwalk Properties v. Waller [2002] EWCA Civ 1076, [2002]

48EG 142; see above [23].

54LPA 1925 s 205(1)(xxvii).

year which continues to grow by one year at a time, indefinitely,55 until terminated by proper notice.56 A year was the archetypal period for agricultural land, but many residential tenancies are monthly or weekly.

1.Creation

[25.13] Express tenancies may be for any period. Negotiation might lead to a period of a calendar month or periods of twenty eight or thirty days, or indeed some random time such as 47 days. This flexible structure can be moulded to individual needs. Provided that the initial period of the lease is for less than three years oral creation is allowed.57

Periodic tenancies more commonly arise by implication where a tenant occupies land to the exclusion of the landlord and rent is paid and accepted. A tenancy at sufferance arises where a tenant occupies land to the exclusion of the landlord but without his consent, that is as a trespasser who is tolerated.58 Acceptance of the tenant by the landlord creates a tenancy at will. According to Littleton:59

“Tenant at will is where lands or tenements are let by one man to another, to have to hold to him at the will of the lessor, by force of which lease the lessee is in possession . . . he hath no certain or sure estate, for the lessor may put him out at what time it pleaseth him.”

Express tenancies at will arise60 where a prospective tenant is let into occupation without a lease while negotiations continue, where a purported lease is void,61 or where a tenant holds over when his existing lease expires.62

A periodic tenancy is inferred from the payment and acceptance of rent by reference to a particular period, where the payment has no other explanation.63 If a tenant enters a property where no particular term has been agreed, payment of rent leads to the implication of a periodic tenancy. The change from a tenant at will to a periodic tenant has important implications for the onset of security of tenure. As with tenancies at will, so it is with periodic tenancies: implication may derive from allowing exclusive occupation of land during negotiations for a new lease, where an attempted fixed term fails for want of formality or uncertainty,64 or where an existing tenant holds over.

55Hence the odd rule that a yearly tenant can create a valid sub-lease for 99 years: Pennell v. Payne [1995] QB 192, CA; this is surely illogical since the tenancy is only for one year prospectively.

56A lease for a year and so on from year to year is for a minimum duration of two years.

57LPA 1925 s 54(2); otherwise by deed.

58The term “tolerated trespasser” is used for a public sector tenant in breach of the terms of a possession order: P Sparkes NLT, 333–334.

59Littleton’s Tenures book I, ch VIII.

60Wheeler v. Mercer [1957] AC 416, HL; British Railways Board v. Bodywright (1971) 220 EG 651 (parties’ label not accepted).

61Dossee v. Doe d East India Co (1859) 1 LT 345, PC; Meye v. Electric Transmission [1942] Ch 290.

62Hagee (London) v. AB Erikson & Larson [1976] QB 209, CA.

63A tenancy at will may continue despite rent payments: (1) if agreed: Cardiothoracic Institute v. Shrewdcrest [1986] 1 WLR 368, Knox J (query if this really avoids security); (2) if accepted by mistake: Maconochie Bros v. Brand [1946] 2 All ER 778; Sector Properties v. Meah (1973) 229 EG 1097, CA; (3) after a computer generated demand issued in error: Dreamgate Property v. Arnot (1998) 76 P & CR 25, CA; or

(4)after isolated payments: Thompsons (Funeral Furnishers) v. Phillips [1945] 2 All ER 49, CA; Bennett Properties v. H & S Engineering [1998] CLYB 3683, QBD.

64Prudential Assurance Co v. London Residuary Body [1992] 2 AC 386, HL; Blackstone’s Commentaries vol 2, 147; see below [25.18ff].

What period is implied?65 It is not necessarily a yearly tenancy, since the period implied follows from the method by which the rent is calculated. In Ladies’ Hosiery & Underwear v. Parker the example was given, obiter, of a tenant holding over at the expiration of a three year term at rent of £2 per week, which, in Maugham J’s opinion, led to a weekly tenancy.66 Similarly in Prudential Assurance Co v. London Residuary Body67 rent calculated at the yearly rate of £30 was payable quarterly, so that a yearly tenancy arose.

