land law, estates in land II Flashcards
Estates and interests – focus on Street, Bruton and Mexfield
Estates and interests – focus on Street, Bruton and Mexfield
What are these three cases?
The holy Trinity in the land law sense regarding the concept of a lease.
Why is Street v Mountford such an important case?
- Huge case because of the lord Templeman’s hallmarks
- Leading opinion – given by lord Templeman.
- Other judges agreed with him in his judgement.
- Lord Templeman trying to settle a point of law and create legal certainty.
- Requesting for certainty in the law because we have a lot of naughty landlords undertaking sham lease activity.
- Landlords aiming to revoke licences, pretending to be leases in a way (mentioned last week)
- This was the HOL stamping down on sham leases.
What occured in Street v Mountford, and what was the outcome of the situation?
- Mrs Mountford granted a leasehold or licence?
- Property in Dorset.
- She signed an agreement containing a ‘license fee’ of £37 pounds a week.
- The agreement also said, ‘the license may be terminated by 14 days written notice’.
- Lord Templeman found there was a lease, despite the use of the word licence.
- Because, he found there to be exclusive possession as Mrs Mountford could exclude others from the property.
In order to create a lease, there must be an intention to do so, so how could this be an example of a lease when in the agreement the term licence was used?
Well because for Lord T the fact the parties had intended exclusive possession was enough to say that in reality, they had intended a lease.
What did Lord Templeman state in this case?
He says, “my lord the only intention which is relevant is that intention demonstrated by the agreement to grant exclusive possession for a term at a rent”.
What does this judgement therefore tell us?
- Perhaps, to understand a lease, we should put exclusive possession at the pinacol of importance.
- In substance, things may look like licence, but exclusive possession hints a lease.
Therefore, what should always be taken into consideration when considering an agreement and its terms?
What we should do when looking at agreement is have in mind that the parties cannot alter the effect of an agreement by insisting that they only created a licence.
What did Lord Templeman state regarding this?
- He says, “the manufacture of a five-pronged implement for manual digging results in a fork, even if the manufacturer unfamiliar with the English language insists that the intent was to make a spade”.
Essentially, what is of importance is not necessarily what was written in the agreement but what was intended by the parties.
Which case may we twin with Street v Mountford?
Aslan v Murphy [1990]
What occured in Aslan v Murphy [1990] and what was the outcome?
Owner cannot create a ‘sham’ agreement to deny a lease.
- Sham lease case
- The landlord went through a lot of trouble to ensure she had not created a lease.
- There was a right to place others in the property, doesn’t denote exclusive possession.
- She also stated cleaners could enter and that the owner could keep a key.
- She did this in aims to pursue a licence, not a lease.
- In reality, the occupiers had exclusive possession, no other occupiers, no cleaning services had taken place, they had exclusive possession.
- Sham agreement in the sense that this was actually a lease.
- The owner cannot take possession, they had exclusive posession.
Which case futher exemplifies sham leases? This is a tripple to the S+M layer,
AG Securities v Vaughan [1990]
Why is AG Securities v Vaughan [1990] significant?
- This case is particularly noteworthy as it contains elements in the relevant agreements and facts that might make us think about pretences or sham leases, and other “landlord” behaviour. - The case also helps us think about the difference between exclusive possession and separately the idea of exclusive occupation.
What occured in AG Securities v Vaughan [1990]?
- In this appeal the landlord, Agis Antoniades, had issued separate but identical agreements to a young man and his girlfriend.
- They were called William Robert Villiers and Sharon Bridger.
- The two agreements wee signed at the same time.
- The landlord knew the couple would be living as husband and wife.
- The property consisted of the top flat which comprised a bedroom, a sitting room with a bed-settee and fold up bed table, a kitchen and a bathroom.
- The agreements were expressed to be licences. - They stated that the Rent Acts did not apply.
- The licensor was trying to avoid granting exclusive possession, one of the cardinal or hallmark qualities of a lease.
- He did this by saying that at time to time he might invite other licensees into the flat.
- In due course the landlord, Agis Antoniades, served a notice to quit on the couple.
- At no point during their stay at the property did the landlord permit anyone else to use the flat.
- One of their friends did stay in the flat for a short time on the bed-settee.
However, there is no exclusive possession if that would defeat the purpose of the agreement, which case demonstrates this?
Westminster City Council v Clarke [1992] 2 A.C. 288
What was held in AG Securities v Vaughan [1990]?
An agreement which expresses the intention of both parties or one party to create a licence will create a tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of a tenancy.
A lease was found.
Therefore, what is this case to the exclusive possession understanding?
