4Leases -

contract, property and status

Stuart Bridge

Introduction

Tlrt' least: straddres the worrds of contract and property. It is an estate theduration of which is determined by the agreernent of the landlord and thetcnant lt is.also highry-significant as a stih-rs, tenants e.jof.g rights a,dirrt:urring obligations that are denied to oihers. The raw of leases isextra.rd.i.arily comprex, and the search for order out of the inherent chaoscan at times seem an almost futire exercise. The studerrt of land la*latwhrrn this b.ok is prirrcipaily directed) tends to concentrate on the ,generalprirrciprles' affecting the reasehord reiationship, coverirrg important con_ceptual matters as the defining characteristicr' of a teus.] tnJ "rtrr" ,raextent of certain leasehold obrigations, the proprietary impact or i.ur.r, tiuenforceability of leasehord coienants by'ani again.st successors to theoriginal parties, and the termina'on of thl rease ui""u."i" qri,,'i"riJr*.for tenant defaurt, surrender and so forth. It is inevitabre tt

"t ini, "*pr.*i,3i,-S:l*rt principles' provides a view of the iaw of landlord and tenantwnlcn rs some wav removed from the practical realities of the leasehoiarelationship' one otvious divergence ,"ri*L, to r".urity of tenure. It mav be,lyl *:o1{"g ro the ,Sgnerul-principles,,. f".* .i'. t;;;;.#;,notice, but there may be statutory restrictions on such terminatior,.,r, ao",it necessarily forrowihat relovery of possession ensues upon termination ofthe lease' The landrord and tenint piactitioner must be aware that specifictypes of lease are dealt with by statute in very Jfff".*i'*"rr;i';#,e, graf ted on to the'genera.l nuri 3r" principles r^iru.f, _ry .. ;;; #;;;according to the specific kirid of lease.r

I The traclitionar demarcation of randkrrd and tenant law into ,generar pnncipres. andspt'cific parts has bcen recentry critici.sed by peter sfarkes who advocates whoresaredispcnsation with the'generar part'and division nr,rr"'..oru into a threefold crassificationof commerciar reases, short residentiar r*."r una-inng";idential leases: A Ncw landrorrtand Tmnnt lazu (2001, Hart).

Leases -

contract, proputy and status

Not only are there are many statutory regimes, it is also the case thatthe formality of the relationship (and the length of the term) is highlyvariable. Residential accommodation such as bed-sits are frequently let on'periodic tenancy', where the tenant pays rent on a periodic basis and thelandlord-tenant relationship continues until either par[y determines it byserving written notice on the other. Commercial ProPerfy, such as offices,shops and garages, is more likely to be let on a 'fixed-term tenancy' forfive, or ten, or fifteen years. The rent may be subject to review pursuant toa preordained procedure at defined intervals during the lease. Then thereis the 'long lease', used principally in relation to developments of housesor flats, which involves the grant of a lease for hundreds, sometimesthousands, of years, in consideration of the payment of a capital sumknown as a premium and a 'ground-r'ent'. These Ieasehold interests areconceptually much closer to freeholds (the so-called'fee simple absolutein possession') than periodic tenancies, and they are traded on thehousing market in much the same way.

This chapter is intended to take the land law student on a brief iourneyinto the territory of the landlord and tenant practitioner, to illustrate thediversity of the landlord-tenant relationship, and the difficulties of policythe law is continuing to address.

The lease as property

The student of land law sees the lease as part and parcel of the law ofproperry.2 It is an estate, indeed as a 'term of years absolute' it is one ofihe-only fwo legal estates capable of being created.3 Although a deed isusually necessary to create a legal estate, there is a major exception infavour of leases taking effect in possession for a term not exceeding threeyears at the best rent which can be reasonably obtained without taking afine.a Such leases, even if created by parol, may nevertheless compriselegal estates. Thus almost all periodic tenanc(es and fixed-term tenanciesfor three years or less will take effect as legal estates. But in the event of alease not complying with necessary statutory formalities, it will be at bestan equitable interest. The classic examp-le of an equitable lease is where,pursuant to the rule inWalsh v. Lonsdnle,t a landlord agrees to grant a leaseto a tenant (for a term exceeding three years), but no deed is executed.Equity 'looks on as done that which ought to be done', and thus the

2 Historically, leases were 'chattels real' and formed part of the law of personalty: seeHarwood,'Leases: are they still really real?' (2000) LS 503.

3 Law of Property Act 1925, s. 1 (1).t lbid., s,54 (2).s (1882) 21 Ch D 9,

99

1oo land Lauagreement, if specifically enforceable,6 will take effect as a lease in equity.The equitable lease is an estate contract for the purposes or tne LanaCharges Acr 1972, as it is a contract to create a legal estate, urra *n"." iitt"to the land is unregistered the lease shourd be rigistered'as a Class C 1iv;land charge.' A failure to register win result in tf,e equitable lease beingvoid. against a purchaser for money or money's wort'h of the landlord,slegal estate.E

In the more usual sifuation, where title to the land is registered, a leasecan be.protected by registration in two ways. First, it is poiibte to registera leasehold interest in land where the lease is for a term of years uur?t"t"of which more than 21 years.are unexpired.e In this .ur", "th" r"girt"reatitle is leasehold. Secondly, it is possible

-to register notice of u te#e s"rr"where the term is an overridinglnterest.ro A l-egal rease wilr tut" ufieci usan overriding interest where it is granted for a term not exceedins 21years." lt is thus possible to register by way of notice a legal lease irithov.er 21 years unexpired pending substantive registration of"the leaseholdtitle, and to.register by way of notice an equitabli lease. An equitaute Ieasemay also take effect as an overriding interlst where the tenant is in actualoc'cupation of the land or in receipt of the rents and profits thereof, savewhere inquiry is made of the tenant and the rights are not aisctoseJ.r,The protection afforded to those holding both legir and equitable l"ases isexcellent. rt is perfectly logical to offei those frolding a legal lease'thesecurity of an overriding interest, as where title is uniegiste"red the legallease will bind all-comers. where the lease is equitab'ie, the tenant"isnevertheless likely to be protected, as the nature oi the lease is such thathe or she will usually either be occupying the property or be receivingrent as a result of subJetting.

The position of those holding leases wilr be significantly affected whenthe Larrd Registration Act2002comes in force. In an attempt to encouragethe registration of all significant estates, almost all leaies for a ter'mexc'eeding seven years will require substantive registration.13 such leaseswill beco,re registered estates/ the leaseholder or tenant registering his orh.r interest by way .f notice against the title .f his or iier imriediatelandl,rtl. ovcrriding status wiil be accorcled to reases grantetl for a term.rt exct'ecli.g sev.,n years.'4 This expressio. in.rplies thit such leases must" f lris will rcrluire tlre agrceme,t, if made on or afrerzT september 19g9, to be made in

writi^8, i,c,rp.rati,g all the ternrs in ,ne d.cument (or two, where contracts are.

cxchangt'tl): [,lw of l,roperty (Miscellaneous provisions) Act 19g9, s. 2./ l..trttl Clrargt,s Act lt)72, s.2,t l.lil., s.4 (tt); llotlittgtott tsros Ltt v. Modes 11951) 2 TLR 691, 119511 2 Alt ER 528 n." l..ul(l l(cgistrntion Act 1925, s. 8 (l), as amended.l(rl0il,, s,4tt.

tt llil., s 7(t (l) (k); stt City prnulent Builtring society v. Miilcr Irgs2lCh 840, limiring thea;-:plicatiorr ol this provisiun kr legal leases.

rr l-lntl l(igistrntion Act 1925, s, 70 (1) (g),rr Larrtl l(egistration Act 2002, s. e) (c).ra Larrd l(egistration nct 2002, Sched.1, para 1, Schecl.3, para 1.

. kases -

contract, proputy and status 101be legal.ls The equitable tenant who fails to enter a notice will have toestablish that he or she was in acfual occupation

- the receipt of rents and

profits will no longer suffice.It is important to realise, not least because it is rarely the actual issue in

the cases, that an occupier of land who wishes to assert occupationalrights against purchasers or mortgagees of a superior interest will almostalways be seeking to establish the existence of a lease, The distinctionbetween the lease and the licence has been of central importance to landlawyers in drawing the line between an estate in land which is, as wehave seen above, potentially binding on purchasers or mortgagees of thereversion (in other words, an interest in property) and a mere agreementbetween two parties which is mutually enforceable but which lacks theelement of 'durability'." It is an over-simplification"_to suggest thatlicences have no proprietary consequences whatsoever," but courts havein recent years rejected earlier attempts (of Lord Denning in particularrs)to promote the contractual licence to the level of a property interest.leHowever that is not to deny all extra-contracfual significance to licences:for example, certain kinds of licensee have been accorded the right toprotect their possession in the tort of trespass,2o

When Mr Roger Street, a solicitor of the Supreme Court, agreed on 7March 1983 to allow Mrs Wendy Mountford to occupy a fumished roomhe owned in Boscombe for a weekly payment of 37, neither could haveimagined that the dispute over the true effect of this contractualarrangement would be ultimately decided by the House of Lords, andwould become the leading case in English law on the definitionalcharacteristics of the 1ease.21 The argument between the parties was

ts See Cify Permanent Building Society v. Miller, [19521 Ch 840,to See Hill, 'The proprietary character of possession' in Proper$ 2C0l0 (2001, Hart). A tenant is

to be regarded as in actual occupation only if he, his agent or employee is physicallypresent therc.

