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Part 1
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Chapter 1
Introduction
1.1 Introduction
This book considers the law that governs the relationship between landlord and tenant. Leases are a matter of both contract and property and this can make comprehension of this area of the law complicated. Landlord and tenant law is broad in its breadth; it covers occupation of land for a variety of different purposes, leases of differing durations and parties who operate within both the private and public sectors. This book considers both the key concepts which apply to all landlord and tenant relationships and the special regulations which govern the business and residential sectors. Within the residential sector a further division between the private and public sector is required as well as separate consideration of the rules relating to long leases.
In this chapter, the history of landlord and tenant provides a context for the key concepts of estate and tenure. The importance of the lease as a matter of contract and also as property is discussed and the key requirements for a leasehold relationship are outlined. The importance of the Human Rights Act 1988 to this area of the law must also be considered. Finally, some of the different types of lease are introduced.
1.2 The historical context
Historically there are two key doctrines of land law, the doctrines of tenure and estates. These concepts provide the context in which the modern law is situated and will therefore be considered, albeit very briefly.
The doctrine of tenure has its origins in the system of feudal tenure that existed in England and Wales after the Norman Conquest. Feudalism was a system in which land was granted in return for services. King William needed a way to reward those who fought for him and to retain their loyalty. He achieved this by parcelling up land and granting it to his followers in return for them fighting in his army and bringing with them a certain number of knights. The kingās tenants were therefore compelled to grant tenancies of their lands in order to comply with their bargain with the king, in return for military services. Military services were one of many types of services rendered in return for land, and a discussion of these is beyond the scope of this book. Suffice to say that each set of services were known as tenure.
Regardless of the tenure, land could be held for different lengths of time. The length of time for which the land was held was known as an estate. Estates in land could be for life (the life of the tenant), in tail (the life of the tenant and his descendants), or in fee simple (the life of the tenant and his heirs whether or not descendants). Tenure then, is the terms upon which the land is held, and the estate is the length of time for which the land is held. There was at one time no limit on the number of tenures between the Crown and the tenant in occupation of the land. However, over time and as a result of legislation in the form of the Statute Quia Emptores 1290 and the Tenures Abolition Act 1660, this process of subinfeudation died out until there were no tenures between the Crown and what is now the freehold tenant.
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1.3 The relationship between landlord and tenant
1.3.1 In contract
Contractual rights are personal (in personam) which means that they bind only the parties to the contract, and give rise to the remedy of damages. The advantage of this merely contractual relationship from the tenantās point of view was that, prior to the Statute of Wills 1540, whilst land could not be left by will, leasehold could.
The contractual nature of the lease continues to be important and there are many instances where the express wording of the lease is significant. For example, in commercial leases where the lease makes no provision for the property to be repaired there is no obligation for either party to carry out repairs. The obligations with regard to repair are dependent upon the wording of the lease, and the contractual rules for interpretation are applied to these words. Likewise, the starting point where there is a breach of the obligation to repair, is a contractual claim for breach of contract and damages. That said, landlord and tenant legislation has substantially intervened to modify this contractual position particularly with regard to short residential leases where statute implies obligations on the landlord with regard to repair of the exterior and plumbing for example.
1.3.2 In property
Since 1925 the āterm of years absoluteā, or leasehold, has been one of the two legal estates in land (Law of Property Act 1925, s. 1(1)(b)). The status of leases as proprietary in nature is significant, as leasehold covenants bind successors of the landlord and tenant, whilst, as we have established, contractual terms bind only the parties to the contract. The importance of this distinction is clear in Chapter 2 where the difference between leases and licences is considered. A term of years absolute is a legal estate of a fixed duration which is carved out of the other legal estate in land, the āfee simple absolute in possessionā, or freehold (Law of Property Act 1925, s. 1(1)(a)). The fee simple is of indefinite duration and is as close to absolute ownership as English law allows.
1.3.3 Occupiers of land
The main types of occupier of land are:
(a) The freehold owner ā the individual who holds the most significant estate in land. He or she can carve out of this estate a leasehold interest, in which case he or she will also be a landlord.
(b) The leaseholder ā the individual who holds an estate limited in duration. More commonly referred to as the tenant.
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(c) The licensee ā we are all licensees from time to time. A licence is merely a permission. We are therefore licensees when we enter a shop or the home of a friend. We donāt necessarily need express permission to have a licence to occupy land, implied permission will often suffice. However, where we have no permission, or our permission is revoked we will become a trespasser.