A nuanced point.
What occured in Westminster City Council v Clarke [1992] 2 A.C. 288?
- A council owning 31 single rooms, each with a bed and limited cooking facilities.
- Used as a hostel for homeless single men.
- Only intended to be for a temporary basis.
- This was significant in the agreement.
- A licence to occupy – signed by D.
- Document trying to show intention not to give the rights of a tenant to the C.
- Giving a lease would defeat the purpose of the agreement in this case.
- This is a nuanced point.
- Every case taken on its merit.
- Specific facts – be careful.
Berrisford v Mexfield Housing Co-op [2011] UKSC 52
Berrisford v Mexfield Housing Co-op [2011] UKSC 52
What does Berrisford v Mexfield Housing Co-op [2011] UKSC 52 concern?
This case involved a lease and a judicial consideration of the operation of S149(6) of the Law of Property Act 1925 and what has been called some “statutory magic.”
What occured in Berrisford v Mexfield Housing Co-op [2011] UKSC 52?
- Mrs Berrisford fell behind with her mortgage which had been taken out on her house, 17 Elton Avenue, - Her bank had set up a special “mortgage rescue scheme” for borrowers who had started to get into difficulty with their borrowing.
- In essence this scheme operated so that a mutual housing association, here called Mexfield Housing Co-operative Ltd, would buy the mortgaged properties from the individual borrowers who were suffering from financial difficulties.
- This is what happened in the case, so Mexfield, the housing association, bought the property from Mrs. Berrisford.
- The property was then let back to Mrs.
- Berrisford under the terms of a document that was entitled to an “occupancy agreement.”
What occured next in the facts, what happened to Mrs Berrisford?
- The occupancy agreement stipulated that Mrs. Berrisford agreed to take the property from month to month for a weekly rent. - The agreement also stipulated that the housing association could bring the agreement to an end only if the rent was in arrears.
- At all times Mrs. Berrisford also had to be a member of the housing association.
- This arrangement continued for “many years”.
- So Mrs. Berrisford was paying rent and had exclusive possession. She did not fall into arrears.
- Despite this and without relying on the arrears clause in the agreement (see below) the housing association gave Mrs. Berrisford a month’s notice to quit and issued possession proceedings.
At first instance, what was held and why?
- At first instance the judge made a possession order in the housing association’s favour. The Court of Appeal held that,
(1) a lease could not be created for an uncertain terms which meant the occupancy agreement had failed to grant a lease, and,
(2) that the effect of the agreement was in fact that there was a monthly periodic tenancy which could be terminated by service of one month’s notice to quit.
However, what did Lord Nueburger find in the HOL upon appeal?
- Lord Neuberger was then able to make use of s.149(6) LPA1925.
- This was because he thought that the agreement would give rise to a tenancy for life (prior to 1926).
- The effect of the section was that the agreement would be treated as a tenancy for a term of 90 years, determinable on Mrs. Berrisford’s death or in accordance with the agreement, i.e. clause five or six (see below).
- This meant that Mrs. Berrisford retained her tenancy of the property. - The housing association was not entitled to possession.
What were the judicial steps in Mexfeild?
Step 1 – Only Mrs Berrisford could determine the lease (as long as she kept paying rent)
Step 2 – Mrs Berrisford had a lease ‘for as long as the rent is paid’.
Step 3 – Section 149 of the Law of Property Act 1925 converts ‘leases for life’ into 90-year leases.
Regarding step 2, what was stated in Zimbler v Abrahams [1903] 1 KB 577
Zimbler v Abrahams [1903] 1 KB 577 holds that tenancies ‘for as long as the rent is paid’ are converted into leases for life. – support at this stage.
What is the rational behind step 3?
This is legal fiction, help import certainty, the courts doing their best to help the vulnerable.
Which later case distinguishes Mexfeild?
Southward Housing Co-operative Ltd v. Walker and others [2015] EWHC
Outline the case facts in Southward Housing Co-operative Ltd v. Walker and others [2015] EWHC,
- The claimant, Southward Housing Co-operative Ltd was a housing association.
- It granted Vicky Walker (and David Hay), who was the defendant, a tenancy.
- There was an agreement for the occupation of 8 Kimber Road, Wandsworth.
- This document was entitled “Tenancy Agreement”.
- This document stated that the agreement was for a weekly tenancy.
- It also provided that the claimant would only end the tenancy with a notice to quit on one of the grounds that was set out in the agreement.
- One of these grounds was the non-payment of rent.
- The usual happened, that is to say the defendant Vicky Walker got into financial difficulties and in consequence into arrears with her rent.
