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Lower 'The Bruton Tenancy'

  • Some suggest that 'the courts are moving towards a major restructuring of landlord and tenant law along contractual lines.' Street v Mountford shows lease is estate in land. Can be read as authority for the idea that a lease is a contract that confers exclusive possession for a term and rent. Left open to leases being contracts. Bruton confirmed its possibel to make a non proprietary lease. 
  • Street v Mountford- Templeman clearly envisaged that the landlord would have an interest in land and the lease would itself be an estate in land. Took for granted the landlord would have an interest in land out of which to carve the lease. Templeman said there is an intimate relationship between the three hallmarks of a lease and the idea that a lease is an estate in land. Also said theres no lease in the absense of an interest in land out of which it could be carved. Exceptional case where 'the owner, a requisitioning authority, had no power to grant a tenancy.' 
  • The traditional understanding is that the landlord needs a reversion- there could not be a purely contractual lease that wasnt carved out of an interest in land. Greene in Milmo v Carreras - 'tenure exists by reason of privity of estate. You cannot have a purely contractual tenure.' Nemo dat quod non habet.
  • Bruton's non proprietary lease- CoA decided the licence was in fact a tenancysince it had the badges of a tenancy, despite the Association only having a licence. 
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Lower 'The Bruton Tenancy'

  • Crux of the issue is if someone with no legal estate can grant a tenancy. HoL said there was a tenancy as Street was satisfied. Hoffmann said 'the classification of the agreement as a lease does not depend on anything additional to that expressed in the choice of terms. It is simply a question of characterising the terms which the parties have agreed. This is a question of law.' Nothing in the agreement prevented B from having exclusive possession. 
  • The sequel- Kay v Lambeth- arguments relied on the principle in Mellor v Watkins where the surrender of a headlease has the effect that the landlord takes over as landlord of any subtenant. Operates as 'the sub tenancy belongs to the subtenant not the immediate landlord.' The non estate Bruton tenancies could survive as against the grantor of them, but they were not binding against Lambeth. Acceptance of the Bruton tenancy requires one to think carefully about where the boundaries lie between the leases as estate in land and estate in contract. Boundaries are likely to be difficult to draw. 
  • The position after Bruton and Kay- it is possible to have a purely contractual lease where the landlord has no reversionary interest. Since the landlord lacked an immediate interest in the land, the lease is incapable of binding anyone with an immediate claim to possession. Some aspects of land rest on the idea that the lease is an interest in land so may cause difficulties. 
  • Pawlowski says 'the proprietary nature of a lease does sometimes produce results which do not accord with the plain contractual intentions of the parties.' 
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Lower 'The Bruton Tenancy'

  • Pawlowski suggests the HoL raises the question of a new form of 'quasi estate'. Believes it should be resisted and due weight should be given to nemo dat quod non habet. Dixon argues that a non proprietary lease is a contradiction in terms. The concept of a lease is independent from the contract out of which it has arisen. Pawlowski argues that Bruton does not give enough weight to 'the extent to which the contractual freedom of landlord and tenant is necessarily limited by reason of the inherent nature of a leasehold estate.' 
  • Cases where Street hallmarks where present but there was no lease- The judge doubted whether there was any simple all embracing test which would divide the lease from the licence in every caes. If this is correct the fact that an alleged landlord has no interest in land could be a relevant fact to offset the presence of the hallmarks of a lease identified by Templemen. 
  • Could the Bruton lease take effect as a tenancy by estoppel? Neill in the CoA said 'the fact that the grantee knows the grantor has no estate does not prevent a tenancy by estoppel arising.' He thought since the agreement bore all the hallmarks of a tenancy that LQHT was estopped from denying that it had created one. This was not talked about in HoL as the trust never held itself out as a landlord and it was simply a case of categorising the agreement correctly. 
  • Is relativity of title key to understanding Bruton? Lewison suggests that there is no basis for the assertion that B created a species of non proprietary tenancy.
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Lower 'The Bruton Tenancy'

