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Certainty of leasehold terms
Commercial Law (School of Oriental and African Studies)
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Law Quarterly Review
1993
Certainty of leasehold terms
Peter Sparkes
Subject: Landlord and tenant
Keywords: Implied terms; Leases; Uncertainty
Cases: Lace v Chandler [1944] K.B. 368 (CA)
Prudential Assurance Co Ltd v London Residuary Body [1992] 2 A.C. 386 (HL)
*L.Q.R. 93 IN 1859 the Privy Council had to consider1 the effect of a lease which was to continue
until a month's notice had been served after the demised land was needed for the extension of a
road. The lease was held to be bad for uncertainty. It was not, as Lord Chelmsford said, “a term for
years, nor from year to year, nor a year certain, nor for a month, nor for any other certain time.” 2 The
certainty point was so obvious that the decision was reached without the need for any reference to
authority. An almost identical term has been considered recently in Prudential Assurance Co. Ltd. v.
London Residuary Body. 3 This time a lease granted in 1930 of land fronting Walworth Road in
London was to last until the land was required for road widening. The House of Lords struck down the
validity of the lease, which they held to be uncertain in duration, but only at the expense of discarding
a number of Court of Appeal decisions on certainty in periodic tenancies.4
The argument of this article falls naturally into three sections. In the first the technical excellence of
the main speech by Lord Templeman will be demonstrated. The second will consider whether any
escape routes were available for avoidance of the consequences of the technical rule, if it produced
an injustice. Defects in the 1925 legislation will be exposed. The third question, and that of
outstanding interest, is whether there was an individual injustice which high-lighted a general failing of
the certainty principle, as was suggested by a majority of the House led by Lord Browne-Wilkinson;
Lord Templeman who delivered the main speech appeared to feel no sense of injustice in the result.
I. THE PROSPECTIVE TEST OF CERTAINTY FOR LEASES
Fixed term tenancies
Lord Templeman's speech emphasises that one test of certainty must be applied for leases and
tenancies of all kinds.5 Almost all authority favoured the test of prospective certainty for a fixed term
tenancy.6 A fixed term tenancy is only valid if the term is certain in its *L.Q.R. 94 maximum duration7
at the outset. Prudential Assurance as decided in the House of Lords is a pure application of that
principle. A fixed term tenancy was granted in 1930 to continue until land was required for
road-widening. It was impossible to tell in 1930 how many years would elapse before the road was
widened. Hence it was void, since it was a tenancy with no fixed term.
It is conventional for opponents of the test of certainty to suggest that the rule of certainty was an
invention of Lord Greene M.R. when called upon to decide Lace v. Chantler in 1944,8 or at least that
the rule was then not clearly established so that the decision was revolutionary in character. Lord
Templeman's speech citing Coke, Blackstone, and Say v. Smith 9 demonstrated conclusively the
traditional orthodoxy of the Lace rule of certainty.10
The Bishop of Bath's case11 contains a statement that the continuance of a lease for years ought to
be certain in one of four ways: either by express naming of years; or by reference to a certainty; or by
reducing it to certainty by matter ex post facto; or by construction of law by express limitation. The
possibility that certainty might be established ex post facto suggests that certainty at the time of
termination is sufficient; however, closer reading shows this to be a misconception. The example
given in the Bishop of Bath's case is of a lease “from the Feast of St. Michael for as many years as
I.S. shall name” which is to be taken as a valid lease from the time that I.S. names a certain term,
provided he does so within the lifetime of the lessor. The report adds “so it is of all leases to
commence on a condition precedent.” 12 Hence a lease uncertain at the time of its grant is valid ex
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post facto if it is reduced to certainty before the term begins. This explains why modern formulations
refer to certainty at the time the lease takes effect, rather than at the earlier time when the lease is
granted.13
Lace v. Chantler thus represents a consummation of well-established learning rather than a startling
modern departure, even if some first instance decisions had lost the old learning.14 In Lace v. *L.Q.R.
95 Chantler, a tenancy “furnished for duration,” that is for the duration of the Second World War, was
held to be uncertain. “A term created by a leasehold tenancy agreement must be expressed either
with certainty and specifically or by reference to something which can, at the time when the lease
takes effect, be looked to as a certain ascertainment of what the term is meant to be.”15
The court expressly rejected the argument that certainty at the time of termination was sufficient.16
The term must be fixed in advance. It is worth stressing this point, because it was apparently
misapprehended by Fox L.J. in Ashburn Anstalt v. Arnold. 17 Fox L.J. said that the end of the war,
which determined the tenancy in Lace, might be hard to pinpoint. “The vice of uncertainty in relation to
the duration of a term is that the parties do not know where they stand.” 18 Those statements, now
overruled,19 were clearly inconsistent with the Lace v. Chantler meaning of certainty. Hence a
rent-free lease of a shop until the landlord serves a notice that it is ready to proceed with
redevelopment of the site, as in Ashburn Anstalt, is not valid simply because there is a definitive end
to the term. It is void because one cannot say in advance when the landlord will be able to serve the
notice.20 Lord Greene M.R. stated explicitly in Lace that the difficulty was not in deciding when the war
ended; the problem was that no period of years was laid down at the outset.21 So too in Prudential
one could tell with certainty when the land was required for road-widening. The length of the term
would be certain in retrospect. But that was not enough to make the term enforceable, since it was
impossible to know in advance for how long the lease would last.
Consequences of the failure of an uncertain fixed term
On the assumption that the fixed term created in Prudential Assurance Co. Ltd. v. London Residuary
Body, 22 was void for uncertainty, both parties accepted that a periodic tenancy was implied from the
payment and acceptance of rent. Rent calculated at the yearly rate of £30 was payable quarterly, so
that a yearly tenancy arose. Blackstone's Commentaries 23 recognised that a periodic tenancy should
be implied on the failure of a lease for uncertainty; previously the courts had implied a tenancy at will,
but by the time of Blackstone it was a yearly tenancy that was implied. In Prudential the invalid lease
*L.Q.R. 96 showed the intention of the parties that the tenant should not have to give up his tenancy
until the land was required for the widening of Walworth Road. Scott L.J. in the Court of Appeal
considered that “the implied tenancy from year to year should … incorporate a corresponding fetter
on the right of the landlord to terminate that tenancy.” 24 The House of Lords reversed this ruling; they
held that the yearly tenancy could be terminated by the landlord although the landlord did not require
the site for road-widening. With regret this decision must be seen to be correct. As Lord Templeman
observed25 the same argument was available and rejected in Lace v. Chantler; a condition in the rent
book that the property was “furnished for duration” was not imported into the weekly tenancy so as to
prevent termination by the landlord while the war was still on.26 Lord Templeman was right to refuse to
imply a term restricting termination of the periodic tenancy.
