Lecture 4 – Land Law
To be a lease, you must have exclusive possession for a term. Whatever the parties call
the agreement is irrelevant. In order to have property right, it must be created using the
correct formalities.
I) A term certain:
A lease must have a fixed start date and certain duration. See Lace v Chantler. The test
was set: can you say at the outset of the agreement with certainty how long it is going to
last? If it is impossible to say how long the tenancy will last, then not a term certain. The
parties could have made the term certain if it had been for the duration of 90 years, or
the War, whichever was the earliest. That would have made it a fixed and certain
duration.
Periodic tenancies, where the term rolls on, are trickier. PT are certain because each
period in its own right is certain. A weekly tenancy is certain for example, because
period of a week, even if it rolls on. But important that the ability of the parties to
determine the PT must also be certain.
See Prudential Assurance case: strip of land in front of building. Periodic annual tenancy,
see slide. HOL says: could you say at the outset hold long it was going to last? No. If the
term itself is void, then potentially the whole agreement is void.
II) Periodic tenancies: why not uncertain?
“A tenancy from year to year is saved from being uncertain because each party has power
by notice to determine at the end of any year. The term continues until determined as if
both parties made a new agreement at the end of each year for a new term for the ensuing
year”.
Mexfield v Berrisford – Supreme Court:
Mrs B owns her house, in trouble with mortgage, rather than lender taking her
home away, they buy the property from her, and rents it back to her on the basis of
a monthly tenancy. Clause 6 restricts Medfield’s ability to determine the tenancy
ONLY in her failure to pay rent, failure to perform provisions of the agreement, if
the member ceases to be a member of the Association, if the Association is
dissolved. Can you say at the outset how long the lease will last? No. When would
any of these things happen? Inherently uncertain. She fails to pay rent. They serve a
notice. They rely on Prudential and say uncertain term, therefore the entire
agreement is void, so you should employ a standard monthly rental contract. Mrs
B’s counsel argued ROL, agreement for an uncertain term can’t create a valid
tenancy.
- 1) It was a long established principle of law that an agreement for an
uncertain term could not be a valid tenancy, Lace v Chantler [1944] K.B.
368 and Prudential Assurance Co Ltd v London Residuary Body [1992] 2 A.C.
To be a lease, you must have exclusive possession for a term. Whatever the parties call
the agreement is irrelevant. In order to have property right, it must be created using the
correct formalities.
I) A term certain:
A lease must have a fixed start date and certain duration. See Lace v Chantler. The test
was set: can you say at the outset of the agreement with certainty how long it is going to
last? If it is impossible to say how long the tenancy will last, then not a term certain. The
parties could have made the term certain if it had been for the duration of 90 years, or
the War, whichever was the earliest. That would have made it a fixed and certain
duration.
Periodic tenancies, where the term rolls on, are trickier. PT are certain because each
period in its own right is certain. A weekly tenancy is certain for example, because
period of a week, even if it rolls on. But important that the ability of the parties to
determine the PT must also be certain.
See Prudential Assurance case: strip of land in front of building. Periodic annual tenancy,
see slide. HOL says: could you say at the outset hold long it was going to last? No. If the
term itself is void, then potentially the whole agreement is void.
II) Periodic tenancies: why not uncertain?
“A tenancy from year to year is saved from being uncertain because each party has power
by notice to determine at the end of any year. The term continues until determined as if
both parties made a new agreement at the end of each year for a new term for the ensuing
year”.
Mexfield v Berrisford – Supreme Court:
Mrs B owns her house, in trouble with mortgage, rather than lender taking her
home away, they buy the property from her, and rents it back to her on the basis of
a monthly tenancy. Clause 6 restricts Medfield’s ability to determine the tenancy
ONLY in her failure to pay rent, failure to perform provisions of the agreement, if
the member ceases to be a member of the Association, if the Association is
dissolved. Can you say at the outset how long the lease will last? No. When would
any of these things happen? Inherently uncertain. She fails to pay rent. They serve a
notice. They rely on Prudential and say uncertain term, therefore the entire
agreement is void, so you should employ a standard monthly rental contract. Mrs
B’s counsel argued ROL, agreement for an uncertain term can’t create a valid
tenancy.
- 1) It was a long established principle of law that an agreement for an
uncertain term could not be a valid tenancy, Lace v Chantler [1944] K.B.
368 and Prudential Assurance Co Ltd v London Residuary Body [1992] 2 A.C.