2.Notice to quit

[25.14] Parties to a periodic tenancy start off on the basis that either of the joint tenants may end the tenancy by notice at any time in the future. Lord Millett has said that:

“A periodic tenancy comes to an end on the expiration of a notice to quit served by the landlord on the tenant or by the tenant on the landlord. [I]t comes to an end by effluxion of time. In each case the tenancy is determined in accordance with its terms. [T]he parties have agreed at the outset on the manner of its determination. The parties and their successors in title, including those who derive title under them, are bound by their agreement.”68

A notice to quit is non-consensual in contrast to a surrender, since the notice operates under the terms of the original tenancy agreement and does not require the agreement of the other party.

If the landlord gives notice it is called a notice to quit, whether the landlord genuinely wants possession or whether it is simply a vehicle to secure a rent increase or a variation in the terms.69 Notice is an election to end the existing lease, so the landlord cannot withdraw it unilaterally.70 If the landlord accepts rent after a notice to quit has expired, this may well create a new periodic tenancy.71 A tenant who wishes to leave may give a notice of intention to quit.

Every periodic tenancy must be terminable by notice. The length of notice is decided, first, by any express provision in the tenancy agreement, which need not be linked to the period of the tenancy. In Re Midland Railway Co’s Agreement, a sixmonthly tenancy was terminable by three months’ notice.72 Express agreement can also require a longer period of notice, despite theoretical problems with repugnancy, so long as the period of notice is of certain duration.73 Failing an express agreement, the length of notice to terminate a periodic tenancy is implied to reflect the period of the tenancy. Yearly tenancies can be terminated by half a year’s notice74 which must

65If there is any express agreement this is determinative.

66[1930] 1 Ch 304, 325 (a tedious and complex case despite its promising name); left open on appeal.

67[1992] 2 AC 386, HL.

68Barrett v. Morgan [2000] 2 AC 264, 270C–E, Lord Millett.

69Ahearn v. Bellman (1879) 4 Ex D 201, CA.

70Lower v. Sorrell [1963] 1 QB 959, CA; RE Megarry (1963) 79 LQR 178; DG Barnsley (1963) 27 Conv (NS) 335; A Dowling [1994] Conv 437 (prefers the Irish view permitting withdrawal).

71But in some cases not even a tenancy at will was created, below [25.82].

72[1971] Ch 725, CA.

73Breams Property Investment Co v. Stroulger [1948] 2 KB 1, CA (three years’ notice); DC Potter (1948) 11 MLR 342; Prudential Assurance v. London Residuary Body [1992] 2 AC 386, 395A.

74A full year’s notice was considered too long by the old common law.

expire on an anniversary date of the commencement of the tenancy. If rent is paid on October 10th, the tenancy could be terminated at the end of October 9th in any subsequent year by a notice served on or before May 9th in the year of termination.75 At the worst moment in the cycle termination could be delayed for one day less than two years. If the period is less than a full year, the length of notice required is equal to the period of the tenancy. Thus to terminate a monthly tenancy a full month’s notice is required,76 and for a weekly tenancy it is one week’s notice; in each case notice must expire at the end of a full period of the tenancy.77 A monthly tenancy created on July 15th can be terminated by notice expiring at the end of the 14th day of August, September, October, or any subsequent month.78 If a house is inhabited, notice must be of at least 28 days or four calendar weeks (on either side) but this period is unrelated to the period of the tenancy.79 It may be implied that notice should not be served too far in advance.80

All derivative interests end if a head lease ends by forfeiture81 or notice to quit: when a periodic tenant serves notice to quit, this ends the head tenancy, and the effect is to bring to an end any sub-tenancy.82

3.Notice to quit – formal requirements and duration

[25.15] Most notices relating to land must be in writing,83 including any required by a document made after 1925,84 although unfortunately this statutory rule does not apply to a periodic tenancy if the term about the length of the notice to quit is implied.85 Validity of a notice depends upon service by the correct landlord on the correct tenant. Service must be proved either in person or more commonly by post.86 Notices can be sent by registered post, or recorded delivery for statutory notices,87 but ordinary post will not do.88 A notice sent by registered post is deemed to be served if it is not returned even if it never in fact arrived.89

75If the tenancy was created on a traditional quarter day (December 25th, March 25th, June 24th and September 29th) two quarter’s notice is required. Otherwise the corresponding date rule is applied; see below [25.15].