Rule of certainty for periodic tenancies
Since Scott L.J. implied a restriction on termination of the periodic tenancy when considering
Prudential in the Court of Appeal the effect was to bring the case within the principle of Re Midland
Railway Co.'s Agreement. 27 That case had denied the need for a periodic tenancy to display
prospective certainty of term. Order has been restored by Lord Templeman's speech insisting that the
Lace v. Chantler test of certainty applies to all tenancies, including periodic terms. It is necessary to
pause briefly to recall how the Court of Appeal became so badly derailed in the Midland Railway
case.
The Court of Appeal accepted in Re Midland Railway Co.'s Agreement the validity of a periodic
tenancy which could only be terminated by the landlord when an uncertain contingency occurred. A
periodic tenancy of a mere 100 square yards of railway land, granted in 1920, contained a term which
prevented the landlord from serving notice unless the land was required for the purposes of the
railway. It was not possible to tell in advance when the land would be required for the landlord's
business. It was not required at the time of the dispute in 1971. Since the maximum duration could
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not be ascertained prospectively, the tenancy did not satisfy the Lace v. Chantler 28 test. Nevertheless
it was held to be sufficiently certain. When the landlord *L.Q.R. 97 came to serve notice the court
could decide whether or not the period of the lease had come to an end. This retrospective certainty
sufficed. Russell L.J. said that the applicability of the certainty rule to periodic tenancies was not
under consideration in Lace v. Chantler. 29
Lord Templeman's speech in Prudential disapproving the Midland Railway case has restored the
traditional learning. The maximum duration of the term created by a periodic tenancy is always
uncertain at the outset. “The simple statement of the law that the maximum duration of a term must
be certainly known in advance of its taking effect cannot therefore have direct reference to periodic
tenancies.”30 Any named period might be surpassed by a periodic tenancy; a yearly or weekly tenancy
might outlast a term of 50 years.31 It does not follow that the term is uncertain in duration. The
conventional wisdom32 is that an element of certainty can be found in a periodic tenancy by ensuring
that the maximum commitment of each party can be fixed at any moment by service of notice. As
Professor Gray has said “the periodic tenancy passes the test of certain maximum duration in the
sense that each occupational unit of time, as it is added to the preceding unit of time, is itself of strictly
defined duration.”33
The decision in Midland Railway was reached by the Court of Appeal because there was no authority
for the application of a test of prospective certainty to a periodic tenancy, and so to apply it would be
an extension of a doctrine of land law so as to defeat a clearly expressed bargain.34 Lord Templeman
has devastated that conclusion; in fact there was ample authority for the application of a test of
prospective certainty to a periodic tenancy.
Older authorities were directed primarily to considering which terms of a tenancy were repugnant to
its character as a periodic tenancy. Since in many older cases the terms were rejected as repugnant it
was never necessary to consider the underlying test of certainty which would also have rendered the
terms unenforceable. Lord Templeman appears to accept a relaxation of the rule for repugnancy
achieved in Breams Property Investment Co. Ltd. v. Stroulger 35 for he said36 that a lease can be
made from year to year subject to a fetter on the right of the landlord to determine the lease before
the expiry of *L.Q.R. 98 five years unless the war ends; this creates a determinable term of five
years. Hence the issue is certainty rather than repugnancy.
The first case relied on by Lord Templeman was Doe d. Warner v. Browne. 37 It considered the effect
at common law of an agreement for a lease which provided that the landlord would not turn out the
tenant so long as the tenant paid a certain rent. This could not take effect at law as a lease for life
because of want of formalities. A yearly tenancy was the result, determinable by regular notice to quit.
38
Lord Ellenborough C.J. said a term was repugnant at common law if it enabled only the tenant to
terminate. This dictum has tended to be restricted in the most recent case-law so that a clause is only
repugnant if it prevents one party from ever terminating the tenancy39 ; it is doubtful whether Lord
Ellenborough C.J. intended that restriction. Since the clause was repugnant at common law,
uncertainty did not arise for discussion. In equity it did arise, because the want of for-mality was not a
bar to enforcement in equity. In Chancery the arrangement was enforceable as a lease for life
determinable by the tenant40 or as an assignment of the landlord's leasehold term.41 It could not be
enforced directly as a lease until the tenant ceased paying the rent; equity merely followed the law in
requiring certainty.
Overwhelming support is to be found in Cheshire Lines Committee v. Lewis & Co. 42 It is so similar to
the Midland case that the converse results were puzzling, and effectively dictated that one or the
other had to be overruled.43 A weekly tenancy contained a provision that “You may have the premises
as per agreement until the railway company require to pull them down.” In allowing the landlord to
terminate this agreement, Brett L.J. said44 :
“I think the case of Browne v. Warner is directly in point to show that the stipulation, if interpreted so
as to diminish the right to give a week's notice, is repugnant and inconsistent with that right, and so
void … I know of no such thing as a tenancy from week to week not pure and simple, but only from
week to week, until something happens to enlarge the term.”
Brett L.J.'s opinion on repugnancy was obiter, so that it was technically open to the later Court of
Appeal in Re Midland Railway to *L.Q.R. 99 ignore it.45 It appears, however, that Russell L.J.
accepted what Brett L.J. had said as binding, but sought to distinguish it. The ground of distinction
adopted by Russell L.J. in Midland Railway was that Cheshire Lines was a decision on repugnancy
and not on uncertainty. In no case cited to Russell L.J. “was it held that a curb on the power to
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determine a periodic tenancy infringed the principle that an estate of leasehold was to be effective
must be certain in its maximum duration.”46 The decision on repugnancy was taken to be overruled by
Breams Property Investment Co. Ltd. v. Stroulger. 47 Again the clause was repugnant or inconsistent
in two senses, that is both with the theory that the periodic tenancy lasted only for one period at a
time, and also with the principle that a lease must be certain in duration. Since the clause was invalid
in the first sense, it was unnecessary for Brett L.J. to consider the issue of certainty that arose if the
lease as drawn was valid; a requirement of certainty was assumed.
Russell L.J.'s reasoning in Re Midland Railway Co.'s Agreement in relation to certainty contained a
circularity. The stages of his argument relating to certainty were as follows48 :
1. Certainty was required for a fixed term tenancy.
2. Cases on periodic tenancies referred to repugnancy.
3. There was no decision that a periodic tenancy had to be certain.
The stages of his argument in relation to repugnancy were these49 :
1. A curb of three years can be placed on the termination of a periodic tenancy. The curb could have
been for any fixed period of years.
2. Certainty is not in issue for periodic tenancies.
3. Therefore a restriction of uncertain duration is not repugnant, unless it is a total exclusion of
termination by one party.
Reduced to this skeleton form it can be seen that point 2 in each argument is merely an assumption
that the alternative ground is the proper heading for discussion. The restriction is not repugnant
because one ought to discuss certainty. It is not uncertain because the cases speak of repugnancy.