17 See, for instance, Hill (up, cil. above fn. M)- p,22. 'tt8 Erringlon v. Errington [1952] 1 KB 290 at299 ('Neither the licensor nor anyone who claims

through him c'an disregard the contract except a purchaser for value without notice.') SeealsoBirriorrsv. Ilwutsll972lCh359;DHNFoodDistribut'trsLtdv.TowerHaniletsLBC119T6ll,WLlt 852; Rc Sharpe (A lJnnkrupt) [19801 I WLR 219, Lyus v. Prowsa Deuelopnents LtLl 11.98211,wLR 1044.

te Ashburn Anstalt v. Arrtold [19891 Ch 1 at13-27, pcr Fox LJ. There rernaitrs thepossibility, inlimited circumstances, of the imposition of a constructive trust to give effect tocontractually agreed stipulations. See. for further developments, Camden LBC v, ShortliJeCornnunity Housing ("1992) 90 LGR 358 at 373; Canadian lnryerial Bank of Commerce v. tsello(1992) 64 P & CR 48 at 51. There is an extensive academic literature on this subject,c

102 Land Lawwhether the agreement entered into comprised a lease or a ricence, butthe wider issue was wlrether it was possibre to contract ori oi tl-,ustatutory regime of the Rent Acts which was then _iaefy uppli.JI" ,oprivate sector reside^tial rettings.z2 By the Rent Act 1972,;, rilsrrri".t t.tlris Part of this Act, a tenancy u.,dur *hi.*, a dwering-horr. i*r.',.i,

"r.yb* a house or part of a house) is let as.a separate aw"etting i, . pr"i""t"al"l]lf].y for the p.urposes of this Act,, In ihe eve,t of Mrs Mou.tfordravrng a protected tenancy, she courd seek to rrave a'fair rerrt, registeredin respect of trre property)as a result of which Mr street wourd be unabreto enforce the contractuaily stipurated sum of eaz.ui"-*o-JL"r".i u"bound by the rent officer's issessment of what rent was reasonabre,almost inevitably at a rower sum than that agreed, and he courd not react:: y:r Mountford's application by seeking io rerminate their agreementand.to-recover possession as she would bI accorded statutory #curitv.Mr Street's view of the Renr Acts was srridently

";p;;J'i";-#;",

1()4 Land Lnwit is a. cxagger.tion to dc'scribe the status of 'lodger, as ,criticailyinrpr1111111',2't a.d subseclue.t to srreer v. Moutttford, the Court of Appear^'rs

s*ghr t. pray crowri tl.rc significance of the'loJger, "-pi-rrJi"'iir.,",it is..wlrctht'r ir pc.s()rl is a riceniee or a tenant thatls cruciar.3o ----o -

.'l'he tel,1'rtati.n of randrords to atternpt to deny "xcrusive possessionwlrrrc rlrcy were negotiating with more tiran a single occupier has arwaysbce. stro.g. In the 1970s ih" d"rri"e of the ,noi_e*.trriuu ;;;;;t""irgreenre.t' had evolved, whereby the landlord required , .rrpiI *n"i,terrdc'd to coh,bit to. sign sepirate documents, usualy in identical

::lT-r,,f-k""wledging that they,lgreed to share the property _iin-r".flurner llcensees whom- the landlord should permit to ur" ii. The high-water rnark of these aqreements was the decision or *,e iorrt .ierr'".rin. Son t mn v. H azelhu rs t,3 | which.was subsequently ou..rrtJ [f ,L']iJir"of Lords in street v. Mountford on the grtu"ar tnrt ttt"

^ti""-""t, r"question were obviously sham and werJ not intended to uE ucteJ-uponby_ the parties thereto. The usual construction of such ugru;-[.rt,following street v, Mountford is as a joint grant of excrusive possession toth.e lvo occupiers.32 Thui, in Antoniades ulViilirrr,rl r;;.;;;;ffif.who had signed two identical written agreements permitting the landrordto occupy the rooms himself at any-time, and permitting otfrer p".ror,, touse them with the licensee were heid to have been jointly"gra.rt"i

"*"iusu"possession of the property. The agreements were cleariy"interdep"iJ.^t.Had one member of the-couple refused to sign thei, agreem"nt-r'h";h".would have been denied the opportunity to?o so.

when, as Mr Street himself had antiiipated,3a a later court was calledupon to consider in detair th-e impricitions of the centrality oi tn.e-xclusive possession concept_where multiple occupiers were concerned,the decision of the House of Lords in AG Securities'v. Vaughan, i"t;;i;;r,v' villiers comprised both a justification and an exposition"of the radicallyinterventionist approach to the construction of agreements providing forthe occupation of residential property initially advocated' in s*irt u.Mountfard.In the earlier case, Lord t"*pr"*an had articurated the natureof the problem:

Although the Rent Acts must not be allowed to arter or influence theconstruction of an agreement, the court should, in my opinion, be asfute todetect and frustrate sham devices and artificial transactions whose only obiectis to disguise the grant of a tenancy and to evade the Rent il;;. - -'- "-"2" Cray anci Cray, p.365.:\u l.lntoktr Stttlt'l irsa;tc,.s v. Avus (1997) 54 p & CR 1,65 at")69_^170; Ilicolaon v. pitt (1ggg) 21I ILI( 4lJ7 ar 493.3t lt978l I Wi.ii tu14,:t2 lirr an .x(tpron. st't' Miktoucr Lt:r u. Brady [19g9r3 A]l ER 61g (nc uniiy of interest as ihe".

ln:li:1 weft'(g,,nuinely) srvera[y liable ior the ient),33 lt990l t AC.iir.3i l l9t35l ('onv 32tt ar 333.

Leases -

contract, property and status 105This approach was justifiable, as was hinted in Street v. Mountt'ord,by

the imbalance in the respective bargaining positions of landlord andoccupier who, in a situation where demand for housing exceeds supply,'may concur in any expression of intention in order to obtain shelter'.3sThus, where two persons have signed separate documents providingthem with accommodation, the court deciding whether a tenancy orlicence has been created 'must consider the surrounding circumstances,including any relationship between the prospective occupiers, the courseof negotiations and the nature and extent of the accommodation and theintended and actual mode of occupation of the accommodation'.36 It iseven legitimate to take account of the parties' subsequent conduct, not toconstrue the terms of their contract but to determine whether thedocuments were or were not genuine and, if not, which terms of theirwritten agreement were seriously intended to be acted upon.37

Although the House of Lords in both Street v. Mountford and .4GSecurities v. Vaughan refused to give their views on the impact of the RentActs on the availability of housing,3s the combined effect of thesedecisions was to make it well nigh impossible for private sector landlordsto avoid the Rent Acts and other protective legislation, at least by thedevice of denying tenant status to the occupiers of their property.However, a few months after the House of Lords handed down itsdecision in AG Securities, legislation came into force that renderedavoidance of the Rent Acts themselves no longer necessary, and whichlargely removed the landlords' incentive to prefer licensees to tenants.Although these decisions are still of major significance in expounding thelease/icence distinction, and thereby the definition of the leaseholdestate, their implications in terms of status, the reason why the disputeswere litigated, have changed significantly.

The lease as status\The status-conferring dimension of the landlord-tenant relationship isgiven little attention in modern land law courses. Yet, as we hope hasbeen already observed, the leading cases have frequently been motivatedby a desire on the part of the landlord to avoid legislative status and, aswe shall see in due course, there are many other cases where the courtshave been faced with the interaction of the general principles of landlord

3s Per Lord Tenrpleman in AC Securitics v. Vaughan at p. 458.3b lbid.37 Pcr Lod C)liver in AC Securitits v. Vaughan ar p. 469.38 "Ihc court lacks the knowledge and the power to form any judgment on these arguments

which fall to bc considered and determined by Parliarnent. The duty oI the court is toctrforcc ttre Acts...' pr,,, Lord Templeman in ibid. at 459.

106 Land Lawand tenant law with specific statutory provisions that apply to certainkinds of lease. The landlord-tenant relationship does not exist within avacuum, it exists within a factual context, and the type of property let (ahouse, a flat, a farm, an office), for instance, will make considerabledifferences to the legal regime applicable. There is insufficient space hereto do justice to the multifarious forms of statutory intervention in thelandlord*tenant relafionship. However, it may be useful to mention threeparticular areas in an attempt to show how the legal background hasmoved or1, even since the days of Street v, Mountt'ord, to illustrate why it isthat private sector residential landlords have changed their practices, andto compare the operation of principle in the residential sector of propertywith that in the commercial field,

Part I of the Housing Act 1988 came into force on 15 January 1989, lessthan four years after the decision in Street v. Mountford. The Conservativegovernment had taken the view that the decline in the private rentedsector of residential property was attributable to the impact of rentcontrol, and that any revival would require landlords to obtain acommercial retum for their investment.3e The 1988 Act sought to phaseout the Rent Acts by providing that tenancies granted after the legislationcame into force would be taken out of the operation of the Acts altogether.Instead, a new regime of letting, known as the 'assured tenancy', wou]dapply to them, pursuant to which landlords could charge whatever rentthe tenant agreed to pay,ao The assured tenant was given statutorysecurity and a limited form of succession on death was also enacted. Eightyears later, by tl're Housing Act 1996, the statutory security of privatesector tenants was dealt a furtl'rer blow. As from 28 February 1,997, anynew tenancy was to take effect as an 'assured shorthold tenancy', unlessthe parties expressly agreed otherwise, under which the Iandlord canrecover possession once any fixed term has expired by giving notice of asufficient length. The legislative matrix is extremely convoluted, but thesum effect is clear. Since the enactment of the Housing Act 1988 there hasbeen a highly significant diurinution in the statutory rights of the tenantof residential property in the private sector. The spectre of the Rent Acts,which cast a long shadow over residential lettings, has.been vanquished,and market forces are now allowed to prevail. Over tl're course of the lastdecade, private sector landlords have ceased to care whether they granttenancies or licences.