76But see E Cooke [1992] Conv 263.

77Where the creation date of the tenancy is unknown, this is assumed to be the date on which the rent is paid. The effect of minor errors is considered in the context of break notices.

78See below [25.15].

79Protection from Eviction Act 1977 s 5.

80Contrast: Multon v. Cardell [1986] 1 EGLR 44; and Biondi v. Kirklington & Piccadilly Estates [1947] 2 All ER 59, Roxburgh J.

81Great Western Rly Co v. Smith (1876) 2 Ch D 235, CA, affirmed (1877) 3 App Cas 165, HL. The subtenancy may become liable to forfeiture.

82Barrett v. Morgan [2000] 2 AC 264, HL; L Tee [2000] CLJ 25; Pennell v. Payne [1995] QB 192, CA.

83LPA 1925 s 196(1); JE Adams [1980] Conv 246, 323; New Hart Builders v. Brindley [1975] Ch 342, Goulding J (option to renew).

84Including a notice of severance: Re 88 Berkeley Road NW 9 [1971] Ch 648, Plowman J; Kinch v. Bullard [1999] 1 WLR 423, Ch D.

85Wandsworth LBC v. Atwell [1995] 1 WLR 95, CA; JE Adams [1995] Conv 186; J Montgomerie (1952) 16 Conv (NS) 98, 107.

86LPA 1925 s 196(4); P Sparkes NLT, 591–593.

87Recorded Delivery Service Act 1962 s 1.

88Holwell Securities v. Hughes [1973] 1 WLR 757, Templeman J; contrast Yates Building Society Co v. RJ Pulleyn & Sons (York) [1976] 1 EGLR 157, CA.

89Commercial Union Life Assurance Co v. Moustafa [1999] 2 EGLR 44, Smedley J; HW Wilkinson

Months90 measured from (say) January 20th, expire on the 20th day of February, March, April and so on. The number of days in a particular month is irrelevant, so that if notice is required of so many months duration it may expire on the corresponding date of any later month. In Dodds v. Walker91 a business tenant had four months to apply to the court for a renewal of his lease, a period which ran from the date of the landlord’s notice on September 30th 1978. The date of service (September 30th) was excluded, so the notice expired on the corresponding day (January 30th 1979). Application on the 31st was out of time.92 The corresponding date rule applies to years, quarters measured from a quarter day,93 and quarters measured from other dates (which equal three months).94 Since a week is a certain period of seven days there is no need for a corresponding date rule.95

Where a period is measured “from” a particular date, the rule in Sidebotham v. Holland96 operates to exclude that date. So a term from September 20th actually begins on the 21st and ends at midnight on the 20th in a later month.97 Sidebotham is counter-intuitive, and is easily excluded.98

The new rule is that notices are to be interpreted in a purposive way so that a notice clear to a reasonable recipient will be valid.99 This might even overcome100 the doubts felt at common law about a notice to quit in the alternative.101

4.Short tenancies held jointly

[25.16] Co-ownership of short tenancies is common, since it is natural for couples to rent living accommodation together. However, legal analysis of this common arrangement was greatly complicated by the simplifications of 1925.

Apparently, a short term tenancy can only be held by joint tenants. When it is, a statutory trust of the land is created.102 A tenancy in common is equally possible.

[2001] NLJ 275; WX Investments v. Begg [2002] EWHC 925, [2002] 1 WLR 2849, Patten J; Blunden v. Frogmore Investments [2002] EWCA Civ 573, [2002] 2 EGLR 29 (notice attached to Arndale Centre Manchester after it had been damaged by an IRA bomb).