Russell L.J. managed in this way to finesse away the hostile comments of Brett L.J. in Cheshire Lines
Committee v. Lewis & Co. 50 and to evade the underlying issue of cer *L.Q.R. 100 tainty. A similar
circular argument starting from the assumption of invalidity drawn in Doe d. Browne v. Warner would
have reached exactly the opposite conclusion. The reasoning did not provide a sound ground for
distinguishing Lace v. Chantler, which was a clear binding authority that certainty was required for a
lease. It was right for Lord Templeman to overrule Midland Railway. 51 The surprise is that it has stood
unchallenged for so long.
Periodic and fixed terms assimilated
Re Midland Railway Co.'s Agreement represented a wrong turning in certainty. It drew a distinction
between periodic tenancies and other tenancies which has proved impossible to maintain. Which for
example was Ashburn Anstalt v. Arnold? Fox L.J. said it was a periodic tenancy or at least was
analogous to a periodic tenancy.52 But there was no periodic formula and it seems more natural to
treat it as a fixed term, as did Lord Templeman.53 Interpreted in this way, Ashburn and subsequent
cases created a surreptitious attack on the principle of certainty for some fixed term tenancies. It led
to a very abstruse jurisprudence with attempts to reconcile irreconcilable decisions on artificial
grounds.54
The only satisfactory solution was to have one rule of certainty for all leases. The decision of the
House of Lords in Prudential Assurance Co. Ltd. v. London Residuary Body is welcome precisely
because a consistent doctrine has been applied to all leases. If fixed term and periodic tenancies are
not distinguishable, there were three logical possibilities: to escape the certainty rule, to abandon
certainty for all leases, or to maintain the prospective certainty rule for all tenancies.
II. ESCAPE FROM UNCERTAINTY
One difficulty facing the House of Lords in Prudential Assurance Co. Ltd. v. London Residuary Body 55
was the requirement, introduced in 1925, that a lease should take the form of a term of years
absolute. Was the purported lease in Prudential for a term of years absolute? If it fell outside that
definition it could not be a legal lease after 1925.56 Could it then be saved in equity? Or did the 1925
legislation prohibit non-absolute leases thus reinforcing the certainty requirement? Pru *L.Q.R. 101
dential shows that the lease was void as a non-absolute term, so that it did not fit comfortably into the
structure of the 1925 legislation.
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The 1925 legislation adopted a masterful solution to the twin difficulties of Victorian property law,
which were first the divisibility of legal ownership and secondly unsaleability created by equitable
interests. Freehold status was reserved for absolute ownership rights. Other uncertain interests were
parcelled off as equitable and over-reachable interests. No great harm was done to occupiers
because the occupier would generally be the tenant for life entitled to make decisions about sale.
Leases remained as freestanding derivative ownership rights. It was therefore essential to distinguish
in marginal cases between terms of years absolute and overreachable interests. Just that is the
function of the lease for life provisions, which divide commercial and non-commercial leases for life,
and re-jig commercial leases for life as legal terms of years absolute.57
This structure prevents enforcement of a lease for an uncertain period. A lease until land is required
for road-widening does not have a fixed maximum term, and it has to be reworked either to give it a
fixed maximum term or to make a determinable beneficial interest. If the result in Prudential was
unfortunate, as Lord Browne-Wilkinson and two other Law Lords thought, it is appropriate to consider
whether conventional property law provided any escape route from the consequences of the certainty
rule.
The need for a term of years absolute
The division between freestanding legal estates and overreachable interests is drawn according to
the presence or absence of a term of years absolute. A legal lease must be a term of years absolute.
58
The definition section of the Law of Property Act 1925,59 when stripped of features irrelevant for
present purposes, defines the term of years absolute to be “a term of years … either certain or liable
to determination” in various specified ways, such as notice and re-entry. Few leases are certain in the
sense used in this definition, that is a lease which cannot be cut short of its maximum duration. The
essential concept is of a maximum term of years which can then be cut short. Taking the whole
careful definition it seems very odd that the Law of Property Act 1925 did not refer to an uncertain
term if this was a real possibility, since the Act does refer to all conceivable means of determining
leases within a fixed maximum duration. The expression “term of years” is defined to include “a term
for less than a year, or *L.Q.R. 102 for a year or years and a fraction of a year or from year to year.”60
This suggests that the lease must be for a known number of years. If the maximum duration of the
term must be measured in time, the statutory definition, Lace v. Chantler 61 and Prudential Assurance
62
fit perfectly together.
A tenancy for the duration of the war is uncertain and is not a term of years. Similarly the “term”
recognised in Ashburn Anstalt v. Arnold. 63 which was to last until the landlord served a certificate that
it was ready to proceed with redevelopment, was not a term of years absolute. In retrospect the term
was fixed in years; in prospect it was not a term of years. Similarly the “term” in Canadian Imperial
Bank of Commerce v. Bello, 64 to continue until a builder was paid for work done to the property, was
not a term of years absolute. There is no number of years, no period, nothing but an interest for an
unknown period of time. This analysis was adopted by Lord Templeman in Prudential Assurance. He
observed that the term granted until the land was required for road widening did not fall within that
statutory definition of the term of years absolute. Thus the role of certainty and the requirement that a
lease take the form of a term of years absolute were aligned.65
How are periodic tenancies fitted into this framework? An ordinary yearly tenancy is expressly
included as a term of years absolute. A weekly or monthly tenancy can clearly operate as a legal
estate, since fractional interests are included.66 What of periodic tenancies incorporating a restriction
on termination? The only restrictions recognised as valid by Lord Templeman were restrictions of
fixed maximum duration. Breams Property Investment Co. Ltd. v. Stroulger, 67 for example,
recognised the validity of a quarterly tenancy that could not be terminated by the landlord for three
years; Scott L.J.68 expressly decided that this was a term of years absolute. Lord Templeman
undoubtedly agreed.
Earlier cases had recognised restrictions attached to a periodic tenancy of uncertain duration. Even if
such leases were certain, they did not constitute terms of years absolute, since they lack a fixed
maximum duration. Jessel M.R. recognised as much in Ex p. Voisey *L.Q.R. 103 when he said that a
monthly tenancy which could not be terminated by the borrower-landlord while in default was “not
even a lease of years, because we do not know how long it will last.”69 The tenancy considered by the
Court of Appeal in Re Midland Railway Co.'s Agreement, 70 from half-year to half-year but not to be
terminated by the landlord until required for the purposes of the landlord's business, was not a term of
years absolute as it stood. The decision was hopelessly flawed by this technical oversight. It was
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inevitable that Lord Templeman would strike down the tenancy in Prudential Assurance. Even if it had
passed the test of certainty, it would not have been a lease because it did not create a term of years
absolute. The decision in Midland Railway was erroneous on this quite separate ground.
An equitable term of years non-absolute?