The Rent Acts have not entirely disappeared from the picture. Indeed,their continued existence is in some way a tribute to the potency of the

3e Housing; The Govemment's Proposals (19871, Cm 214,a0 Althouglr the Court of Appeal has recently shown a readiness to reiect escalating rent

provisions where the term is not seriously irrtended to be acted upon the parties, but hasbcen included b facilitate the recovery of possession by the landlord: Banhmy Proy:rticsLtd v. Penlold-Dunsfonl lZ00Zl 1 WLR 1369. See Bright [2002] CLJ 146,

107Lcascs - cttntrncl, yroyultl and stntus

statutory rights they ctttrfcrrccl' Not

108 Land Lawtuf the tenant's right to buy the reversion of their landlord,a6 Thus therenrose, in the public sector, the status of 'secure tenant', conferring securityof tenure, rights to exchange tenancies, and succession rights on death.a

The numerous systems of security operative in both private and publicscctors of housing have been criticised as being unnecessarily complex,and as contributing to cost and delay in the courts. The case for reformanc'l coclifictrtion has been strong for some years, and Lord Woolfrecomrnended in 1996 that a review of housing law should be carried outby the Law Commission 'with a view to consolidating the variousstatutory and other provisions in a clear and straightforward form'. Thelaw reform process is now in train.a8 A'scoping Paper' was published bythe Law Commission in March 2001, heralding a 'comprehensive review'of housing law, leading to the development of law reform proposals for itssimplification and modernisation. The first Consultation Paperae containshighly significant provisional proposals for the promulgation of a newscheme providing for the security of residential occupiers in the publicand private sectors.

Where the commercial sector of lettings is concerned, statutoryprotection is given to tenants by virtue of Part II of the Landlord andTenant Act 1954.s0 This legislation was initially enacted to provide businesstenants with some security beyond that conferred by the lease, as it was feltto be in the interests of the economy as a whole.sl It applies to'any tenancywhere the property comprised in the tenanry is or includes premises whichare occupied by the tenant and are so ocflrpied for the p^urposes of abusiness carried on by him or for those and other purposes'."'Business' iswidely defined to include a trade, profession or employment, and itincludes any activity carried on by a body of persons, whether corporate orunincorporate.s3 Part II of the 1954 Act does not interfere with the termsfreely negotiated between landlord and tenant

- there is no rent control

machinery. However, the landlord's right to recover possession is reshictedby the statute, which directs that a business tenancy 'sha.ll not come to aneird' urrless it is terminated in accordance with the provisions of the Act.ilThus, a fixed-term tenancy will continue by force of statute on itscontrachral expiry date provided that the tenant does not cease to occupythe premises for business purposes.

r1,Ilousing Act 1980.{7'l'hc provisions are now to be found in the Housing Act 1985, Parts IV and V.'f 8 See tlrc Law Cornmissiort's 35th Annual Report, 2000, para. 1.46 and text below.'r'/ Law Ctrnrnissicrn Consultarion Paper No. 162, Rentittg Ilorues'L: Status and Secrtrity.5t) For the proposed reform of this statute, currendy subject to a consultation exercise, see

text below.$r llor au excellent short hisiory uf stahltory control of business tenancies, seo Hatey (1999)

t9 LS 207.52 Landlord and Tenant Act tr954, s. 23 (1).r,:t Ibid,, s. 23 (2).rq lbicl., s. 24 (l),

Leases -

contract, property and status 109It remains possible for the landlord to terminate the lease by forfeiture,

and for the fenant to terminate by giving notice or by surrender, butotherwise the special statutory machinery must be used. This requires thelandlord to givi not less than six nor more than 12 months' notice in thestatutorily piescribed form (the's. 25 notice') to expire,not earlier than thedate when the tenancv could have been determined by notice to quit/ orwould have expired.Ss Tle tenant may respond to such a notice byclaiming a new tenancy.56 On application by the tenant for a--newtenancy] the landlord.rr, oppor" onfy ot certain statutory grounds'v Thecourt has jurisdiction to determine the terms of any new tenancy that isgranted, ind will exercise that jurisdiction utilising its discretion withinIertain statutory Parameters, which Limits the maximum length of theterm of the new tenancy to L4 years.s8 Contracting out of the 1954 Act isexpressly prohibited.se Ii will be no surprise that landlords of commercialprbperty have from time to time attempted to confer licences rather thani"ur"r, on the basis that a licence would not confer the statutory rightsenjoyed by business tenants and that recovery of possession wouldultimately te rendered considerably simpler. Courts have usually strivento frustrite such attempts, and in doing so have adopted !h9.*q9t9ytapproach endorsed by the House of Lords ln stteet v. MountJord.ou Unlikethe residential tenaniy legislation, however, the 1954 Act does provide ameans of contractintr orri by obtaining the sanction of the court. Thissomewhat unusual procedure, which apglies only whele the tenancy tobe granted is'for a ierm of years certain',61 requires the parties to make aioirit application, and the court to give its blessing, prior to the lease beingL*".rt"i.u, It has been criticised. The function of the court in hearingapplications is unclear, and it is sometimes very difficult for parties to acommercial transaction to fit a court application, with the litigation andother risks involved, into the tight timetable fo1 completion of the lease.

ss lbid., s. 25. \56 This requires the tenant to give written notice to the landlord that he or she is not willing

togiveuppossessionofthe-premises,andtoapplytothecourtforanewtenancynotlesstt,u"r, t*o

"o. more than four months after recelpt of the s. 25 notice: 1954 Act,, ss. 25 (5),

2e (2), (3).sz lbid., s.30.sE lbitL., s.33,se lbid., s.38.60 Lorrdon tt Associnteti Lnueshnent Trust Plc v. Caluo [19851 2 EGLR 80; Vandersteen v. Agius

(1993) 65 P & CR 266. cf . R (Nationat Car Parks Ltd) a Trinity Deuelopment co (Banbury) Ltd,i:or.i ot Appeal, October 18 2001; [20011 2 EGLR 43, F{H Judge Rich QC'

o1 It has been recently tlecitled, resolving an issue of some doubt, tirat this phrase includesfixed-terxm tenancies containing a break clause exercisable by either or bolih parties:Metrapoiitan Poticc District Receiuer v. Palacegate pnlpetties !-td 12a011 Ch 13tr at 139; [2000] 3Atrl Efi.563 at 669,

62 Lanrllord aerd Tenant Aat 1954, s, 38 (4).

110 land LawAssur:rin1; tl'rat borth panties are ente:ring the ag'reenaemt with fullawarr.ness of its legal consequences (ideally by proof of receipt ofindepcllclgnl legal advice), does the excursion to coqrt serve any realpur[ros('? The court is not empowered nor entitled to consider the fairnessof tlrc bargairr the parties propose to make, rror is the provision intendedLo give the court-the right to dictate to the parties what the terms of thele;rse slrould be.r'3

The business tenancy legislation was reviewed by the Law Commis-sion in -l.992,64 The repoit co-ncluded that the legislation generally workedwell, and provided an effective code regulating the security of the tenantwith regard to commercial leases. Although certain reforms were thenproposed, no action was taken until November 2000, when anannouncement was made by the DETR that they intended to consulton the possible implementation of detailed improvements to Part II of theLandlord and Tenant Act 1954. A consultation paper was thenpublished,6s which made clear that the reforms being contemplatedflowed substantially from the l992Law Commission report.6 The reformsare detailed and, if enacted,6T will radically hansforrn-the way in whichconrmercial leases are negotiated and litigated. The most significant;:roposal involves the facilitation of contracting out of the legislativemaclrinery, The requirement that parties obtain the prior sanction of thecourt has been much criticised as serving little obvious purpose,6s and thegovernment now proposes that it would be possible to contract outprovided that the lease contained a prominent'health warningl informingthe tenant about the consequences of giving up the statutory rights ofrenewal and that a written acknowledgement was then signed by thetenant to the effect that he or she had read and understood thisstatement. While this reform will clearly be welcomed by thosenegotiating commercial

.leases, it remains to be seen whether thegovernment's desire that 'most business tenants should continue toenjoy securlty of tenure'will be frustrated by the ease with which such aprocedure can be utilised. If use of the 'health waming' becomes routineas parties (in particular landlords) realise that the statute provides nomore than a purely voluntary code, the significance of Part II of the

63 Mctropolitm Police District Recciaer v. Palacegate Properties Ltd [200"11 Ch 131 at 138; [2000] 3All ER {163 at 668 pcr Pill Ll.

6a Business Tcnancies: A Periodic Reuiew of the landlord arul Tenant Act 7g54, Part II, Law ComNo. 208.

6 Busincss Tenancies kgislation in Englnnil awt Wales -

Consuttation Paper, available on theIntemet at htfp://www.planning.deh.gov.uVconindex.htm

56 Law Com No, 208,57 It is currently intended to promulgate the reforms by use of the order-making procedure

recently instigated by the Regulatory Reform Act 2001.68 See, most recently, the comments of the Court of Appeal in Mctroynlitan Police District

Receiaar v. Palategate Propcttic,s Ltd 120011 Ch 131; [2000] 3 All ER 663.

Leases -

contract, properttl an.d status 111Landlord and Tenant Act 1,954 will be much diminished and theproposals for the streamlining of the statutory machinery extensivelyset out in the remainder of the consultation paper will have limitedimpact. Long exprerience in the area of landlord and tenant law hasshown that to allow the ready qualification or restriction of status bycontract will result in the exploitation of the comtnercially weaker prartywhom Parliament had intended to protect. The amendmc'rrt curretrtlycontemplated, if it takes effect, will give landlords the upper lrand, and itis possible that the proportion of commercial leases to which the stattrteapplies nray fall. The return to the free market, and tlre respcct tht'rebyaccorded to contractual autonomy, will reduce still further tlre sigrrifi-cance of status.