- As a result the claimant, the housing association served notice to quit.
- In due course they started proceedings for possession of the property.
What did the defendant argue in this case?
- The defendant sought to defend herself. She argued, inter alia, that the agreement was one of uncertain term which at common law was treated as a tenancy for life, and therefore, pursuant to s.149(6) LPA1925 took effect as a 90 year lease.
What did Hildyard J find in the judgement of this case?
- However, Hildyard, J held that in the instant case although there was an agreement that could not take effect as a tenancy, the general rule was that such an agreement was a lease for life which s.149(6) LPA1925 converted into a 90-year term.
- However, this outcome yielded to the plain contrary intention of the parties.
- Hildyard, J held that it had not been the intention of the parties that the defendant should be legally entitled to enjoy the premises for life.
- Accordingly the judge held that the agreement constituted a contractual licence taking effect between the two parties.
Hildyard, J first mentions the opinion of Lord Neuberger in Mexfield v Berrisford in his judgement, and distinguished by stating what?
Hildyard, J notes, “…it was not the intention of the parties that they should be legally entitled to enjoy the premises for life.”
- It is here we see a differentiation between the facts in the two cases.
- There had been no intention between the parties in this instant case to intend a lease for life.
- This meant that the uncertain term could not be saved.
- Ergo there was no lease for life.
You might ask yourself how many people do intend a lease for life?
If the answer is not many, then this might demonstrate how Southward has narrowed the effectiveness of Mexfield.
Bruton v. London and Quadrant Housing
Trust [1999] 3 WLR 150
Bruton v. London and Quadrant Housing
Trust [1999] 3 WLR 150
What does Bruton v. London and Quadrant Housing Trust [1999] 3 WLR 150 tess us?
Only people with a freehold/leasehold can carve out a lease from a freehold or grant a sub- lease from an existing lease.
For this case, what does Section 11 of the Landlord and Tenant
Act 1985 apply to?
Section 11 of the Landlord and Tenant
Act 1985, applies a duty of repair to
leases.
What occured in Bruton?
- In this case, the Bruton lease case.
- Council owned a block of flats, called oval house in Brixton.
- The council planned to demolish and rebuild the flats, there were delays, in the meantime, the council gave the housing trust, a charity which provided homeless accommodation, the right to use the property.
- The council only gave them a license, no disagreement on this point.
- In turn the housing trust created agreements for homeless people.
- Mr Bruton, one of the occupiers argued a lease to force the trust to repair oval house under S11 of the landlord and tenant act.
- To get access to the statutory protection, he would need to show he had a lease.
- The council accepted Mr Bruton had exclusive possession.
- They argued though that despite the exclusive possession there was no lease.
- Trying to undermine street v Mountford principles.
- But you cannot give away what you don’t have was said.
What did the council argue in Bruton?
Counsel for London and Quadrant argued that despite Mr Bruton having exclusive possession, there was no lease:
London and Quadrant was itself a licensee and had no proprietary right (estate) in the land. (You can’t give away what you don’t have.)
What is the latin phrase for the idea that you cannot give away what you do not have?
Nemo dat quod non habet – the idea that you cannot give what you do not have.
In this case, what is the main issue?
Leases are Normally Carved Out of Other Leases or Freehold.
The Trust argued that they had no legal estate from which to grant a lease.
What was held by Lord Hoffman in Bruton?
- In his opinion in the House of Lords Lord Hoffmann (and his brethren) said that Mr Bruton was in fact a tenant.
- This was because in the House of Lords view the agreement between Mr Bruton and the Trust fulfilled all the criteria to create a tenancy.
- The agreement conferred exclusive possession.
- This exclusive possession was also for a period and in return for rent.
- So, in others words, the agreement fulfilled all of the hallmarks of a lease that Lord Templeman described in Street v. Mountford (“My Lords, there is no doubt that the traditional distinction between a tenancy and a licence of land lay in the grant of land for a term at a rent with exclusive possession.”)
The House of Lords, somewhat controversially, went on to say what?
The House of Lords, somewhat controversially, went on to say that it did not matter that the Trust held no legal estate in the property from which it granted a lease.
So this means with a Bruton lease you do not need to carve this species of lease from an estate, such as a freehold or leasehold estate.
These points were neatly summarised by another law lord, Lord Hobhouse, what did he say?
He said that Mr. Bruton’s case depended on him:
“…establishing that his agreement with the Housing Trust has the legal effect of creating a relationship of tenant and landlord between them. That is all. It does not depend upon his establishing a proprietary title good against all the world or against the Council. It is not necessary for him to show that the Council had conveyed a legal estate to the Housing Trust.”