It might be argued that a non-absolute term should be treated as an equitable lease for an uncertain
term. Lord Templeman did not consider this possibility, which shows plainly his rejection of this
unorthodox solution. No distinction is drawn in the cases between common law rules of certainty and
equitable rules. On certainty, equity follows the law.
The role of equity is to rescue leases which fail at common law because they are informal.71 It is not,
however, possible to use equitable doctrine to convert an agreement for an uncertain term into an
equitable lease of uncertain duration. The existence of an equitable lease is dependent upon specific
performance. Enforcement of a contract for a term which is uncertain would create a legal lease
equally uncertain in term. The decision in Browne v. Warner 72 did not allow a tenant to occupy at a
fixed rent for an indefinite period, but only for the remainder of the landlord's reversionary interest. If
the same terms had been agreed by a freehold owner, it appears that there would be a lease for life.
Equity would not have enforced directly an arrangement for occupation for as long as the tenant
wished, which was uncertain. Brett L.J. observed in Cheshire Lines Committee v. Lewis & Co. 73 that
specific performance could not resolve an issue of *L.Q.R. 104 uncertainty because the same
question of repugnancy arose after specific performance.
Denning L.J. suggested in Wallis v. Semark 74 that equity might be used to loosen the common law
restrictions on certainty in a periodic tenancy. A tenancy was to be terminable by the tenant by one
month's notice and by the landlord by two years' notice. Denning L.J. accepted the common law rule
that prohibited a longer period of notice than the period of the tenancy,75 but considered that
liberalisation was possible in equity. Equity is only more liberal in allowing the enforcement of leases
without the necessary legal formalities. If a term is repugnant or uncertain, the grant of specific
performance could be of no assistance. Specific performance of an agreement to create an uncertain
term will create a legal lease of uncertain duration.
It is noteworthy that Lord Browne-Wilkinson, who expressed disquiet at the result in Prudential, was
not drawn to follow Denning L.J.'s heresy. Rather the speech of Lord Templeman aligned the rules for
certainty of term and the rule for recognition of a term of years absolute.76 This denied the possibility
of an equitable term of years non-absolute, which would have been a completely novel form of
equitable interest. The reports of Midland Railway 77 and its children do not indicate that uncertain
leases were equitable. Authority is overwhelmingly against the possibility of an equitable term of
years non-absolute.
Escape from uncertainty 1: a long determinable term
Provided the maximum duration is fixed, a lease may provide for earlier termination. This suggests
one method of escaping from uncertainty. A lease of uncertain length could be treated as a lease for
a term of long duration terminable on the occurrence of the event which limited the original term.78 In
Great Northern Railway Co. v. Arnold 79 Rowlatt J. interpreted a lease for the duration of the Great
War as a lease for 999 years, terminable on the cessation of the war. Lord Greene M.R. in the later,
similar, case of Lace v. Chantler expressed some unease about this decision and allowed the result
of *L.Q.R. 105 the case to stand only because of the definite undertaking by the landlord not to serve
notice during the war.80 The artificiality involved in the selection of 999 years indicates the unsound
nature of the decision; why was a term of 999 years adopted, rather than 99 years, or the more
optimistic period of 10 years adopted by statute towards the end of the second war?81 Statute
assumes that 90 years is long enough to cover a life.82 But many events are quite uncertain. Scott L.J.
provided the Court of Appeal in Prudential Assurance with the brilliant example of a lease “until Britain
wins the Davis Cup.” What fixed term is long enough to cover that event with certainty?83
Legislative intervention would be required to adopt any particular fixed term as a solution. Piecemeal
judicial intervention could never hope to distinguish cases in which it was fair to fix a rent for a very
long period and cases in which the parties really contemplated a short-term arrangement.
Escape from uncertainty 2: a determinable lease for life
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A second method of escaping uncertainty is to allow equity to redefine the parties' expression of their
intentions. Equity is not blinded by the legal form of a document but looks at the substance of the
rights of the parties. Browne v. Warner 84 illustrates the flexibility of equity in the enforcement of
informal arrangements for leases. A lease for an uncertain period may be treated as a lease for life,
determinable when the uncertain determining event occurs. This was firmly rejected by Lord Greene
M.R. as a solution to the facts of Lace v. Chantler. 85 Its usefulness on more appropriate facts can be
traced back to the proceedings in Chancery in Browne v. Warner. A parol agreement for a lease
provided that the landlord would not turn out the tenant so long as he paid a certain rent. The landlord
was allowed at common law to terminate as if there was a yearly tenancy.86 The tenant sued for
specific performance on the basis that there was an agreement to create a lease for life. Lord Eldon
L.C. refused to terminate the proceedings at an early stage.87 It emerged *L.Q.R. 106 later that the
landlord Warner had only a lease with six months remaining at the time of the agreement with
Browne; the arrangement not to terminate Browne's interest or increase his rent suggested only an
arrangement for the remainder of the landlord's six month leasehold interest rather than a lease for
Browne's life.88
The same terms agreed by a freehold owner would create a lease for life.89 The fusion of law and
equity would bring together the result in one court and would enable the informal arrangement to be
recognised directly as an equitable lease.90 The position under the fused jurisdictions was considered
in Zimbler v. Abrahams. 91 A house was let at a weekly rental. The landlord entered into the following
agreement: “I agree not to raise Mr. A any rent as long as he lives in the house and pays rent regular.
I shall not give him notice to quit …” The landlord gave a week's notice to quit, as though the tenant
were a weekly tenant. Vaughan Williams L.J. held there was an agreement to create a lease for life,
then a recognised freehold estate, which equity was able to perfect through specific performance.
After 1925 it would operate as an agreement to create a lease for 90 years, terminable by notice after
death.92
It is not feasible to construe a lease as for life unless the tenant is an individual. Otherwise it could
theoretically be construed as a freehold interest. In Dossee v. East India Co. 93 a lease to an
individual until land was required for road widening could survive the death of the tenant. That
indefinite interest, not limited to a life or for years, was best seen as a freehold interest.94 It could not
be a fee simple absolute, and so would not be a legal estate in England after 1925.95 The prohibition
of freehold rents96 might create problems in modern law. Nevertheless the freehold approach is the
only one viable for business tenancies, particularly if the tenant is a company.97
*L.Q.R. 107 Escape from uncertainty 3: the licence
Many unpalatable doctrines of land law, such as formality rules, have been avoided by escape into
licence doctrine. Can the requirement of certainty of term be escaped in this way?
Licences need not display prospective certainty of duration. A licence would need to be certain in
retrospect, so that it was apparent when the right of occupation came to an end. If it created more
than a transient interest, a licence would have to be contractual or supported by estoppel. A
contractual licence would need to show with certainty what contractual obligations had been entered
into. It is unclear whether perpetual rights could be created by contract.98 Estoppel doctrine might be a
great deal more flexible. There seems to be no objection to an indefinite licence by estoppel.99 And
licences governed by a vague limitation appear to be accepted. Tanner v. Tanner, which was
analysed on rather dubious grounds as a contractual licence, was found to give a right to
accommodation for the woman and her children so long as they were of school age and reasonably
required accommodation.100 This was really an arrangement for occupation until further order.