(d) A trespasser ā where there is no permission to enter or remain on land the occupier will be a trespasser. Where someone moves into a property to live there without permission they are often referred to as a squatter and this class of person is legally a trespasser. Squatting in residential premises is now a criminal offence punishable by fine or imprisonment (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 144).
1.3.4 Elements of a lease
To have a leasehold interest a tenant must have exclusive possession of identifiable land for a definite period. There must be a separate landlord who retains a reversion. The elements of exclusive possession of identifiable land for a definite term are considered further in Chapter 2. Put simply, this means that the area demised to the tenant is sufficiently clear and that the tenant can exclude the whole world, including the landlord (subject to rights of entry to inspect and repair typically contained within the lease). A term may be definite by grant for a fixed period, or it may merely be capable of definition. This includes tenancies where the term is not specifically defined, but payment of rent is expressed to be made periodically (often monthly, see periodic tenancies in 1.5.2). For a lease to exist, the landlord and tenant must be separate legal persons capable of the grant and receipt of the tenancy. A ālegal personā may be an individual, a group of individuals or a corporation. To be capable of the grant, an individual must not be a minor and, where the tenant is a company, it must be permitted by its constitution to grant tenancies. Where a tenant purchases the freehold of the land he occupies as tenant, the leasehold will merge into the freehold and will effectively be extinguished. The term reversion refers to the estate that remains after the lease has expired. The landlordās reversion must be longer than the term of the lease. Where the landlord is a freeholder he may grant a lease for any duration. It is also possible for a leaseholder to grant a lease (a sublease), but the term of this lease must be shorter than the term of the lease under which the leaseholder occupies. Whilst ordinarily the landlord will hold an estate in land (freehold, or leasehold), in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 (HL) the House of Lords held that even where the grantor held only a licence (which is a contract rather than an estate in land) a lease had been granted.
1.3.5 Statutory intervention
This book will consider a number of statutory regimes which modify the contractual nature of the landlord and tenant relationship. The statutory regimes considered by this book are divided into two types; those which govern business tenancies (which are covered in Part 3), and those which govern residential tenancies (which are covered in Part 4). Residential tenancies may be further subdivided according to the length of term, and also the status of the landlord (whether private of public sector). The status of the landlord will impact upon the extent to which the tenant may look to the Human Rights Act 1988 for protection.
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1.4 Introduction to human rights
Since the enactment of the Human Rights Act 1988 (HRA), the rights protected under the European Convention on Human Rights 1950 (ECHR) are embodied in the law in England and Wales. This has a number of implications for English law:
ā¢ Under section 2, where courts are deciding questions about Convention rights they must take into account the decisions of the European Court of Human Rights.
ā¢ Under section 3, all legislation must be read in a manner compatible with the Convention rights.
ā¢ Under section 6, all public authorities (including the courts) must act in a way that is compatible with the Convention rights.
ā¢ Under section 8, damages may be awarded for a breach by a public authority.
The most relevant of the Convention rights to landlord and tenant law are: Article 1 of the First Protocol (A1-P1), which protects the peaceful enjoyment of possessions, Article 3 which prohibits degrading treatment, Article 6 the right to a fair trial, Article 8 which protects the right to respect for private and family life, and Article 14 which prohibits discrimination. These rights are designed to protect the individual from interference from the state. It is worth therefore considering the meaning of public authority. Local authority landlords would clearly fit within this category. Additionally, HRA 1988 s. 6(3)(b) extends the definition to include any individual whose functions are āfunctions of a public natureā. This means that registered social landlords (RSLs) (now, private registered providers (PRPs)) may be public authorities in some instances. So, in R (on the application of Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 a tenant of an RSL succeeded in invoking the HRA with regard to eviction as the RSL was, in allocating housing, exercising a public function. The extent to which a RSL or PRP is exercising a public function has been considered in subsequent cases. So, for example, in R (on the application of Macleod) v Peabody Trust Governors [2016] EWHC 737 the High Court held that in declining to allow a mutual exchange the housing association had not been acting as a public body.
In addition to the application of the Convention to disputes with public bodies it may, in some instances, be applied to private disputes. In certain circumstances in a private dispute an individual may wish to argue that English law is incompatible with the Convention. For example, in James v United Kingdom (App No 8793/79) [1986] ECHR 2 the trustees of the Duke of Westminster challenged the enfranchisement laws contained in the Leasehold Reform Act 1967. The estate owned approximatel...