So, what is a Bruston lease?
Bruton lease – ‘A non-estate lease’
Overall, what was the Process in Bruton?
Lambeth Council has freehold and grants a license London and Quadrant has a license and lets Mr Bruton live in the property Mr Bruton argues successfully that he has a lease.
Successful argument – access to repair provisions in S11.
Seems anomalous.
Can this non estate lease be enforced against third parties in a way a normal lease can be or a tradition lease? which case told us this?
Kay v. London Borough Lambeth [2006] 2 W.L.R. 570
What did Kay v. London Borough Lambeth [2006] 2 W.L.R. 570 tell us?
Mr Bruton, and the residents of Oval House, did not have a binding lease vis a vis Lambeth Council.
That type of tenancy is enforceable against the grantor of the tenancy, the housing trust in this case, but it would not be binding against the council, the original estate owner.
This weakens the Bruton lease and the relationship the Bruton leaser has with the freeholder.
Which article provides academic commentary/ criticism on the Bruton lease?
Bright Article
Bright, ‘Leases, Exclusive Possession, And Estates’ [2000] 116 LQR 7
- Highlights that the Bruton lease does not give good title against the world.
- Enforceability problems.
Which article suggests the Bruton lease was a mere contract?
Pawlowski Article
Pawlowski, ‘Occupational Rights in Leasehold Law: Time for Rationalisation’ [2002] Conv. 550
- The nature was a contract.
- This relationship for Pawlowski was this because there were no rights in land.
- Granted from someone had a licence, can’t give away what you don’t own.
- Is a Bruton lease just a contract, not binding third parties.
Formalities – Deeds and Leases
Formalities – Deeds and Leases
What did Birks say on Formality?
Birks – formality: traditional rule, a deed must be signed (witnessed), sealed (seal of intention) and delivered.
By delivered we mean when it is handed over there is intention for it to take legal affect.
Leases Need a Deed, does this come up in examination?
LEASES ALWAYS COME UP, A NICE WAY TO NUONCE A PROBLEM QUESTION IS AROUND THIS ASPECT OF TIME, THERE WILL BE A POINT WHERE YOU ARE TOLD HOW LONG A LEASE IS FOR AND IT IS IMPORTANT.
Leases need a deed unless what?
Leases need a deed unless for 3 years or less
Under what sections of the LPA does this fall?
Law of Property Act 1925; S52 & S54.
What do shorter term leases therefore require?
SHORTER LEASES REQUIRE LESS FORMALITY
– 3 YEARS OR LESS.
Lack of formality for short leases, don’t need registering always
Why is registration required as a formality for leases over three years long?
3, 5 and 7 years – registration required for validity.
Long leases need registering for protection.
If formalities are not adhered too, what can step in?
- If formalities are not adhered too, equity can step in.
- Where something goes wrong, we might say the agreement was not signed, sealed or delivered.
- Equity can step in to give you a lease
In what case was an equitable lease found?
Walsh v. Lonsdale (1882) 21 Ch D 9
What does Walsh v. Lonsdale (1882) 21 Ch D 9 concern?
The case is famous for the discussion of equitable leases when formalities have not been followed to create a lease at law. In this case the Court of Appeal said there was an equitable lease.
What occured in Walsh v. Lonsdale (1882) 21 Ch D 9?
- You will remember that the claimant in the case Walsh had been granted a lease for a mill by the defendant (Lonsdale) for a period of seven years.
- Rent was to be paid quarterly in arrears.
- A years rent was payable in advance.
- Unfortunately (or perhaps fortunately for us!) the respective parties (Walsh & Lonsdale) did not execute a deed of grant for the tenancy (a formal requirement required back in 1882).
- However the claimant (Walsh) did move in to the mill and started to pay rent in quarterly arrears, Lonsdale also claimed for the year long rent in advance.
- Walsh would not pay.
So the question before the Court of Appeal was whether or not the lease was legal.
To be legal the lease had to be created by a deed. This was not done as we have seen.
What was held in Walsh v. Lonsdale (1882) 21 Ch D 9?
- The Court of Appeal held that there was an equitable lease. This judgment came out just after the Judicature Acts 1873-1875.
- The Court of Appeal were able to show how common law and equity were now fused into one system and as “equity looks on that as done which ought to be done” the Court of Appeal (Jessel MR) said:
“The tenant holds…under the same terms in equity as though the lease had been granted… He cannot complain of the exercise by the landlord of the same rights as the landlord would have had if a lease had been granted.”