The agricultural lease has the longest history of statutory security, In arecent move that parallels that in the residential sector, there has bt'en attapplication of market ethos, and the system of security carefully builtaround the 'agricultural holding' has been dismantled in favour of the'farm business tenancy'. The Agricultural Holdings Act 1986 broadlyapplies to tenancies beginning before 1 September 1995, whereas tho$eentered into on or after that date will fall within the jurisdiction of theAgricultural Tenancies Act 1995. The 1986 Act rendered mandatory oneyeals notice to quit as a precondition to recovering possession of theholding, and prevented the operation of notices to quit save in certainstatutorily prescribed cases. This legislation incited landlords to attempt toavoid its impact, and some devices were well recognised and indeedaccepted by the courts.6e However, a simple statement that the tenant wasnot able to invoke the protective legislation (by serving a counter-noticeon the landlord in response to the notice to quit) was held to beineffective,To and the courts were prepared to strike down shams andcollusive arrangements with third parties designed to ob-viate theprotection the statute had intended to accord to the tenant.'r As withresidential tenancies, the incentive to avoid the legislative machinery hasnow disappeared following the relaxation'r of the consequences forlandlords. The landlord who grants a farm business tenancy can recoverpossession as of right by giving the appropriate 4egree of notice.72In the leading case of lohnson v. Moreton,'5 the House of Lordsconducted an illuminating analysis of the rationale for intervening withparties' freely negotiated agreements where the consequence of uphold-

6e For instance, a fixed-term tenanry for more than one year but less tlran two years fellwithin a legislative lacuna, giving rise to the so-called Gladstone v. Bowcr tenancy:Cladstone v. Bower 1796012 QB 384, sanctioned post-Slreef v. Mountford in EWP Ltd v. Moore[1ee2l QB 460.

70 Johnson v. Morcton [1980] AC 37.71 See, in particular, Gisbornc v. Burton [19891 QB 390,2 Agricultural Tenancies Act 1995. s. 5.7;t [19801 AC 37,

LLZ Lantl Lazuing thern would be the frustratiorr of the very objectives of the legislature.The tenant, who had entered inkr a lease of a farm for a term of ten years,had covenantc,d that he would give possession of the farm immediatelyupon determination of the term and that he would not serve a counter-notice or take any other steps to claim the benefit of any statutoryprovision granting security of tenure. Their Lordships held that the tenantcould not by the terms of the agreement deprive himself of theopportunity to exercise his statutory rights. There was a public interestwhich Parliament had clearly identified and which the agriculturalholdings legislation was intended to protect'for the sake of the soil andhusbandry of England of which both landlord and tenant are in a moral,though not of course a legal, sense the trustees for posterity'.Ta Nowhereis there a stronger assertion of the pre-eminence of statutory protectionover contractual autonomy, the famous speech of Lord Simon of Glaisdalebeing articulate, perceptive and humane:75

Gerrerally, tr man became a tenant rather than an owner-occupier because hiscircuurstancc,s compelled him to live hand-to.mouth; the landlord's purse wasgenerally longer and his command of knowledge and counsel far gteater thanthe tenint's. In short, it was held, the constriction of the market and theinequality of bargaining power enabled the landlord to dictate contractualterms which clid not necessarily operate to the general benefit of society. It wasto counterilct this descried constriction of the market and to redress thisc{escried inetluality of bargaining power that the law

- specifically in the shape

of legislatiorr, came to intervene repeatedly to modify freedom of contractbetween landlord and tenant. Since Maine, the movement of many'progressive' societies has been reversed.

'l'he, nrovement from status to contract was largely a creature of the commonlaw. 'fhe reverse movement has been largely a creature of legislation. As a resultlawyers sonretimes tend to regard freedom and sanctity of contract as still ofspecial and supervening juristic value. But freedom of contract and itscorlse(luences are quite likely to be 'mischiefs' as that word is used in statutoryconstruction.

Muclr has changed in the 20 years since Johnsan v. Moreton. It can be seen,with the benefit of hindsight that, in its overt hostility to attempts tocontract out of protective legislation, Street v. Mountford was the high-watermark for status. Since then, with the phasing out of Rent Act protection inthe residential sphere, the widespread invocation of essentially 'contrac-tual' assured shorthold tenancies and the commercialisation of agriculturallettings, the rnovernemt has been very rxluch back in the direcdon ofcontract. The enactment of the proposed reforms to ttrte business tenancylegislation will be a further step along the road to a free market.

74 lbid. pel Lord Hailsham at 59.7s lbid, at 66 et stq.

Leases -

contract, property aild status "113

The lease as contract

The lease is an estate the duration of which is determined by theagreement of the landlord and the tenant. Thus the lease is both an estateand a contract. The extent to which the contractual aspect of the lease caninfluence and affect other legal consequences of the leasehold relation-ship has been placed in sharp focus in recent years. Although the leasehal always been viewed as a somewhat amphibious concePt, as suggestedby its one-time categorisation in the list of 'chattels real', the contractualflavour of the lease was traditionally of less significance than its proPertydimension. Once the tenant had been granted the legal estate,'it was feltthat the contract had been comfleted, and so the estate rather than thecontract then governed the ensuing relationship' This was exemplified bycertain speeches in Leighton's lnoestment Trust Ltd v. Cricklewood Propertyand lnaeitment Trust Lid76 denying the applicability of the contractualdoctrine of frustration to leases generally. The effect of the dominance ofthe estate over the contract was to limit not only doctrines but alsoremedies. While certain remedies were viewed as distinctive incidents ofthe landlord-tenant relationship, such as dishess for non-payment of rentand forfeiture (with its associated discretion to relieve tenants and othersfrom the consequences of breach of covenant), other more Seneralremedies were not considered to be available. The essential preoccupationof the law of leases was with the 'possession*rent' relationship," Thelandlord 'granted' exclusive possession of the land to the tenant, and'reserved' ient to be payable out of the land in retum. While the languageof the lease might tate the foim of contract (the tenant covenanting to paythe rent), the essence of the relationship was proprietary, and littleconcem was expressed for the fulfilment of the parties' contractualexpectations.

Ye! as has been seen in the USA, the influx of contractual thinking canhave enormous influence on the definition and development of the rightsof residential tenants. ln lauins v' First NationakReatty Corp.,'u the landlordargued that the common law implied no conditions as to the fitness orrepair of demised premises, and that in the absence of express obligationsin the lease document itself the landlord was under no liability tomaintain the condition of the propetty: caawt emptor. The Dishict ofColumbia Court of Appeals held that the common law rule was obsoletein the light of the realities of modem living. A residential lease was not forthe use of land as such, but for the occuPation of a habitable dwellingwith the services one would exPect. d lease of a dwelling-house or flatshould be equated to a consun&er contract, ae'rd. it r,rias consistemt with

76 119431 KB 493,77 Bright and Gilbert, p.78 ei seq.78 (x970) 138 App DC 369.

114 Land Lawmodem attitudes to the protection of consumer expectations that thelandlord should warrant the habitabilily of the premises in question.Moreover, breach of the warranty would give rise, to contractual rlmediesagainst the landlord:

stripped to its essentials, the doctrine rejects the premise that a lease is only atransfer of land to be governed by special principles of real property liw.Instead, the implied warrangr of habitability theory heats the transfer of thedemised premises as analogous to a sale of goods, and protects the expectationsof the landlord and the tenant by appllng ordinary notions of contract lawincluding mutual dependency of lease covenants.

The application of contractual doctrine to Ieases by the English courts hasbeen somewhat more hesitant, and certainly less exuberant. ln Lioerpool.City Council v. lrwin,so decided by the House of Lords in 1,976, a landlordlocal authority had no formal document of lease detailing the respectiverights and obligations of the parties, but merely sent each of its tenants alist of 'conditions' by which the tenant was to abide. A tenant of a flatcomplained about the state and condition of the common parts of theblo

116 Land Lawgiving rrotice to deterrnine their right to exclusive possession of the flat. Asjoinl tcrrarrts, thcy are treated by the outside world as if they were a single()wne r', lrrcl thcrefore kl discontinue the tenancy would require the will oflrotlr (ol nll) thc joint tenirnts. If the lease was viewed as contract/ thetrrril,rlt,rirl clt'cision by one tenant to remove himself from liability for thelt'rrl ,rrrtl other covcni-rnts should be respected.s6 The House of Lords, inlrrrltlirrli thitl a rtotice by one joint tenant was indeed sufficient tott,rrrrirr,rIt' tlrt, lt'nsc, ndopted a contract-based approach, emphasising that,r lt,.rst' slrotrkl be treated no differently from any other kind of contract:'As ,r rrrattt,r' of principle I see no reason why this question should receivenny tlifferent an$wer irr the context of the contractual relationship oflandlord and tt,nant than that it would receive in any other contractualcontext.'87 One remedy that could be extremely useiul, particularly fortenants, was terminating the lease in response to a serious'repudiatory'breach of covenant by the landlord. It would be most unlikely that thelease, drafted no doubt by the landlord, would contain such a right,although it would of course allow the landlord to forfeit and re-enter inthe event of rron-payment of rent or breach of covenant by the tenant. InHussnin v. Malilnmn,88 Stephen Sedley QC, as he then was,8e held that atenant could respond to the landlord's failure to comply with, in this case,statutory repairing obligations by terminating the tenancy, giving upvacant possession and returning the keys to the landlord. Such actionwould thereupon extinguish the tenant's future rental liability. Thishistoric decision, albeit arrived at in the county court, is tightly reasonedand is based on an essentially contractual vision of the residentialtenancy. The Court of Appeal has given its express sanction to this radicalapproach, which has been applied in the context of commercial as well aslesiclential leases.eo