Whatever the validity of such a contract, it is manifest that prospective certainty will not be insisted
upon.
How is one to choose between lease and licence analysis? In the period of great expansion of licence
doctrine during Lord Denning's period on the bench, particularly when he was Master of the Rolls, the
courts appeared to be ready to shift from lease to licence doctrine whenever this was desirable in
order to achieve the “right” result. Limitation, formality and revocation principles could interrelate in
random ways, so that the result that appears right from one perspective may obviously be wrong from
another. The unexplained basis on which this shift occurred provided a decidedly flimsy foundation for
many licence cases.
An analysis of a representative selection of three cases will have to suffice, starting with Errington v.
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Errington & Woods. 101 A young couple had a home provided for them by the man's father; the
question was the nature of their occupation under an arrangement by which they were to pay off the
building society mortgage by instalments. The couple appeared to have exclusive occupation of the
house. They were held not to be tenants partly because they did not have an obligation to pay rent,
partly because they did not have an *L.Q.R. 108 assignable interest and partly because there was no
intention to create a landlord-tenant relationship.102 Each ground can be queried. Rent is not needed
for a lease103 ; later cases did allow licences to create proprietary rights104 ; and the intention of the
parties is largely irrelevant.105 Since the couple had exclusive possession, a more orthodox analysis
would have been that they held for a determinable life interest, albeit supported by a proprietary
estoppel giving the right to a conveyance of the house once the mortgage was completely
discharged.
In Inwards v. Baker 106 the son was allowed to build a bungalow on his father's land and was held to
be protected by an estoppel preventing revocation of his right of occupation after the father's death.
The son had exclusive possession of the bungalow. The Court of Appeal however treated the case as
one of a licence protected by an estoppel preventing revocation rather than a life interest or a tenancy
at will with an estoppel preventing revocation. There is no doctrinal reason why it is sounder to attach
an estoppel to a licence rather than to a tenancy.
The most explicit, and hence the most interesting, analysis is that adopted by Lord Denning M.R. in
Binions v. Evans. 107 The widow of an employee on an estate was allowed to reside in the tied cottage
for the remainder of her life holding under a written document which described her as a tenant at will.
Lord Denning nevertheless analysed her rights as arising under a contractual licence. He held that
there was no tenancy at will because there was an agreement to allow occupation for the remainder
of the widow's life which was inconsistent with a tenancy at will.108 If so, there should have been a
tenancy for life, as indeed Megaw and Stephenson L.JJ. decided. Lord Denning avoided this result for
no better reason than a dislike of the strict settlement analysis for which Bannister v. Bannister was
binding authority.109 Superficially the removal of all legal title from the purchasers, Binions, appears to
be draconian punishment for their inequitable conduct. However, Mrs. Evans held the land on trust for
herself for life and thereafter for the Binions, a result little different from giving the Binions legal title
but on constructive trust to give effect to Mrs. Evans' exclusive licence for life.
*L.Q.R. 109 Lord Denning proceeded in Binions to reject the possibility that there was any other form
of tenancy, because of the requirement of certainty of maximum term. This island of orthodoxy in a
sea of the unorthodox led to the conclusion that Mrs. Evans had no tenancy known to the law.110
Hence she had a licence. The case relied on, Shell-Mex and B.P. Ltd. v. Manchester Garages Ltd., 111
was distinguishable as a true licence case; despite the factual exclusive occupation for four years,
there was no right to continue in exclusive possession. And there precisely is the rub. Mrs. Evans did
have exclusive possession. Lord Denning's dissent in Binions v. Evans was unorthodox in recognising
the existence of a licence when there was exclusive possession. We now know that the adoption of
that line was a mistake, for contractual licence analysis compromised the proprietary status of Mrs.
Evans' occupation right.112
How is Binions to be reconciled with Street v. Mountford? 113 Lord Templeman was concerned in that
case to preserve the integrity of the Rent Act 1977 by ensuring that contracting out could not occur by
arbitrary re-categorisation of leases as licences. He laid down the three indicia of a residential
tenancy: exclusive possession, for a term, at a rent.114 The same considerations do not necessarily
apply in other contexts, and the arguments might be quite different if the holding was rent-free.
Ashburn Anstalt v. Arnold 115 suggests that Street v. Mountford does apply to rent-free occupation
arrangements. If so, Lord Templeman's criteria for a tenancy can be reduced from three to two: a
grant of exclusive possession for a term creates a rent-free lease.116
The present question is whether the requirements can be further reduced to one. Does a grant of
exclusive possession create a tenancy of some sort? In Ashburn the Court of Appeal took an express
licence and decided, wrongly, that it created a certain term. In fact we now know that the term was
uncertain.117 It makes for a much harder case to take a valid licence and treat it as an uncertain lease.
That was exactly what traditional land law required. Blackstone said that an uncertain lease should be
construed as a tenancy at will or as a periodic tenancy.118 The development of more sophisticated
licence *L.Q.R. 110 doctrine might be thought to have changed this common law approach. This
leaves Canadian Imperial Bank of Commerce v. Bello. 119 A builder was given a right to occupy a
dwelling rent-free until he was paid for reconstruction work he had carried out. This clearly was not a
term; without a rent it could not be rescued as a periodic tenancy. Was the court right to treat it as a
tenancy and not as a contractual licence?
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The rejection of the licence argument in Lace v. Chantler 120 appears to have blocked off that means
of escape from uncertainty where a rent is payable. And in Prudential Assurance Co. Ltd. v. London
Residuary Body, where the point was not argued, Lord Templeman has intuitively adopted the lease
analysis. The parties described their arrangement as a lease, but their description of the agreement is
not conclusive. The test is substantive.121 The attempt to create a lease of uncertain duration until the
land was required for road-widening created a tenancy at will122 and not a licence. Presumably
exclusive possession was the decisive factor. Exclusive possession was also present in Errington,
Inwards and especially Binions. All three are inconsistent with Prudential for in each an occupational
right of uncertain duration which conferred exclusive possession was construed as a licence of
uncertain duration. Exclusive possession must be the vital test for a commercial arrangement, even
though no certain term was expressed. It would be helpful to know whether the same test applies to
non-commercial arrangements for occupation for uncertain durations. If so, dozens of Court of Appeal
decisions on licences are suspect. If not, the courts should provide guidance as to when it is
permissible to switch to licence analysis. The use of exclusive possession as the litmus test had the
merit of providing a clear doctrinal demarcation of property law.
III. WAS THE RESULT UNJUST?
Lord Browne-Wilkinson characterised the result of Prudential Assurance Co. Ltd. v. London
Residuary Body as unsatisfactory.123 But Lord Templeman provided no hint of unease at the result to
which his technical analysis directed him.