What did this decision mean in practice?
All of this meant that the landlord could pursue Walsh (the tenant) for the money that he owed.
Relationship Between Landlord and Tenant
Relationship Between Landlord and Tenant
Covenants and implied covenants impacting on the relationship between the landlord and tenant, what is an example of an express covenant?
Covenants are Express Contractual Terms
Lessor (landlord)
Imposes covenants (notably rent)
Lessee (tenant)
Express contractual term – rent.
In return – exclusive possession.
There is minimal protection from implied covenants for tenants, which authority demonstrates this?
Southwark L B C v. Mills [1999] 4 All ER 449
What occured in Southwark L B C v. Mills [1999] 4 All ER 449 and what was held?
- More than one tenant making a claim in the case.
- Quiet enjoyment, is it implied into a contract?
- Tenant took a tenancy of the middle floor flat in a house which the landlord council had converted into three dwellings.
- Tenant complained to council that the noise by her neighbours, because of no sound insulation, seriously interfered with her enjoyment of her flat, in her view her quiet enjoyment and the council refused to make action to better this, so she brought a claim.
- What did quiet enjoyment mean?
- Lords – there is a right to quiet enjoyment, but this is a minimal right, basically, not to be harassed or bothered by the landlord, her or himself, it is not a right to ‘real quiet’.
Implied repair covenants are minimal, which authority demonstrtaes this?
Lee v. Leeds City Council [2002] 1 WLR 1488
What does Lee v. Leeds City Council [2002] 1 WLR 1488 concern?
The obligation to repair.
What occured in Lee v. Leeds City Council [2002] 1 WLR 1488?
- Tenants who have mould in their home.
- Question – what was the obligation to repair here?
- Held, these did not extend to putting and keeping the structure in good habitable repair.
- Obligation of repair did not extend to keeping the structure in good habitable repair.
- S13 LLTA 1985
- In essence, the mould stays.
In consideration to the landlord tenant relationship, we must also consider statutory interference in the landlord/tenant relationship.
In consideration to the landlord tenant relationship, we must also consider statutory interference in the landlord/tenant relationship.
Protection for tenants, for repair, what is the statute?
Repair: Landlord and Tenant Act 1985, S11
The Rent Acts 1960 – 1977, what dID these provide previously?
- These gave you a right as a tenant to go to a tribunal, to get an objectively fair rent.
- If rent was too high, they could lower it.
- This cannot happen anymore; rents are now capped.
The Housing Act 1980, how did this statute affect rent?
- This left rent more or less to the market.
- Landlords could set rents on their own accord.
- Greenbelt provisions were also introduced here.
The Localism Act 2011, what did this act allow?
- S184
- Old system, difficult for tenants to get their money back.
- Introduced new deposit scheme to protect tenants.
- Onus switched to the landlord to say why money should be withheld.
Some of these covenants can potentially be breached, how can breach be remedied?
Court enforcement,
Breach can be remedied e.g., forcing payment of rent
Protection from Eviction Act 1977 – example.
- Court enforcement if in breach.
- Landlords may also get relief.
REFORMS x
REFORMS x
What was the first reform?
Commonhold and Leasehold Reform Act 2002.
What did this reform introduce?
2002 – commonhold
- Introduced a new type of property or land ownership structure.
- Alternative to long leasehold system
- In common hold each flat owner becomes known as a unit owner, they have 2 interests as a unit owner, first, an interest in their own individual flat and secondly, a collective interest as a member of a residence association.
- This residence association which owns and manages the shared elements of the property on behalf of the residents.
- Commonhold is a footnote in our course.
- Exists more commonly in other jurisdictions, but not really in the UK and Wales.
What is the more recent reform we are experiencing?
Leasehold and Freehold Reform Act 2024
Why was the reform introduced?
- Had royal assent, not all provisions enforced.
- Statutory instruments needed.
- Born out of the following reasons below,
- Lots of issues around newbuild estates – poor clauses in these newbuild estates, ended up with an agreement which got them on a hook for thousands of pounds a year – a rent change.
- Other problem – cladding, fire risks, obligations fall on leaseholders to remove cladding, people go bankrupt because they could not afford it.
What did the reform look to do?
- Looked at the total abolition of leasehold going fundamentally against how we design our estates in this country.
- Bans the granting of new leasehold housing, prevents rent charge.
- Makes it cheaper and easier for leaseholders to extend their lease and buy their freehold.
- Act increases standard lease expectant term to 999 years.
(Could come in to nuance certain term) - New legislation has extended leasehold to what is tantamount to absolute ownership