90The rule for calendar months is given by LPA 1925 s 61(4).

91[1981] 1 WLR 1027, HL; JT Farrand [1981] Conv 321.

92EJ Riley Investments v. Eurostile Holdings [1985] 2 EGLR 124, CA; (1986) 102 LQR 3.

93March 25th, June 24th, September 29th, December 25th.

94Samuel Properties (Developments) v. Hayek [1972] 1 WLR 1296, CA; (1972) 88 LQR 459.

95Okolo v. SS for Environment [1997] 4 All ER 242, CA.

96[1895] 1 QB 378, CA.

97Notice to quit at noon is invalid. Bathavon RDC v. Carlile [1958] 1 QB 461, CA; Yeandle v. Reigate

&Banstead BC [1996] 1 EGLR 20 (notice to give possession on September 28th 1993 implied termination at the end of the 28th or beginning of the 29th).

98Ladyman v. Wirral Estates [1968] 2 All ER 197; Meadfield Properties v. SS for Environment [1995] 1 EGLR 39; Burman v. Mount Cook Land [2001] EWCA Civ 1712, [2002] 1 EGLR 61.

99See below [25.65].

100Speedwell Estates v. Dalziel [2001] EWCA Civ 1277, [2002] HLR 43 (rule not applying to notice lacking crucial statutory details); Trafford MBC v. Total Fitness UK [2002] EWCA Civ 1513, 44 EG 169 (CS).

101Barclays Bank v. Bee [2001] EWCA Civ 1126, [2001] 37 EG 153; also: Bridges v. Stanford [1991] 2 EGLR 265, CA; Addis v. Burrows [1948] 1 KB 444; P Phipps & Co (Northampton & Towcester Brewers) v.

Rogers [1925] 1 KB 14, CA.

102Hammersmith & Fulham LBC v. Monk [1992] 1 AC 478, HL; Crawley BC v. Ure [1996] QB 13, CA; Notting Hill HT v. Brackley [2001] EWCA Civ 601, [2001] 3 EGLR 11.

Joint tenancy implies equal participation and equal obligations. AG Securities v. Vaughan103 concerned a four bedroomed furnished flat with a communal sitting room and bathroom. No occupant had exclusive possession of any one room. Each of four men signed an occupation agreement described as a “licence”, each arriving on a different date and making various monthly payments, so that at any one time there was a mixture of fixed licences for six months and monthly holdings.104 A joint tenancy was rejected because the unities of time, title and interest were missing.105 “Initially several”, Lord Bridge could not understand “by what legal alchemy they could ever become joint.”106 So it was impossible to have a tenancy in common of a short term tenancy. This view can just about be justified. The co-ownership trust107 can only be created by a “conveyance”, a concept which involves at least a written document,108 and so holding an oral tenancy in common is not allowed.109

5.Unilateral notice to terminate a joint periodic tenancy

[25.17] Hammersmith & Fulham LBC v. Monk110 decides that a periodic tenancy can be ended by one of the joint tenants acting unilaterally. Common law notice given by any one without the concurrence of the others ends a joint periodic tenancy unless the rule is altered by the terms of the tenancy itself.111 The decision was heavily influenced by the particular facts. Mr Monk was the joint tenant of council property with Mrs Powell. After they fell out, she left the property and sought to be rehoused but the housing authority told her that she would only be rehoused112 if she terminated her existing tenancy, thus freeing the public accommodation which they had shared.

Dealing with a joint legal tenancy requires a joint act for termination.113 Examples are the exercise of a break clause, a disclaimer, an option to renew, and applying for relief from forfeiture.114 A unilateral surrender failed in Hounslow LBC v. Pilling.115 Miss Doubtfire wrote a letter on Friday to terminate a weekly tenancy the next Monday, which was invalid as a notice since the duration of the notice was less than 28 days,116 and invalid as a surrender since any dealing had to be joint.

103[1990] 1 AC 417, HL; UHU Property Trust v. Lincoln CC [2000] RA 419, Sullivan J (issue council tax).