The process of contractualisation of leases was now growing apace.Frustration, rescission for fraud, termination for breach, implication ofterms for business efficacy (contractual doctrines all) have been applied inrecent years to leases, unobjectionably in my view, on the ground that alease is as much a contract as an estate.el But the coup de jv,rce, or somernight say the reductio ad absurdum, of the contractualists, was to come in

80 See in particular Lord Browne-Wilkinson at 491,492,8z lbil. pt'r Lord Bridge at 483.ut 1t992) 2 EGLR 87.8e The successful counsel for the respondent local authority \n Monk, Stephen Sedley QC,

has since been elevated to the judiciary and is currently a member of the Court of Appeal.e0 I7e olyrtpic & York Canary what Ltd (No 2) [1993] BCC 159 at 166; Kittgston upon Thames

RLBC v. Marlozu [1996] 1 EGLR 101 at 102; Chartered Trust plc v. Daoics [19971 2 EGLR 83;Nynehead Dnelopmeuts Ltd v. R.H. Fibreboard Containers Ltd 11,99911 EGLR 7.

er See alsu the central role assumed by contract in the future version of the landlord-occupier relationship in Law Commission Consultation Paper NIo 1,52, Renting H0me,1,.32et seg Part Vl.

Leases -

contract, propetty and status L17the decision of the House oi Lords in Bruton v. London I Quadrant HousingTrust.ez A lease is a contract, and it may be nothing more than a contract. Itneed not be an estate at all.

A local authority granted a charitable housing trust a licence to use ablock of flats (which had been compulsorily acquired) to provide short-term accommodation for the homeless. No estate or interest in the landwas granted to the defendant trust. The defendants then entered into awritten agleement with the plaintiff for occupation of a flat in the block.The agreement, which purported to confer a 'weekly licence' on theplaintiff, explained the arrangement with the council and expressed acondition that the plaintiff would vacate uPon receiving reasonable noticefrom the defendants of 'not normally less than four weeks" The plaintiffalso agreed to allow the defendants, their staff and agents access'at alltimes during normal working hours. .. for all Pu{poses connected withthe work of the trus{. Seven years after entering into occupation, theplaintiff brought proceedings in the county court claiming damagesagainst the defendant trust for breach of the covenant to repair implied bystatutee3 into leases of dwellinghouses for a term of less than seven years,The defendant raised as a preliminary issue that the plaintiff occupied asa licensee and did not have a lease. Successful in this contention beforethe county court and the Court of Appeal,ea the defendants lost before theHouse of Lords.

Lord Hoffman, giving the leading speech, held that the agreementconferred exclusive possession on the occupier. Under normal Street v,Mountford principles, therefore, this would be a tenancy unless 'specialcircumstances' could be shown. Lord Hoffman rightly rejected thedefendant's argument that the identity of the landlord, or its agreementwith the council not to Erant tenancies, or the plaintiffs agreement thathe was not to be a tenant, comprised'special circumstances', But he wenton to hold, much more controversiallY, that the defendant's lack of anyproperty interest in the land was immateriaf. Although the defendantirust could not grant a legal estate in the land, the plaintiff hadnevertheless obtained a lease in the flat.

Lord Hoffmann advanced two arguments in support of this result.First, the term 'lease' (or 'tenancy') refers to a bilateral relationshipbetween the landlord and the tenant, and nothing more:

It is not concerned with the question of whether the agreement creates anestate or other proprietary interest which may be binding uPon third parties. Alease may, and usually does,,create a proprietary interest called a leaseholdestate or, technically, a 'term of years absolute'. This will depend upon whethet

sz 1Z00Al 1 AC 406. For comment and criticism, see BriSht (2000) 116 LQR 7; Dixon [2000] CLJ25; Rook [1999] Conv. 517.

g3 Landlord and Tenant Act 1985, s. 11.e4 [1998] Qts 834, [1997] 4 All Et{ 970, Kennedy and Milleit I-1, Sir Brian Neill dissenHng.

118 land lawthe landlord had an interest out of which he could grant it. Nemo dat quod nonhabet. But it is the fact that the agreement is a lease which creates theproprietary interest. It is putting the cart before the horse to say that whetherthe agreement is a lease depends upon whether it creates a proprietaryinterest.es

This has been aptly described as advancing a 'relative' or 'relational'concept of exclusive possession, pursuant to which the court asks simplywhether the occupier has exclusive possession as against their immediatelandlord,e6 By adopting this focused approach, it is possible toconcentrate on the two parties to the contract and to disregard widerissues such as capacity to grant a proprietary interest. But its undoubtedeffect is to recognise that an agleement which does not confer an estate inthe property can nevertheless be a lease. This kind of lease, being non-proprietary, is unique.

Lord Hoffmann held that a tenancy also arose by virtue of estoppel.Here, the articulation of principle ('it is not the estoppel which creates thetena!_cy, but the tenancy which creates the estoppel') is unexception-able.'/ But its application to the facts of the case is. While it may benecessary for there to be a tenancy to create the estoppel, there was notenancy in Bruton, for the reasons given above. There are two acceptedcircumstances in which a tenancy by estoppel may arise. The estoppelmay be by deed (the grantor being precluded hom disputing the validityof his or her grantes), or by representation (the grantor being estopped byan unambiguous and material representation as to his or her title on thestrength of which the tenant takes a lease). The facts of Bruton cannot beforced into either analysis. The trust took great care to communicate thelimited nature of their interest in the flat to the irlaintiff, and throughoutthe agreement referred to him only as a licensee. The trust had neverpurported to grant the plaintiff a tenancy

- on the contrary.lm

es 120001 1 AC 406. at 415.er See BriSht (2000) 116 LQR 7.e7 For subsequent citation by way of approval, see Wroe A/a Telepowu) v, Exuos Coaer Ltd

J20001 EGLR 66,eB F irst Nat ional Bank plc v. Thompson [1995) Ch 237 at 237.ee See Harpum, Megarry B Wade: The law of Real Property,6m ed., Z)00, Sweet & Maxwell,

para. 14.095.1m Millett LJ set out the position lucidly in the Court of Appeal:'In the present case both

parties knew that the trust had no title and could not grant a tenancy, That is notsufficient to prevent the creation of a tenancy by estoppel. But the trust did not purpo* togrant a tenancy, The document was carefully drawn by the trust and accepted by MrBruton as a licence. There is no inconsistency between the terms of the document and thetrust's assertion that it has not granted a tenancy. There is no ground for holding that theparties must be taken to have adopted an assumed basis for the transaction, They did notagree that the trust should grant a tenancy even though it had no title; they agreed that itshould grant a licence because it could not grant a tenancy.'

kases -

contract, property anil status 179Lord Jauncey, supporting Lord Hoffmann, felt persuaded by the result

of the Court oi Appeut decision in Family Housiig Association v. lones,lolwhere on similar facts 'special circumstances' were found not to exist.However, counsel for the landlord in lones did not argue the significanceof the landlord having no title: it was decided on the basis that theidentity and function of the particular landlord did not prevent the grantof a tenancy on the facts of the particular case

- a perfectly satisfactory

application of reasoning to the arguments that were advanced.lo2 LordFioffmunn" dismissal oi counsel for the defendant's argument in Brutorithat Joncs was therefore immaterial is cursory. The failure to advance anargument along the lines of Bruton in the earlier case was, according toLord Hoffman,'easily explained by the fact that-the grantols title or lackof title was irrelevani to the issue in the case'.103

The one speech that takes a slightly different tack is that of LordHobhouse. As befits a commercial judge, he adopts what might bedescribed as a 'contractual' approach. The claim was to enforce acontractual course of action. The existence of a contractual relationship oflandlord and tenant sufficed to trigger the statutory implication of therepairing covenant. The housing trust had capacity to enter into thecontractual agreement. No problem arose from the fact that the trust hadno legal estate, as no interest was being asserted by the plantiff againstany third party to the agreement. Lord Hobhouse's speech does notsatisfactorily answer the objections already outlined, but it may indicate apossible way for future courts to deal with the precedent set by Bruton,Indeed, on policy grounds

- that a landlord should not be able to escape

statutorily repairing obligations by denying that they had capacity togrant a tenancy

- the decision is perfectly acceptable. As a precedent it is

much more difficult, as it creates a hybrid interest of a seemingly non-proprietary nature, the full implications of which we will only come tounderstand and appreciate with its further judicial exposition.l@

Prior to Bruton, one would have thought.,that the conferment of aproprietary interest was absolutely essential tdthe characterisation of anagreement as a lease, The bare minima of a lease would have seemed tobe the grant of exclusive possession for a term, and the capacity to make agrant of exclusive possession in the absolute sense (so that the tenant candefend his or her possession against all-comers) of the very essence. In anearlier House of Lords decision, Prudential Assurance Co Ltd v. LondonResiduary Body,tls an attack was made on the necessifSr for the 'term' of alease to fulfil the requirement of certainty. Previous cases had held that itrot [990] 7wLR779, [1990] 1 All ER 385.102 Although compare the subsequent decision of the House of Lords in Westminster City

Council v. Clarl@ 119921 2 AC 288, [19921 I All ER 695.ro3 At p.414.ro4 See Bright (2000) 116 LQR 7 at 9.ros 11e921 2 AC 386.