The lease originated from the acquisition by the London County Council of a strip of land fronting
Walworth Road to a depth of 25 feet for road widening in 1930. The strip of land was leased back to
the previous owner at £30 a year, the tenancy to continue until the *L.Q.R. 111 land was required by
the council for the widening of the street. Temporary shops were erected on the strip of land. The
implication of Lord Browne-Wilkinson's speech is that the site is now occupied by one shop which
stands partly on the strip originally earmarked for road-widening and partly on the land retained by the
shopkeeper in 1930, so that the two parts in different ownership are indistinguishable on the ground.
The termination of the tenancy may create great difficulties for the owners of both freehold sections,
the owners of the frontage because the shop is not deep enough for use alone and may be subject to
implied grants to the freeholder at the back; the freeholder at the back because the frontage is lost. At
present the shop is sublet and so long as the subtenant remains protected in occupation, these
problems are limited to fair division of the rent. Lord Browne-Wilkinson made a convincing case that
Prudential Assurance is the innocent victim of an arbitrary rule of law. The question is whether the
“bizarre” result flows, as Lord Browne-Wilkinson asserted,124 from the rule of uncertainty. It will be
argued that this was not the case.
The facts of the cases are unusual in that they involved a physical division of ownership. So far as the
original shop owners were concerned they had the opportunity in negotiations to use appropriate legal
forms to ensure that they did not lose control of the strip of land until a street was built to which they
would have a frontage. They could for example have given the council an option to purchase the strip
when the road was to be constructed supported by a covenant to carry out the works. They chose to
use a lease which was an inappropriate form to secure their intentions. Commercial parties, properly
advised, should not complain about the results of their agreements. On the facts both parties to the
1930 lease had clearly nailed their colours to the mast. They intended to and did create a lease. They
then failed in their obligation to name a certain term. To ask for that is really no different from
requiring them to define the demised premises, to name a certain rent, and to use a deed. Property
law cannot work unless the parties are required to create property interests. If the parties had not
really intended an uncertain leasehold term, escape routes were available for equitable
reinterpretation of their arrangement.
It was clear when Prudential Assurance acquired the premises that they were buying a lease which
was void under Lace v. Chantler. 125 By then it was apparent that road widening would not proceed
and one would expect prudent buyers to consider the security of their *L.Q.R. 112 road access. They
bought an unmarketable title. They could easily have required renegotiation of the terms on which the
strip was held from the council. Perhaps they negotiated an advantageous price. If not, no tears
should be wasted on a large commercial organisation which gets caught out by such easily avoided
risks. If they have any complaint it is with the earlier erroneous Court of Appeal decisions.
What one needs to do is to isolate the certainty issue and see whether that by itself leads to
unfairness. That inquiry needs consideration of all cases and not just the abnormal Prudential facts
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involving an ill thought out division of the land into strips. The unifying theme of all certainty cases is
that the courts are asked to make an agreement for the parties. In each case the parties have
contracted for occupation until an uncertain contingent event. In each case the expectation was that
the uncertain event would occur fairly soon.126 If they anticipated that the interest would be perpetual
they could easily make appropriate arrangements, for example by creating a 999 year term. The
courts are asked to intervene when it becomes apparent that the contingency will not be fulfilled as
expected. In Midland Railway 127 a lease of land near Luton station was granted at a rent of £1 per
year until the land was required for railway purposes. Given events which have occurred between
1920, when the lease was granted, and now, that was a lease for ever. It is true that the land involved
was minute, but even so the rent had become quite unrealistic. In Lace v. Chantler the war was
dragging on, and could have gone on for a long period.128 In Ashburn Anstalt v. Arnold a right to
occupy rent-free until development proceeded had turned into free occupation for ever by the refusal
of planning permission for development.129 And in Prudential Assurance, as analysed by Lord
Templeman, a rent fixed in 1930 of £30 a year continued to be paid for premises now worth £10,000
a year.130
In some, but only some of these cases, insistence on uncertainty undoes the intentions of the parties.
But in the remainder the courts are asked to bring to an end an agreement for which the parties have
expressed no end. Precisely the difficulty is in distinguishing which type of case is which. Allowing
leases without certain limits will involve just as many cases of injustice, with land being given away
unintentionally, as will insistence on a certain term before conceding proprietary status. To relax the
requirement of certainty would be to allow the creation by accident of an incumbrance against
property of *L.Q.R. 113 indefinite duration at what may become a derisory rent. The rule of certainty
coupled with the available escape routes achieves surprisingly fair results.
One injustice that is clearly demonstrated by Prudential Assurance Co. Ltd. v. London Residuary
Body derives from the inappropriate constitutional function of the London Residuary Body. It is wrong
to compel open market disposals of public land without considering the public obligations attached to
it. No difficulty arose while the various highway authorities retained the strip. Highway authorities
retain numerous strips of land which it would be inappropriate for them to market. Attempts at
commercial exploitation only occurred with the transmission of title to the London Residuary Body. It
is one thing to charge a public body with the disposal of individual commercial units which were
thought to be needed by the public which are now surplus to requirements; it is quite another to
require a public auction of ransom strips. The facts of the case demonstrate conclusively the
unfairness of allowing outright public acquisition of strips of land, as opposed to whole sites.
Acquisition of this particular strip was by agreement, but naturally the terms of any agreement are
determined by the compulsory purchase legislation. Under older compulsory procedures freehold title
would have revested if the land was not, or ceased to be, required for public purposes.131 Specific
legislation to right this and similar injustices effected by the London Residuary Body would be a better
solution than tinkering with the certainty rule.
CONCLUSION
The decision of the House of Lords in Prudential Assurance Co. Ltd. v. London Residuary Body 132 is
welcome for its reassertion that the same certainty rule applies to fixed and to periodic terms. Leases
had always required certainty of maximum duration at the outset. The choice by the House of Lords to
reaffirm the traditional rule was the safe option in view of the danger of upsetting established titles.
Any formal requirement, like that of prospective certainty of term, risks upsetting the intentions of
contracting parties. On balance, it has been argued, the result was not unjust, but if it was escape
routes were available. No need for reform of the law has been demonstrated.
PETER SPARKES.133
L.Q.R. 1993, 109(Jan), 93-113
1.
Anundomohey Dossee v. East India Co. (1859) 8 W.R. 244.
2.
At p. 248.
3.
[1992] 3 W.L.R. 279, reversing the Court of Appeal judgment reported at [1992] 1 E.G.L.R. 47.
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4.
Expressly overruled were Re Midland Railway Company's Agreement [1971] Ch. 725, Ashburn Anstalt v. Arnold [1989]
Ch. 1, and the Court of Appeal decision in Prudential; by implication the more extreme decision in Canadian Imperial
Bank of Commerce v. Bello (1991) 24 H.L.R. 155 is also inconsistent.