104House sharing in the style of The Young Ones is under threat from rule that any household with more than two unrelated people sharing will be an HMO.

105At 472B, Lord Oliver; also in CA at 433, Sir George Waller.

106At 454A; PV Baker (1988) 104 LQR 173, 174–175.

107LPA 1925 s 1(6). Technical co-ownership rules are really inappropriate: Lloyd v. Sadler [1978] QB 774, 788G, Lawton LJ; Savage v. Dunningham [1974] Ch 181, 185, Plowman J.

108LPA 1925 s 34 (as amended), 62, 205(1)(ii); Borman v. Griffith [1930] 1 Ch 493, 498–499; Rye v. Rye [1962] AC 496, HL.

109LPA 1925 s 34(1).

110[1992] 1 AC 478, HL; J Dewar (1992) 108 LQR 375; L Tee [1992] CLJ 218.

111A release by T1 to T2 is an assignment of the tenancy not a surrender: Burton v. Camden LBC [2000] 2 AC 399, HL.

112Local authorities have used Monk to end the tenancy of a violent partner and to regrant a tenancy of the same property to the victim, but surely this reassignment should be made after an exercise of judicial discretion.

113Eg enfranchisement: Wax v. Chelsea [1996] 2 EGLR 80.

114Hammersmith & Fulham LBC v. Monk [1992] 1 AC 478, 490G, Lord Bridge.

115[1994] 1 All ER 432, CA; L Tee [1994] CLJ 227; Burton v. Camden LBC [1998] 1 FLR 681, CA (deed of release); Osei-Bonsu v. Wandsworth LBC [1999] 1 WLR 1011, CA.

116Protection from Eviction Act 1977 s 5.

Monk looks suspect in creating a divide between a surrender and a notice to quit.117 Nevertheless Lord Bridge ruled in Monk that a periodic tenancy created an estate in the land for one period at a time, and it continued to the next period only if all parties wished it to do so. Blackstone speaking of a yearly tenancy, observed that it continues during the will of both parties. Nineteenth118 and twentieth119 century opinions and authorities support this view because it avoids the inconvenience of holding a joint tenant bound for life by a tenancy he no longer wants.

Although Monk enables a local authority to break a public sector “secure” tenancy after domestic violence and relet the property to the victimised partner, it can also work most unfairly. When one party deserts the home, what is to stop him or her then serving notice to quit as a simple matter of spite and forcing the former partner out of the home that they had shared? Or to foil an attempt to exercise the right to buy?120 Presumably the other joint tenant is not entitled to any period of notice from the landlord at all. A number of attempted solutions have failed. No action is allowed for breach of the statutory co-ownership trust.121 Family law non-molestation orders failed to help in Harrow LBC v. Johnstone,122 even, apparently,123 if the wording of the injunction had expressly prohibited service of a notice to quit(!) The remaining spouse cannot rely on the divorce legislation. A divorcing spouse could apply for an order transferring the tenancy from joint names to the name of the spouse who wishes to stay,124 but a notice to quit ends the tenancy so there is nothing left to transfer. In Newlon Housing Trust v. Alsulaimen,125 a husband obtained legal aid for his application for a transfer of the tenancy of the former matrimonial home, but his former wife gave notice to quit and the landlord sought immediate possession in advance of the husband’s application in the family court. She crabbed his matrimonial application. Her notice was not a disposition intended to preclude matrimonial relief. Nor is the matrimonial home right any protection.126

It remains arguable that Monk is an unjustified interference with the tenant’s right to respect for his home.127

117Howson v. Buxton (1928) 97 LJKB 749, 752, Scrutton LJ; Monk [1992] AC 478, 491, Lord BrowneWilkinson (“strong and logical”).

118Doe d Aslin v. Summersett (1830) 1 B & Ad 135, 109 ER 738; Doe d Kindersley v. Hughes (1840) 7 M & W 139, 151 ER 711; Alford v. Vickery (1842) Car & M 280, 174 ER 507.

