Certainty of Terms and Leases: Curiouser and Curiouser
Published date | 01 May 2012 |
DOI | http://doi.org/10.1111/j.1468-2230.2012.00907.x |
Date | 01 May 2012 |
Author | Kelvin F. K. Low |
Certainty of Terms and Leases: Curiouser and Curiouser
Kelvin F. K. Low*
The common law rule that requires leases to have a fixed ter minus from the outset is one that
has been much criticised. In Berrisford vMexfield Housing Co-operative Ltd, the Supreme Court
managed to blunt its effect by suggesting that most leases of uncertain duration can be transformed
into 90-year tenancies. However, it is suggested that their Lordships have possibly misunderstood
and overstretched an ancient common law ‘rule’ and have not fully considered some of the
implications of their decision.
‘Begin at the beginning, . . .and go on till you come to the end; then stop.’1
Beginnings and endings, particularly endings,feature no more prominently in the
law than in the context of leases. In particular, the law requires that a leasehold
estate,or a ter m of years absolute, must from the outset have a fixed terminus.This
rule of law would thus invalidate the g rant of a fixed ter m lease until England
wins theWorld Cup.Likewise,a periodic tenancy which forbids either par ty from
exercising its right to terminate unless England wins the World Cup would also
be rendered void.Though much criticised, the courts seem resigned to deferring
to the respectability this rule has built up simply through the passage of time.‘It
is far from clear’, it has been said,‘that the historic rationales for the rule retain
today the force which they may once have enjoyed.’2In Prudential Assurance Co
Ltd vLondon Residuary Body,3(Prudential Assurance) although Lord Browne-
Wilkinson joined in affirming the rule, his Lordship nevertheless descr ibed it as
‘ancient and technical’, productive of ‘bizarre outcome[s]’ and devoid of ‘satis-
factory rationale’ or ‘useful purpose’.4The rule is said to be objectionable ‘on the
ground that it frequently denies efficacy to perfectly sensible arrangements
derived from a process of conscious bargain between autonomous per sons.’5
In Berrisford vMexfield Housing Co-operative Ltd,6(Berrisford vMexfield)aseven
member panel of the Supreme Court echoed his Lordship’s views.Although the
rule was retained, their Lordships avoided the ‘bizarre outcome’which a straight-
forward application of the rule to the facts of the case would have engendered by
transforming a lease of otherwise uncertain duration into a 90-year tenancy.
THE FACTS AND THE LOWER COURTS
Mexfield Housing Co-operative Ltd was founded by a bank as a fully mutual
housing association as part of a mortgage rescue scheme. In 1993, Mexfield
*School of Law, Singapore Management University.
1 L. Carroll, Alice’s Adventures in Wonderland (London: Macmillan, 1865) 85.
2 K. Gray and S. F. Gray, Elements of Land Law (Oxford:OUP, 5th ed, 2009) 326.
3 [1992] 2 AC 386.
4ibid, 396.
5 Gray and Gray, n 2 above, 326.
6 [2011] UKSC 52.
Kelvin F. K. Low
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 401
(2012) 75(3) MLR 387–436
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