5.
[1992] 3 W.L.R. 379 at p. 285E.
6.
Apart from the later Court of Appeal decisions referred to in n. 4 supra.
7.
As long as the maximum duration is fixed, a lease may provide for earlier termination: Law of Property Act 1925,
s.205(1)(xxvii). Thus in Joseph v. Joseph [1967] Ch. 78 at p. 86D-G a lease providing for the tenant to give up
occupation “by July 31, 1960” was held to be a valid lease.
8.
[1944] K.B. 368. The All E.R. have Lace v. Chandler [1944] 1 All E.R. 305.
9.
Co. Litt. (19th ed., 1832), para. 45b; 2 Bl. Comm. (1st ed., 1766) p. 143; Say v. Smith (1530) 1 Plowd 269, 75 E.R. 410.
See also Platt, Law of Leases (1847), vol. 1, p. 22.
10.
[1992] 3 W.L.R. 279 at p. 281E-H.
11.
(1605) 6 Co. Rep. 34b.
12.
At p. 35b.
13.
Re Midland Railway Co.'s Agreement [1971] Ch. 725 at p. 731H, per Russell L.J.
14.
For example Pocock v. Carter [1912] 1 Ch. 663 (tenancy for duration of partnership). Swift v. Macbean [1942] 1 K.B.
375 was impliedly overruled in relation to termination. The subsequent decision of Charles J. in Eker v. Becker [1946] 1
All E.R. 721 is plainly wrong.
15.
[1944] K.B. 368 at p. 370, per Lord Greene M.R.
16.
[1944] K.B. 368 at p. 370 (rejection of Mr. Sturge's argument).
17.
[1989] Ch. 1 at p. 11G.
18.
At p. 12E.
19.
[1992] 3 W.L.R. 279 at p. 286F.
20.
At p. 286B-H.
21.
[1944] K.B. 368 at p. 370.
22.
[1992] 3 W.L.R. 279.
23.
(1st ed. 1766), vol. 2, p. 147.
24.
At p. 151; Scott L.J. refused to imply a restriction on both parties. Previous cases like Midland Railway had all
concerned express restrictions.
25.
[1992] 3 W.L.R. 279 at p. 286D.
26.
[1944] K.B. 368 at p. 370, second paragraph, per Lord Greene M.R. A similar argument was available, but also not
used by Rowlatt J., in Great Northern Railway Co. v. Arnold (1916) 33 T.L.R. 114.
27.
[1971] Ch. 725.
28.
[1944] K.B. 368.
29.
[1971] Ch. 725 at p. 732D.
30.
At p. 732F-G.
31.
An example given by Russell L.J. at p. 732F.
32.
Noted but not followed by Russell L.J. at pp. 732H-733C.
33.
Elements of Land Law (1987), p. 437. A similar approach was adopted by Lord Bridge in Hammersmith and Fulham
L.B.C. v. Monk [1992] 1 A.C. 478 at pp. 489-490, citing Bacon's Abridgment (7th ed.), Vol. 4, p. 839.
34.
At p. 733C.
35.
[1948] 2 K.B. 1 (restriction on service of notice for a fixed term of three years).
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36.
[1992] 3 W.L.R. 279 at p. 285H.
37.
(1807) 8 East. 165; the proceedings in Chancery under the name Browne v. Warner (1808) 14 Ves. 156, 409 are
discussed below. Lord Eldon (at p. 158) said that the common law decision was obviously right.
38.
At p. 167.
39.
Midland Railway [1971] Ch. 725 at p. 733F, per Russell L.J.; Centaploy Ltd. v. Matlodge Ltd. [1974] Ch. 1.
40.
(1808) 14 Ves. 156.
41.
(1808) 14 Ves. 409.
42.
(1880) 50 L.J.Q.B. 121.
43.
Lord Templeman supported Cheshire Lines and overruled Midland Railway (apparently only on uncertainty and not
repugnancy).
44.
At p. 128.
45.
See the argument of counsel; [1971] Ch. 725 at p. 728D.
46.
At p. 733D.
47.
[1948] 2 K.B. 1. The case is implicitly approved by Lord Templeman.
48.
[1971] Ch. 725 at p. 733C-E.
49.
At pp. 733F-734A.
50.
(1880) 50 L.J.Q.B. 121 at p. 128.
51.
It was a long delayed revenge; Mr. Templeman, Q.C. led for the landlords in Midland Railway.
52.
[1989] Ch. 1 at p. 10C-12H.
53.
[1992] 3 W.L.R. 279 at p. 286D.
54.
Most notably the control test proposed (though described as unsatisfactory) by Scott L.J. in the Court of Appeal in
Prudential Assurance Co. Ltd. v. London Residuary Body [1992] 1 E.G.L.R. 47 at p. 51E-H.
55.
[1992] 3 W.L.R. 279.
56.
Law of Property Act 1925, s.1(1).
57.
Law of Property Act 1925, s. 149(6) discussed further, infra.
58.
Law of Property Act 1925, s.1(1).
59.
s.205(1)(xxvii).
60.
s.205(1)(xxvii), concluding words.
61.
[1944] K.B. 368.
62.
[1992] 3 W.L.R. 279. See also Street v. Mountford [1985] A.C. 809 at p. 814E-F, per Lord Templeman.
63.
[1989] Ch. 1. The facts are similar to Dossee v. East India Co. (1859) 8 W.R. 244, which Lord Chelmsford said (at p.
248) was not a term of years; note the significance he attached to this before 1926.
64.
(1991) 24 H.L.R. 155.
65.
[1992] 3 W.L.R. 279 at p. 282A.
66.
See Megarry and Wade, Law of Real Property (5th ed.), p. 129.
67.
[1948] 2 K.B. 1.
68.
At p. 7.
69.
(1882) 21 Ch.D. 442 at p. 456.
70.
[1971] Ch. 725. The periodic tenancy implied by the Court of Appeal in Prudential Assurance Co. Ltd. v. London
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Residuary Body [1992] 1 E.G.L.R. 47 raises exactly the same problem.
71.
Parker v. Taswell (1858) 2 De G. & J. 559; Dossee v. East India Co. (1859) 8 W.R. 244 at p. 248; Zimbler v. Abrahams
[1903] 1 K.B. 577.
72.
(1808) 14 Ves. 156, 409; Dossee v. East India Co. (1859) 8 W.R. 244.
73.
(1880) 50 L.J.Q.B. 121 at p. 129. The decision can be criticised for its misunderstanding of Parker v. Taswell (1858) 2
De G. & J. 559 (see Megarry and Wade, Law of Real Property (5th ed.) p. 639, n. 86) but the certainty point is sound.
See also Wood v. Beard (1876) 2 Ex.D. 30 at p. 37, per Cleasby B.
74.
[1951] 2 T.L.R. 222.
75.