119Leek & Moorlands BS v. Clark [1952] 2 QB 788; Smith v. Grayton Estates [1960] SC 349; Greenwich LBC v. McGrady (1982) 46 P & CR 223, CA; Parsons v. Parsons [1983] 1 WLR 1390; Annen v. Rattee [1985]

1EGLR 136, CA.

120Bater v. Bater [1999] 4 All ER 944, CA.

121Crawley BC v. Ure [1996] QB 13, CA; Notting Hill HT v. Brackley [2001] EWCA Civ 601, [2001] 3 EGLR 11.

122[1997] 1 WLR 459, HL; MP Thompson [1997] Conv 288.

123At 470H, Lord Mustill, 471, Lord Hoffmann.

124Family Law Act 1996 s 53, sch 7 (including cohabitees).

125[1998] 1 AC 313, HL; Harrow LBC v. Johnstone [1997] 1 WLR 459, 471, Lord Hoffman; MP Thompson [1997] Conv 288.

126Sanctuary H Ass v. Campbell [1999] 1 WLR 1279, CA.

127Qazi v. Harrow LBC [2001] EWCA Civ 1834, [2002] HLR 14 at 276; I Loveland (2002) 3 EHRLR

D. CERTAINTY

[25.18] A tenancy granted until a future event occurs runs the risk that the event may never occur, so that what is intended to be a short term turns into a perpetual burden on the land. This danger is avoided by requiring a term to be certain in advance.

1.Fixed terms

[25.19] A lease must obviously be certain in retrospect. When the time comes for the lease to end, this fact must be clear. In addition, the law has insisted since at least 1530128 that the duration of a lease must be fixed with prospective certainty, that is in advance, either by a fixed date or by reference to a certain future event. In Lace v. Chantler129 a tenancy “furnished for duration” – that is for the duration of the Second World War – was struck down by the Court of Appeal.130 In, say 1940, one could not tell for how many years the war would last. At the time of the litigation in 1944, the war was still on with no end in sight, though fortunately the tide had turned.

After some contrary decisions131 the test of prospective certainty was unanimously approved by the House of Lords in Prudential Assurance Co v. London Residuary Body.132 A lease of land fronting Walworth Road in London was granted in 1930 to continue until the land was required for road widening. This single uncertain term was void. By 1992 it had become extremely unlikely that the road would ever be widened and to have allowed the lease to stand would have been to confer a perpetual right of possession at a fixed rent of £30 a year. That injustice was avoided by invalidating the term. A tenancy at will arose, converted to a periodic tenancy by payment and acceptance of rent,133 which could be terminated to allow the rent increase.

2.Avoiding uncertainty

[25.20] Lord Browne-Wilkinson characterised the result of Prudential Assurance Co v. London Residuary Body as unsatisfactory, but Lord Templeman provided no hint of unease at the result to which his technical analysis directed him. Academic opinion is also divided.134

128Say v. Smith (1530) 1 Plowd 269, 75 ER 410; Bishop of Bath’s case (1605) 6 Co Rep 34b, 35b, 77 ER 303; Coke on Littleton, [45b]; Blackstone’s Commentaries vol 2, 143; T Platt, Law of Leases (1847) vol 1, 22.

129[1944] KB 368, 370; Joseph v. Joseph [1967] Ch 78, 86D–G (to give up occupation “by July 31st 1960”, valid).

130[1944] KB 368; (1944) 60 LQR 219; JDGJ (1945) 9 CLJ 121; Eker v. Becker [1946] 1 All ER 721.

131Ashburn Anstalt v. Arnold & Co [1989] Ch 1, CA (until notice that the landlord was ready to begin development); Canadian Imperial Bank of Commerce v. Bello (1991) 24 HLR 155, CA (until builder paid for building work); Prudential [1992] 2 AC 386 in CA.

132[1992] 2 AC 386, HL; P Sparkes (1993) 109 LQR 93; PF Smith [1993] Conv 461; S Bridge [1993] CLJ 26; D Wilde (1994) 57 MLR 117; M Biles [1994] NLJ 156; M Haley (1995) 24 Anglo-American 236.