  • Lewison- title is relative. Applied to B tenancy the idea would seem to be that the tenant has a lease that is good against everyone except those with a title that is superior to that of landlord or licencor. On the otherhand the idea of contractual lease based on relativity of title contradicts the fundamental concept nemo dat quod non habet. 
  • Is the idea of property misleading? Hinojosa favours the idea that a property right is one that confers 'control over access'. B tenancy can be as it confers a sufficiently intense degree of control over access. Has sufficient degree of propertiness. Says there is room for a contractual lease and proprietary leasehold. 
  • Gray and Gray- 3 features of propertiness- immunity from summary cancellation or extinguishment, a presumptive entitlement to exclude others and an entitlement to prioritise resources. When these are present to a sufficiently significant degree then one can have a proprietary right. 
  • A need for rationalisation? Pawlowski suggests time has come for Parliament to rationalise these interests by creating a new non proprietary occupational right. Would confer exclusive occupation either for a specified period or determinable at will. Could bind third parties in equity in exceptional circumstances. 
  • Bruton generated many difficult questions.
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Smith 'Property Law'

  • essence of a lease- the use of anothers land, usually for a specific time in return for the payment of rent. Law Commission describe as temporary property ownership. 
  • History- used to be a mere contractual right before 15thC. 
  • Two forms of tenancy not referenced by time- 1) tenancy at will- allows another into possession without any period stipulated. Not a right that can survive the sale of land. 2) tenancy of sufferance- where the tenant holds over on the termination of a lease. If the landlord objects to holding over the tenant is a trespasser. 
  • Requirements of a lease- rent that is decided in the future will be given effect if it has a formula eg market prices. A lease can only be commenced 21 years in the future. Law is concerned with maximum duration. Most leases can be cut short by breaches. 
  • Exclusive possession- can be a way of drawing the line between leaseholds and easements/profits. Street- Templeman was clear that exclusive possession is conclusive. Courts are wary of sham mechanisms. Lodgers- 'occupier is a lodger if the landlord provides attendance or services which require the landlord to exercise unrestricted access to and use of the premises.'- Templeman. 
  • Exclusive occupation has never been conclusive of a lease however cases havent used the terminology consistently. Lodger extends to hotel visitors. Need to look at terms on which it is taken. 
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Smith 'Property Law'

  • Purchasers in possession prior to completion- traditional approach was to regard such purchasers as tenants in will. 
  • Service occupiers- requirements arent applied harshly. 
  • The role of the 4 unities- Mikeover shows the possibility of creating licences by negating one of the four unities. Charging different rents to occupiers may indicate no unity of interest. 
  • The absense of rent makes it impossible to have a periodic tenancy. Extends automatically from one period to another unless terminated. Creates a legal estate. Protects tenants from eviction. Parties can stipulate the notice terms but must be reasonable. Once the period has began it cannot be cut short by notice. Law Commission has recommended that a joint tenancy of a residential tenancy shoudl be able to give notice to leave the joint tenancy without terminating the lease.
  • Tenancy at wills role has been diminished by the use of licences. Either party can terminate it without prior notice. 
  • Equitable lease- most important application is where a purported lease is void because it is not by deed, equity treats it as an agreement for a lease and enforces it as such. Still have to be in writing and signed by both parties. Specific performance of the agreement must be possible for Walsh v Lonsdale to apply. 
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Smith 'Property Law'

  • leases for life- hybrid between freehold life estates and terms of years. Where there is rent this is taken as the hallmark of a commercial relationship that should be treated like any other lease. In order to have certainty LPA 1925 s149(6) converts it into a 90 year lease terminable on death. 
  • Discontinuous leases- can create leases without continuous possession. One may let the property for three successive bank holidays. This is a single lease. The law on this area isnt fully worked out. Uncertain if you need a deed or not. 
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