Land Law Lecture 7
Leases
- Have to know for sure what the maximum duration should be
- Best authority is Prudential and Mexfield and Lace
- The orthodox view
- Have to know at the start what the maximum duration is going to be or you will not
have a valid lease
- How can you work with that rule creatively to get over the fact that this is a harsh
rule
o Can draft your way to success if you know the law
o Intention can be taken into account
o If the term is uncertain, can use LPA 1925 for lease for life to 90 years
o This only applies when there is a lease for life
- The rules established in Prudential and Mexfield is criticised by the judges in those
cases
Certainty: Is the Prudential/Mexfield version certainty justified?
Lord Templeman (Prudential): Lace – reaffirmed 500 years of judicial acceptance
Lord Browne-Wilkinson (Prudential) sceptical-
This bizarre outcome results from the application of an ancient and technical
rule of law which requires the maximum duration of a term of years to be
ascertainable from the outset. No one has produced any satisfactory rationale
for the genesis of this rule. No one has been able to point to any useful
purpose that it serves at the present day.”
- The rule is not overturned despite the criticism
20 years later Lord Neuberger in Mexfield – sympathetic to viewing the law as
unsatisfactory (but note his 6 reasons not to get rid of the rule [35]-[37])
They could have changed the rules but didn’t because
They might upset long established titles
Didn’t want to change the law to affect people’s ownership of land
It is for Parliament to change the law not the courts
Lady Hale in Mexfield (at [94]) who sees the need for reconsideration of Prudential
as “a matter of some urgency”
Judicial change ‘might upset long established titles’ – Lord Browne-Wilkinson
(Prudential) echoed by Lord Neuberger in Mexfield (at [36]) but as‘a not very
attractive point.
For Law Commission/Parliament to implement change not the courts?
Rule helps in holding conceptual distinction between fee simple (duration uncertain)
and term of years (Lord Templeman)
Protecting landlords from unanticipated/accidental consequences – fairness or too
extreme? Sparkes: (1993) LQR 93
Certainty: Clear rule easily applied means parties to the lease and prospective
purchasers know where they stand
Denies the parties stated intentions and flexibility? (As in Ashburn Anstalt?) See also:
Bright (1993) 13 Legal Studies 38; Bridge [2010] Conv 492
Have to work with the rule and minimise its damage
Leases
- Have to know for sure what the maximum duration should be
- Best authority is Prudential and Mexfield and Lace
- The orthodox view
- Have to know at the start what the maximum duration is going to be or you will not
have a valid lease
- How can you work with that rule creatively to get over the fact that this is a harsh
rule
o Can draft your way to success if you know the law
o Intention can be taken into account
o If the term is uncertain, can use LPA 1925 for lease for life to 90 years
o This only applies when there is a lease for life
- The rules established in Prudential and Mexfield is criticised by the judges in those
cases
Certainty: Is the Prudential/Mexfield version certainty justified?
Lord Templeman (Prudential): Lace – reaffirmed 500 years of judicial acceptance
Lord Browne-Wilkinson (Prudential) sceptical-
This bizarre outcome results from the application of an ancient and technical
rule of law which requires the maximum duration of a term of years to be
ascertainable from the outset. No one has produced any satisfactory rationale
for the genesis of this rule. No one has been able to point to any useful
purpose that it serves at the present day.”
- The rule is not overturned despite the criticism
20 years later Lord Neuberger in Mexfield – sympathetic to viewing the law as
unsatisfactory (but note his 6 reasons not to get rid of the rule [35]-[37])
They could have changed the rules but didn’t because
They might upset long established titles
Didn’t want to change the law to affect people’s ownership of land
It is for Parliament to change the law not the courts
Lady Hale in Mexfield (at [94]) who sees the need for reconsideration of Prudential
as “a matter of some urgency”
Judicial change ‘might upset long established titles’ – Lord Browne-Wilkinson
(Prudential) echoed by Lord Neuberger in Mexfield (at [36]) but as‘a not very
attractive point.
For Law Commission/Parliament to implement change not the courts?
Rule helps in holding conceptual distinction between fee simple (duration uncertain)
and term of years (Lord Templeman)
Protecting landlords from unanticipated/accidental consequences – fairness or too
extreme? Sparkes: (1993) LQR 93
Certainty: Clear rule easily applied means parties to the lease and prospective
purchasers know where they stand
Denies the parties stated intentions and flexibility? (As in Ashburn Anstalt?) See also:
Bright (1993) 13 Legal Studies 38; Bridge [2010] Conv 492
Have to work with the rule and minimise its damage