120 Land Lnwrnust be possible to say, at the" beginning of a lease, when it wouldterminate by effluxion of time,106 However, despite argument that thecorrtractual autonomy of the parties should be respected and their freelynegotiated agreement duly enforced, the House of Lords held that theprinciple must prevail. This assertion of the power of property law to limitthe extent to which parties can modify property interests was welcomedin some quarters.lo7 Most conveyancers would agree that freedom ofcontract must occasionally be sacrificed on the altar of property, and LordTempleman did not seem unduly concerned by the consequences ofapplying strict property principles to the facts before him. However, LordBrowne-Wilkinson, while accepting that under the current law it wasllecessary for an effective lease to satisfy tests of certainty, considered thatthe result in Prudential Assurance was unsatisfactory, and proposed thatthe issue should be referred to the Law Commission so that it couldcontemplate future reform.l'8 The decision in Bruton presents a furtherchallenge for those who believe that the division between contract andproperty should be clear and easily drawn.

Covenant: the lease as contract and property

As we have seen, the lease is a method of disposition of land, and it offersinvestment opportunities in providing, in exchange for exclusivepossession for a defined period of time, a commercial return by way ofincome (in the form of rent) and possibly also capital (a premium paid atthe time of grant). But the popularity of the lease can also be attributed toanother factor. If a freehold estate is sold, the purchaser or vendor maymake covenants concerning the future use of the land. Those covenantsmay be enforced by and against the original parties to them Pursuant totheir contract and, in so far as the covenant touches and concerns the landand is restrictive of the use to which the burdened land is to be put, theymay also be enforced, traditionally by way of injunction, againstsuccessors in title.loe Positive covenants do not, however, 'run with theland'.110 Thus it is extremely difficult to enforce covenants requiringsuccessors in title to maintain the condition of their ProPerty, a potentiallyvery serious problem where housing developments or industrial estatesare concerned.111 The lease, on the other hand, makes use of the wider

106 Lncc v. Chantler ll944l KB 368,IU7 Sparkes (1993) 109 LQR 93.log PruLldtioi Asstsance Ca Ltd v. London Residttary Body 119921 2 AC 386 at 396.tt]e 'I'Ltlk v. Moxhay (1848) 2 Ph 774.tlo Nwrc v. Sreplrcns [1994] 2 AC 310.r11 'Ihe current Commonhold and Leasehold Reform Bill, if enacted, will inhoduce a

'cornmonhold' system into which parties can contract. This will facilitate the mutualenforcenteni of covenants between the relevant parties,

Leases -

contract, propertY and status 121doctrine of privity of estate, which enables both restrictive and positivecovenants to be enforced by and against those who succeed to the originalparties to the landlord-tenant relationship. Thus for centuries covenantshave been given a proprietary effect, subject only to the proviso that thecovenant in question had a proprietary flavour that, in legal parlance, it'touched and concerned' the land. This doctrine has led to thewidespread use of leases, not only in the disposition of flats and otherforms of housing development., but also in the case of commercialproperty.

The enforceability of leasehold covenants by and against parties to thelease and their successors in title is based upon the twin notions of privityof estate and privity of contract. By the doctrine of privity of contract, theoriginal landlord and the original tenant bind themselves to comply withtheir mutual obligations for the duration of the contractually agreed term'The contractual nexus may be detectable beyond the original parties whosigned the lease, most sigrrificantly where landlords require assignees ofthe lease to covenant directly with them to comply with all the obligationsof the lease for the duration of the term. By the doctrine of privity ofestate, any successor in title of those original parties is bound to observethe covenants that touch and concem the land for the time during whichthat successor has that title. Whereas privity of contract is based on theparties' agreement, privity of estate is based on the parties' propertyrelationship.

It has been difficult sometimes to distinguish the influence$ of contractand estate as litigants seek to use whichever offers the sounder basis fortheir arguments, and the more effective remedy for their gle-vance. In thenotorious case of Centroaincial Estates plc v. Bu[t< Storage Ltd112 the originalparties had agreed a rent of [17,000 p.a. Following assignment of theiease, a subsequent tenant agreed on review that the rent should beincreased to f,40,000 p.a. When that tenant defaulted, the landlord soughtrecourse from the original tenant, and he was,"[reld liable to pay the rent atthe higher rate. Harman ] held that:

each assignee is the owner of the whole estate and can deal with it, so as to alterit or its terms. The estate so altered then binds the original tenant, because theassignee has been put into the shoes of the original tenant and can do all suchacts as the original tenant could have done.

In the later case of Selous Street Proputies Ltd v. aronel Fabrics Ltd,113 thisreasoning based on the vesting of power in the assignee to vary the termsof the estate was applied by Hutchison J to permit the landlord to clain'tagainst a former tenant for rent which was increased on review takir*g

112 (1983) 46 P & CR 393.113 (X984) 270 EG 643, [19841 1 EGLR 50.

122 Land lawaccount of alterations made to the premises by the assignee. As the tenanthad assigned the lease to the assignee, it had empowered the assignee tonegotiate variations to the lease. Only if those variations were sosubstantial as to amount to a surrender and re-grant (such that thearrangement now took effect as a new lease) would the former tenanflsliability be extinguished.

ln Friends Priident Lit'e Office v. British Rnilzoays Board,17a the Court ofAppeal identified the fallacy in the reasoning of these decisions' Theoriginal tenant was bound by contract to the original landlord, and thatcontract remained enforceable despite the assignment of the leaseholdinterest. However, the variation effected by the assignee amounted to avariation of the estate, not the contract. It was the estate, not the contract,which the assignee was now empowered to deal with, and while suchaction might increase the liability of the assignee, or subsequent holdersof the estate thus varied, it could not affect predecessors in title. Central totlre analysis in Friends Proz;ident is the distinction between contract andestate. As Susan Bright concisely puts it: 'The Friends' case at lastrecognises that the original tenant should be bound only by his ownpromises, not by later changes to the lease that were not authorised byhim. Nor does he authorise later changes simply by selling the lease to theassignee.'115

However, the wording of the covenant may allow scope for asubsequent increase in the level of liability. Thus it is usual for a tenantentering into a lease to covenant to pay the rent as agreed and asreviewed from time to time. A landlord may then be able to enforce anincreased rent against a tenant although the rent being claimed had beenincreased on review, or by agreement at the time of review, But where thelandlord had agreed with a later tenant to vary covenants in the leasewhich variation was outside the reasonable contemplation of the originalparties to the conhact, then the obligation as varied could not be enforcedagainst a predecessor. This was the fallacy of the Selous Street decision.

The judgments in Friends Proaident were given within a week of RoyalAssent being granted to the Landlord and Tenant (Covenants) Act1.995.116 This important and complex statute, which has had hugeconsequences for the enforceability of leasehold covenants, focusedprimarily on the vicissitudes of the doctrine of privity of contract and theinvidious position of former tenants and their guarantors faced by claimsaccruing after they had acquitted themselves of such interest as they hadin the relevant property. Initially inspired by the recommendations of the

tt4 179961 1 All ER 336.1rs 'Variation of Leases and Tenant Liabiliti/ in 'The Reform of Property Law!, at p.82.115 Note in particular s. 18, which was intended to reverse the effect of the Sclous Street

decision.

Leases -

contract, property afid stetus 123

Law Commission in its Rcport on Priaity of Contract and Estate,l77 the Act inits final form bears the scars of politicai wheeler-dealing and-skullduggery*ni.n u..o*panied its passage through Parliament' The admirably clearnoUon that ienants should 6e releaJed from liability once they..haveassigned their interest under the lease (at least with the landlord'sconlent) was lost in the translation, and practitioners and law studentshave hid to deal with new concepts and devices including statutory.roti.u p.o."dures, authorised guirantee agreements and overridingleases, The detailed provisions if tftu Act have been fully explainedelsewhere.118 Its essential effect can be summarised as follows.

ln relation to luses wheneuer granted1. Where a landlord wishes to recover payment of rent or any other

fixed charge payable under the lease foom a former tenant or aguarantor,-a nttice must be served on that person within six monthsofsuchsumbecomingdue.Afailuretoserveastatutorynoticewillbe fatal to the landlori's claim, as the former tenant or guarantor willceasetobeliable.Thisprovisionwasintendedtoprevent.thelandlord from allowing considerable arrears of rent to accumulateprior to notifuing poteitially liable parties who would otherwise be*hoUy u.ta*atJoi the nature or extent of the liabiliry'

Z.Intheeventofanoticebeingservedasabove,therecipientwhopaystherequiredamountisentiueatohaveanoverridingleaseofit e prerr,isei granted by the landlord' This lease will be interposedbetween the riversion of the landlord and the interest of the currenttenant, and will have the effect that the recipient will beempowered, in most cases, to act against the defaulter' perhapsinvtking a right of re-entry to recover possession and. therebyfacilitatiig deitlng with the property to compensate for the losses

ln relatian to leases granted on or at'ter 1 January 1996 (the date the Actcame into force):l.Onanassignmentofthereversionortheterm,thebenefitand

burden of al-l landlord and tenant covenants of the tenancy li"l tl;benefitofalandlord,srightofre-entry)willpasstotheassignee..This will occur whetheithe assignment is legal or equitable'''" A

ru Law Com No. 174 (29 November 1988),118 [1996] CLI 313.rle Landlord and Tenant (Covenants) Act 1995, s' 3.tzn s. 28 (1).

124 Lnnd Lawcovenant that is expressed to be personal to any person cannot beenforced against any other person.I2l A restrictive covenant can beenforced against any person owning or occupying premises towhich the covenant relates.rz Thus the common law iequirementthat a leasehold covenant would only run if it touched andconcerned the land has been abolished with prospective effect.