133See above [25.13].

134[1992] 2 AC 386, 396G. Contrast P Sparkes (1993) 109 LQR 93, 110–113 (decision correct); and S Bright (1993) 13 LS 38 (decision unfair).

Two techniques are available to avoid uncertainty if this is thought desirable. In Great Northern Railway Co v. Arnold,135 a lease for the duration of the Great War was treated as a lease for 999 years terminable on the cessation of that war, though Lace v. Chantler136 suggests that the selection of 999 years was artificial; why not the more optimistic period of 10 years adopted by statute towards the end of the second war?137 Even 999 years might not be long enough to cover the period until Scotland wins the World Cup,138 or indeed until they reach the second phase. Equity has the same rule,139 since specific performance of an agreement to create an uncertain term would create an invalid lease of uncertain duration.140 So a tenant who failed for uncertainty in the common law courts,141 before transferring to equity and trying again, also failed on this second occasion for uncertainty.142 However, equity is sometimes able to reinterpret an agreement, for example by treating an uncertain term as a lease for life,143 which will now act as a term of 90 years.144

3.Certainty of periodic tenancies

[25.21] A periodic tenancy is in its very nature uncertain.145 Initially for one period, it will roll on from one period to the next until one or other of the parties brings it to an end by notice. A monthly tenancy which has lasted for 50 years is for the future for one month only. The maximum commitment can be fixed at any moment by service of notice. Each occupational unit of time, as it is added to the preceding unit, is of certain duration.146

Prudential Assurance147 has swept away the decision in Re Midland Railway Co’s Agreement,148 which allowed periodic terms to have attached to them an uncertain minimum duration. Some railway land – a mere 100 square yards149 – was granted in 1920 subject to a term which prevented the landlord from serving notice unless the land was required for the purposes of the railway. No need had arisen by 1971, so the tenant had what was effectively an indefinite right to occupy at a fixed rent. This was not a valid tenancy, since Midland Railway has been overruled, and prospective certainty is stated as a requirement for periodic tenancies. Thus, in Prudential

135(1916) 33 TLR 114; Siew Soon Wah v. Yong Tong Hong [1973] AC 836, 844 (this lease shall be permanent 30 years, the maximum allowed under Malaysian law.)

136[1944] KB 368, 371, Lord Greene MR; 372, MacKinnon LJ.

137Validation of War Time Leases Act 1944 s 1(1); [1992] 2 AC 386, 391G–392A, Lord Templeman.

138Compare [1992] 1 EGLR 47, 51A (until England wins the Davis Cup, an example happily less striking ten years after Scott LJ suggested it).

139Harvey v. Pratt [1965] 1 WLR 1025, 1026E, Lord Denning MR; Marshall v. Berridge (1881) 19 Ch D 233, 245, Lush LJ; contrary to Wallis v. Semark (1951) 2 TLR 222, 226.

140Cheshire Lines Committee v. Lewis & Co (1880) 50 LJQB 121, 129, Brett LJ.

141Doe d Warner v. Browne (1807) 8 East 165, 103 ER 305.

142Browne v. Warner (1808) 14 Ves 156, 33 ER 480.

143Prudential [1992] 2 AC 386, 409; Re King’s Leasehold Estates (1873) LR 16 Eq 521, 527, Malins V-C; Cheshire Lines (1880) 50 LJQB 121, 126, 129; Wood v. Beard (1876) 2 Ex D 30, 36.

144LPA 1925 s 149(6); Zimbler v. Abrahams [1903] 1 KB 577, CA; Binions v. Evans [1972] Ch 359 367E–H, Lord Denning MR.

145Re Midland Railway Co’s Agreement [1971] Ch 725, 732F–G.

146Hammersmith & Fulham LBC v. Monk [1992] 1 AC 478, 484E, Lord Bridge.

147[1992] 2 AC 386, 395G, Lord Templeman.

148[1971] Ch 725, CA; D Macintyre [1971] CLJ 198.

149Less than 10 metres by 10 metres.