At p. 226, citing Tooker v. Smith (1857) 1 H. & N. 732 and Foà's Law of Landlord and Tenant (7th ed.) p. 586.
76.
[1992] 3 W.L.R. 279 at p. 282A-C.
77.
[1971] Ch. 725.
78.
There is an obvious difficulty with a term of nine years terminable after three or six years; the court in Goodright d. Hall
v. Richardson (1789) 3 Term Rep. was divided as to whether this was a term of three or nine years.
79.
(1916) 33 T.L.R. 114; cf. Siew Soon Wah v. Yong Tong Hong [1973] A.C. 836, 844 where the words “this lease shall be
permanent” were held to create a lease for 30 years, the maximum permitted duration under Malaysian law. See also
Browne v. Warner, discussed below.
80.
[1944] K.B. 368 at p. 371. MacKinnon L.J. (at p. 372) was even more critical.
81.
Validation of War Time Leases Act 1944, s.1(1), discussed by Lord Templeman [1992] 3 W.L.R. 279 at pp. 282H-283B.
82.
Law of Property Act 1925, s.149(6); this is reasonable if the 90 years is taken from the age of majority.
83.
[1992] 1 E.G.L.R. 47 at p. 51A. Scott L.J. took 99 years.
84.
(1808) 14 Ves. 156, 409, discussed above.
85.
[1944] K.B. 368 at p. 371; Dossee v. East India Co. (1859) 8 W.R. 244 at p. 248.
86.
Doe d. Warner v. Browne (1807) 8 East. 165. Lord Eldon L.C. (1808) 14 Ves. 156, 158 said that the decision at
common law was obviously right. See Wood v. Beard (1876) 2 Ex.D. 30--common law because no counterclaim for
specific performance.
87.
The case was reported on a demurrer to a bill for specific performance: (1808) 14 Ves. 156. The landlord was
restrained by common injunction from enforcing his common law right to possession.
88.
(1808) 14 Ves. 409. The case was then presumably settled: Cheshire Lines Committee v. Lewis & Co. (1880) 50
L.J.Q.B. 121 at p. 125, per Lush J. See also Re King's Leasehold Estates (1873) L.R. 16 Eq. 521 (landlord had term for
10 years), referring only to the proceedings at (1808) 14 Ves. 156; also Kusel v. Watson (1878) 11 Ch.D 129
(underlease for residue of 59 years less one day); Adams v. Cairns (1901) 85 L.T. 10.
89.
Re King's Leasehold Estates (1873) L.R. 16 Eq. 521 at p. 527, per Malins V.-C. Note the cautions in Cheshire Lines
Committee v. Lewis & Co. at pp. 126 (Lush J.) and 129 (Brett L.J.). See also Wood v. Beard (1876) 2 Ex.D. 30 at p. 36,
per Cleasby B.
90.
Under Walsh v. Lonsdale (1882) 21 Ch.D. 9.
91.
[1903] 1 K.B. 577 (C.A.). Cozens-Hardy J. appeared to hold that the very similar term in Mardell v. Curtis [1899] W.N.
93 was certain as it stood. See the discussion by Lord Denning M.R. in Binions v. Evans [1972] Ch. 359 at p. 367E-H.
92.
Law of Property Act 1925, s.149(6); provided there was a rent; otherwise the Settled Land Act 1925 would apply, as in
Binions v. Evans [1972] Ch. 359.
93.
(1859) 8 W.R. 244, 248.
94.
The case was decided at common law; no freehold estate was created at law in the absence of a deed; the equitable
rights of the parties were reserved for subsequent proceedings.
95.
Law of Property Act 1925, s.1(1).
96.
Rentcharges Act 1977, s.2.
97.
As in Re Midland Railway Co.'s Agreement [1971] Ch. 725.
98.
Sevenoaks Maidstone and Tunbridge Ry. Co. v. London Chatham & Dover Ry. Co. (1879) 11 Ch.D. 625 at p. 635, per
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Jessel M.R.
99.
E.R. Ives Investment Ltd. v. High [1967] 2 Q.B. 379.
100.
[1975] 1 W.L.R. 1346 at p. 1350E.
101.
[1952] 1 K.B. 290.
102.
At pp. 296-298.
103.
Ashburn Anstalt v. Arnold [1989] Ch. 1 at p. 10A, per Fox L.J. discussed below.
104.
E.g. Binions v. Evans [1972] Ch. 359, per Lord Denning M.R. dissenting; this development of contractual licence
doctrine has also been stopped by Ashburn Anstalt.
105.
Street v. Mountford [1985] A.C. 809.
106.
[1965] 2 Q.B. 29.
107.
[1972] Ch. 359.
108.
At pp. 365G-366B.
109.
[1948] 2 All E.R. 133. The reform of the Settled Land Act 1925 would be a better solution than the development of
unsatisfactory licence doctrine.
110.
At p. 367A.
111.
[1971] 1 W.L.R. 612.
112.
Ashburn Anstalt v. Arnold [1989] Ch. 1 at pp. 13-22.
113.
[1985] A.C. 809.
114.
At p. 816F.
115.
[1989] Ch. 1, 9F-10B. Doubted, but followed, by Dillon L.J. in Canadian Imperial Bank of Commerce v. Bello (1991) 24
H.L.R. 155 at p. 159.
116.
The statement by Lord Templeman in Prudential [1992] 3 W.L.R. 279 at p. 281D is equivocal; it does not refer to a rent
but does refer to the enjoyment of profit from land.
117.
Ashburn was overruled on certainty by Lord Templeman in Prudential [1992] 3 W.L.R. 279 at p. 286F.
118.
Commentaries (1st ed. 1766), Vol. 2, p. 147.
119.
(1991) 24 H.L.R. 155.
120.
[1944] K.B. 368.
121.
Binions v. Evans [1972] Ch. 359 (express tenancy at will treated as licence); Ashburn Anstalt v. Arnold [1989] Ch. 1
(licence treated as tenancy).
122.
Converted to a periodic tenancy by the payment and acceptance of rent.
123.
[1992] 3 W.L.R. 279 at p. 287D.
124.
[1992] 3 W.L.R. 279 at p. 287E.
125.
[1944] Ch. 368.
126.
Lord Templeman suggested five to 10 years as the likely timescale in Prudential at the time of creation of the lease in
1930: [1992] 3 W.L.R. 279 at p. 281B.
127.
[1971] Ch. 725.
128.
[1944] K.B. 368.
129.
[1989] Ch. 1.
130.
[1992] 3 W.L.R. 279 at p. 281D.
131.
Cf. British Railways Board v. Pickin [1974] A.C. 765; Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex and B.P. Ltd.
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[1975] Q.B. 94; Buckinghamshire C.C. v. Moran [1990] Ch. 623.
132.
[1992] 3 W.L.R. 279.
133.
Solicitor; Lecturer in Law, University of Southampton.
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