2. On an assignment of the term, the tenant is released from the tenantcovenants of the tenancy (and at the same time ceases to be entitledto the benefit of the landlord covenants of the tenancy). However,the tenant may be required by the landlord to enter into an'authorised guarantee agreemenf (AGA) under which the tenantwill guarantee the performance of the tenant covenants by theimmediate assignee. It is necessary, for an AGA to be effective, thatthe lease contains an absolute or qualified covenant againstassignment without the consent of the landlord (or some otherperson) and that the landlord must impose as a condition of thegrant or consent that the tenant enter into the AGA. The condition ofentry into an AGA must be'lawfully imposed'

- in other words, the

imposition of the condition must be reasonable in circumstanceswhere the Landlord and Tenant Act192T, s, 19, applies. However, incertain 'qualifying leases' the landlord will be able to insist on thetenatlt entering into an AGA, as the lease will have containedexpress provision specifying the entry into an AGA as a conditionsubject to which consent may be granted. The overall effect of theseprovisions on commercial leases is that the landlord will usuallyhave the security of the tenant's covenant until their immediateassignee in turn assigns the term to another tenant. At that time, theimmediate assigrree will be required to guarantee the performance ofthe covenants by the new tenant pursuant to another AGA.

3, On assignment of the reversion, there is no automatic statutoryrelease of the landlord from the landlord covenants. However, theassigning landlord can apply to the tenant to be released by servingnotice on the tenant before or within four weeks of date of theassignment. If the tenant objects to the landlord's release, it mustserve a counter-notice to that effect. The landlord can then apply tothe court for a declaration that it is .reasonabtre for the release to takeplace. lf release does occur, the landlord wiXX at the sairre tirne ceaseto be entitled to the benefit of the tertant cover,,Lants.

r2r s. 3 (6).r22 s. 3 (5)i see C)ceamic \/illage Ltd v. United Attrnciions l,td 120A0[ Ch 234, noted at [2000] CLJ

45(i.

Leases'contrail, property and status 125The decision of the Court of Appeal in Aesterfield Ptoperties Ltd v. BHP

Great Britain Petroleum Lfd123 concemed an attempt by a landlord to denyliability for breach of eovenant on the ground that a release had beeneffected by force of statute. BHP was granted a lease for a 20 year fixedterm wittr effect from June 1997. By a collateral agreement, the originallandlord (L1) agreed to undertake certain refurbishment works prior tothe tenant going into Pos$ession and covenanted to remedy any defectsarising. This latter covenant was acknowledged by the tenant to be anobligation personal to Ll, although it was an obligation which could beenforced by the tenant's successors in title, Subsequently L1 assigned thereversion to L2 (its associated company) and served notice on the tenantrequesting release from its obligations under the tenancy and informingthe tenant that they must notify them of any objection to the releasewithin four weeks. No such notification was given, and when the tenantbrought a claim against L1 for failure to remedy allegedly defective works,Li argued that they were no longer bound to cornply with this obligation.

Aottr Lightman J, at first instance, and the Court of Appeal took theview that despite service of the release notice by the landlord Prior toassignment of the reversion, the landlord remained liable to remedy thedefective works. The procedure applied to'landlord covenants', definedin the Act as covenants 'falling to be complied with by the landlord ofpremises demised by the tenancy', and 'the landlord' was defined as 'thep"ruon for the time being entitled to the reversion expectant on theierm'.'* This provision clearly contemplated release only of liabilityunder those covenants which eould be enforced by successive landlords(landlorcls'for the time being'), Thus it was not possible for a landlord toinvoke the release procedure with regard to personal convenants. Theresult was clearly just, as there was more than a hint of the landloril, intransferring the reversion to its associated company, seeking to takeadvantage of the statute to escape its convenanted obligations.

However, Chesterfietd Properties does rai$e an issue which has beenlargely dormant since the enactment of the 1995 Act, namely the - "disiinition between covenants which run with the land and those whichdo not. The old test, whether the covenant'touches and concems' theland (or, in its statutory translation,'has reference to the subject-matter ofthe lease'), was abolished in relation to new leases by that Act on theground that it was arbitrary and illogical. The new test is whether aiovenant is '(in whatever terms) exPressed to be personal to antyperson'.12s Whereas the court has in the past been exPected to decidewhether a covenant, viewed objectively,'totaches and concerns' tire lano,the matter is now essentially one for the partles themselves. trf t,hey do riLot

123 [200i] EWCA Civ 1797. 30 November 2001.124 C 1q/1 \

'2s s.3(6).

t26 Land Law

intend a covenant to be enforceabtre by or against their successors, thatslrould be stipulated expressly in the lease. It is perfectly possible for acovenant, which is proprietary in nature, to be rendered unenforceable bynr against successors, or even (as was the case in Chestert'ield Properties)l%er"rforceable one way only subsequent to assignment. 'A covenant whichrelates to the land may nevertheless be expressed to be personal to one orother or^both of the parties to it. This is a matter for the contractingparties.""' Thus, there appear$ to be nothing to prevent the terms of thelease from stipulating that the covenant to pay rent, or to repair, is acovenant which is purely personal to the original parties and thereby torestrict its application exclusively to those parties.

The 1995 Act has been accurately described as effecting a 'sea-change'in the law affecting the tenant's liability after he assigns the lease,128Moreover, it has led many landlords of commercial properties to changetheir practices as they strive to enforce as best they can the obligations ofthe lease and to obtain the best possible security fdr, the payment of therent and the performance of the covenants, We have already seen howthe landlord and tenant rnay specify in advance conditions subiect towhich licence or consent may be granted and which cannot besubseluently challenged by the tenant on the grounds of unreasonable-ness.''" It l'ras become standard for the covenant against alienation to bedrafted in such a way that the landlord can require as a condition ofgranting consent to assignment that the assigning tenant enter into anauthorised guarantee agreement. Thus when TL assigns, with thelandlord's consent, the landlord will then have the security of the newassignee (T2) and that of Tl pursuant to the AGA. This practice does notoffend any of the provisions of the Act provided that the conditionrequiring the tenant to enter into an AGA was contained in the lease or insome other agreem_ent made before the tenant makes application for thelandlord's consent.l30

126 It was exressly stated that the landlord's personal covenant to remedy defects could beenforced by successors in tide of the tenant.

127 Per |onathan Parker LJ, giving the judgment of the court.18 Per Neuberger J inWallisFashion Group Ltd v. CGIJ Life Assurance Ltil p,}}1|ZEGLR 49,52.12e lt may be that no such conditions have been specified in advance and that the landlord is

therefore in a somewhat weaker position when the tenant seeks congent to assign. It isstill open to the landlord to argue for the imposition of conditions, but in each case it willbe necessary for the landlord to show that the condition is'reasonable', If the landlordseeks to impose unreasonable conditions, there is potential liability under the Landlordand Tenant Act 1988 (see in particular section 1 thereof).

r30 Landlord and Tenant Act 192:7, s.19(1A), added by the Landlord and Tenant (Covenants)Act 1995, s. 22. This provision applies to'qualifying leases', defined as any lease which is anew tenancy (see 1995 Act s.1) other than a residential lease, i.e, a lease by which abuilding or part of a building is let wholly or mainly as a single private residence.

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contract, property and status

An inrportant related question arose in Wallis Fashion Group Ltd v. CGULiJe Assurance Lfd.l3l Commercial leases negotiated and granted prior tothe 1995 Act would obviously not require the tenant to enter into an AGAon assignment. Yet when a tenant now seeks renewal of such a tellancypursuant to Part II of the Landlord and Tenant Act1954, should the courtimpose a covenant against assignment in the new lease in such terms? InWallis Fashion, the landlord argued that a tenancy being Sranted by thecourt pursuant to Part II of the Landlord and Tenant Act 1954 shouldinclude provision requiring as a condition of any assignment by thetenant that the tenant enter into an authorised guarantee agreementguaranteeing the liability of the immediate assignee. Neuberger J refusedto include such a provision in the tenancy being granted. It was moreconsistent with the current leaser-'2 to allow a landlord the security of arrAGA only if it was reasonable in the circumstances which applied at thetime when consent to assignment was sought, rather than to Permit thelandlord to require the assignor to enter into an AGA whatevercircumstances were then prevailing. Moreover, it was an unattractivecontention of the landlord that he should be entitled to the benefit of acovenant in a tenancy which 'entitles him to be unreasonable'. NeubergerJ did not say that a landlord will never be able to contend successfully forthe new lease to contain provision entitling the landlord to an AGA as ofright, as it will depend on the circumstances of each application, but it isclear that a landlord seeking to uphold such a term will have an uphillstruggle,

A further problem, much discussed, but yet to be judicially decided,concems the position of a guarantor of the original tenant. A g:uarantor,although not in a relationship of privity of estate with the landlord, offersan alternative means of satisfaction where the tenant fails to comply withthe obligations under the lease. The 1995 Act aims to release guarantorsfrom liability at the same time and to the same extent as the tenant whoseobligations they are guaranteeing is released by the statute,133 Is it..

,

therefore possible for the landlord to require the assigning tenant'sguarantor to be a party to an authorised Buarantee agreement? Althoughthis would have the obvious advantage to the landlord of an additionaldefendant in the event of non-payment of rent, or other breaches ofcovenant by the tenant in possession/ the legislation is silent andunsupportive. In particular/ section 16 (which defines AGAs) appears toenvisage that it is only the assigning tenant which can enter into the AGA

r3r [2000] 2 ELGR 49.132 See O'Mty v. City ol landon Real Property Co Ltd 119831 2 AC 726, imposing the burden on

the party seeking a deparfure from the terms of the current lease to justify the proposedchange,

113 S. U (2).

t27

128 Land Lawwith the lancllorcl.r3a In offering landlords an opportunity of pursuing thetenant after assignment, AGAs provide an exception to the basic principleihat or.r assignment of the lease the tenant's future liability isextinguished. Had Parliament intended to allow landlords to demandor request that contractual sureties enter into ACAs, clear wording wouldhave been expected. 13s Looking outside the Act, the recommenditions ofthe Law Commission which provided the catalyst for the legislationappear to limit AGAs to the assigning tenant/ and there is no expressaffirmation that sureties could be parties to an AGA (although it shouldalso be said that there is no express denial either).136

The ingenuity of solicitors advising landlords is not, however, rebuffedby simple reference to section L6. It may be that a guarantor cannot be aparty to an AGA as such, but there may be other ways in which they canbe cornpelled to provide the desired security. One possibility, discussed atlength in the practitioner periodicals, is an agreement of sub-guarantee.Tl're parties to the lease, L, T1 and G1 could stipulate at the outset that CLwould guarantee the liability of T1 both during the time that T1 wastenant under the lease (or until T1 was himself released by virtue of thestatute) and during the currency of any AGA T1 might subsequently enter into.'l'here are different schools of thought on the effectiveness of such a1.,r'ovisior.r.l37 Less likely to be challenged (and attractive therefore tocautious landlords) is the inclusion of a condition in the lease to the effectthat a guarantor of objectively stated financial standing must be providedby the assigning tenant to guarantee the obligations now being under-taken by the assiglree. If the guarantor then proposed by the tenant, andaccepted by the landlord, were a different person from the guarantor ofthe assigning tenant, it is difficult to see how any challenge could bemade."o If the existing surety were taken on by the landlord as the suretyfor the assignee's liability, then the position may be more doubtful.Certainly, any stipulation in the Iease (or other agreement preceding thesecond guarantee) requiring the original surety to be surety for theassignee would be liable to be struck down, as this would frustrate theoperation of the Act

- the tenant covenants being guaranteed by the

r3r'fhis is the constant theme throughout the provision, but a good example is sub-section(1): 'Where on an assignment a tenant is to any extent released from a tenant covenant ofa tenancy by virtue of this Act. . . nothing in this Act (and in particulat section 25) shallpreclude him kom entering into an authorised guarantee agreement with respect to theperformance of that covenant by the assignee.'

r:]s Compare s. 17(3), which makes provision for the service of a 'problem notice' on aguarantor, lt would have been possible for a similar extension to have been made inrespect of such persons in section 16.

r:n, Law com No. 174.r37 See Cullen & Potterton (1996) E. G, 118, Slessenger (1998) E. G. 102.r38 I cautiously advanced this argument in [1,9961CLJ 313 at 351. See also Walker (1998) L & T

Review 12.

Leases -

contract, property and status 1'29surety would be the same tenant covenants as before, albeit that thepurro., primarily liable to perform them will have changed' But if theLriginal- surety volunteers, without any Pre-existing obligation,, toguirantee the issignee's liability under those covenants, then the mischief6f the anti-avoidance provisions would appear to be averted, and it maybe more difficult to say that the operation of the Act is being frustrated.

It was inevitable that the Landlord and Tenant (Covenants) Act 1995would result in disagreement between protagonists about the meaning ofcertain provisions und th" extent to which parties are free to come to theirown aAeements. As we have $een/ the tension between statute andcontract is ever present in landlord and tenant litigation. It has beenargued that at a suitable, opportunity Pailiament should be invited toclirify the uncertainties thaf are most prevalent (for example, to enable alandlord to ioin a guarantor of the assigning tenant as a Party to anAGA).r3e guiit is aouUtfU that this will happen in the foreseeable future.It is more likety that further exploration of the boundaries of liability willbe by means of test litigation.

Into the future: testructure and reform

It should be clear thus far that the law of landlord and tenant encomPassesan almost infinite variety of contractual and proprietary relationshipswhich are disparately govemed by a profusion of statutory enac&nents. Wehave seen how status is of massive significance in all spheres of the law ofleases, and how the interrelation of proPerty and contract impactsthroughout. As will have been seen in the course of this chapter, whichpro.uldr from an essentially concePtual view of the subject, tbking;contrac(,'status' and'property' as particular asPects of the lease which canillushate the practical impaci of legal principle uPon the flexibility andavailability of iemedies, ceitain areas are of rqruch Sreater importance in the-

.

context oi the commercial rather than the residential sector or vice versa. 'Take, for instance, the enforceability of covenants by and againSt those whoare not parties to the original lease. This is of greatest application in thecontext bf commercial leases, where fixed-term tenancies are grantedsubject to the exercise of rights of re-entry in the event of tenant defaultand where assignment of the reversion and the term is a commonoccurrence. ThJ rules are far less frequently applied in relation toresidential leases, where periodic tenancies are the nonn and whereassignment of the interest may never come into the head of the tenant. Btltthaiis not to say that the rules have no application. Indeed, there are manyresidential leases that are expressly granted for very long terrns indeed.

13e Williams (2000) L & T Review 49.

130 Lanrl LawThe law of landlord and tenant has seen rnuch change in recent years,

much of tire legislation, as we have seen, being of a political flavour -

notably the phasing out of the Rent Acts and the stealthy deregulation ofboth residential and agricultural tenancies. As has,been remarked recentlyby Peter Sparkes, we have now reached a stage where the politicaldifferences on the future of landlord and tenant between the two largestparties are much fewer than they have been.1ao The Law Commission has,over the years, had a relatively limited impact on the development oflandlord and tenant law, for the most part due to its understandablereluctance to become embroiled in an area where the complexion of thegovernment would make a very considerable difference to the chances ofany proposals they might make coming to fruition. The difficulty faced bythe Commission in proposing politically contentious reforms has beenwell documented. That said, it is not always easy to predict whichproposals will face opposition or disapproval from certain political sectors.The enactment of the Landlord and Tenant (Covenants) Act1,995 was theculmination of a process which the Law Commission had initiated, but asa result of the parliamentary mauling suffered by the Bill, the end-productwas far removed from, and many would argue, significantly inferior to,the initial proposals.

At its very inception, the Law Commission had a grand design for acodification of landlord and tenant law,lal but it was pragmaticallyrealised some years ago that this was too ambitious a programme and itwas abandoned.la2 This must have been in ro.r," r"ip"Its due to therecognition of the way in which the law of landlord and tenant wasfragmented into different regimes for different kinds of leaseholdproperty, making a rationalisation of the entirety of the law a somewhatunnecessary and arguably ineffectual exercise. Indeed, possibly the onlysignificant piece of legislation that has given full effect to proposals of theLaw Commission is the Landlord and Tenant Act 1988, conferringstronger remedies on tenants whose landlords had unreasonablv with-held their consent to assignment of the lease.l43 But there are si6ps thatfurther progress is being made, As we have already mentioned, theproposals for reform of the statutory procedures concerning businesstenancies may finally bear fruit. Termination of leases (the law offorfeiture) has been on and off the Commission's agenda for a very longtime, but work on a final report and draft Bill is being currentlyconducted.laa The problem of disrepair of residential prop"erty, high-lao ln Property 2000, at p.219,r41 See the First Programme of Law Reform, Law Com No 1 (196F).ra2 The Thirteenth A:rnual Report of the Law Commision 1972-7979, Law Com No 92, para

2.34143 The 1988 Act is based on proposals in Law Com No 1a1 (1985).1a Law Com No 142 (1985), Law Com No 221, (1,994),

Leases -

contract, property and status 131

lighted in its 1995 rePort, remains of vital importance' and is also underactive consideration.r4t

As the current Chairman of the Law Commission, sir Robert Carnwath,h"; ;;t.* ,It is possible to look forward to a period of reasonable politicalconsensus o., ih" essential elements. SuCh a consensus provides apro^iti"g climate for the Law Commission to carry out its proper role ofinoaemtition and simplification, without becoming involved in mattersof political controversYJla6

the problem in miny areas of landlord and tenant law has been theachievement of consensus, and it is this vital element which has given theCommission the opportunify to carry out its major project on housinglaw. The Gorrerrrment has stated thaf it does not intend to alter the basicbalance between landlords and tenants in the residential sectors.laT Thereis an obvious lleed to remove the current complexity and to clarify the lawas it affects people on an everyday basis in the occupatign 9f their homes'in.

""*t fe'i, y"urc are likely io see reform of much of the law of landlord

and tenant, #itn un ultimaie objective of clarification and simplication oflegal principle,

Further reading

Bid,ge, Fornrcr Tenant, Frtture Liabilities and the Priuity ot' Contract principle:^thetinatora and Tenant (Cooenants) Act 1995 [1995] Cambridge Law Journal 313.

Bighl, lJncertainty in Leases: is it a uice? (1993) Legal Studies 38'friEf.,t'C Gilbert, tnndlord and Tenant Law, the Nature of Tenancies (1995, Oxford)

onssim.GlJndon, Tlr Transt'ormation of Ameriun Landlord-Tenant Law (1'982) 23 Boston

College Law Review 503.Hill,Thebroprietary Character of Possession in Moderu Studies in Prop*ty Law: Prolt*ty

2000 (2007, Hart Publishing).Rabin, ihe Reaolution in Residential Landtord-Tituant l-aw (1984) 69 Cornell Law.

Review 517,Sparkes, A New Landlord and Temrtt l-aw (2001, Hart Publishin g)' passim'

1as Law Com No 238 (1996).145(2001)5L&TRev3.uz puality and Choice: A Decent Home tot All, DETR