Old common law rule

Old common law ruleIntroductionThe honest-to-god common law rule of The demise of nemo dat quod non habet that a person cannot convey a greater surname than that person already has and a person holding a licence cannot convey the superior title of a lease. This old comman law rule had been followed for many years, until the House of Lords determination in Bruton. The House of Lords in Bruton held that mortal with no interest in demean can deal out a lease provided that the exclusive possession is give in the agreement. I will explicate and critically evaluate the House of Lords decision in the followings. House of Lords DecisionThe House of Lords took the opposite view with the Court of Appeal and held that the agreement mingled with the verify and Mr.Bruton was a lease. I will explain the decision below.Applying road v MountfordThe House of Lord decision in road had been strictly applied.1 correspond to Street, the agreement between the authority and Mr.Bruton could be a lease/ occupation if the three elements of 1) exclusive possession 2) term and 3) rent are satisfied. The agreement permitted Mr.Bruton to occupy a flat in the block on a short-term basis for a weekly sum of ?18. The elements of term and rent are thus satisfied.Whether Bruton had exclusive possessionWhether the requirement in Street can be satisfied depends on whether Mr.Bruton had exclusive possession. Although the agreement expressively referred it as a licence, it is irrelevant. Lord Hoffmann said that the language used, such as licence, is irrelevant. It is the authorized construction that identifies it as a lease.2Exclusive possession is a question of law that depends on the characteristic of the terms agreed. Lord Hoffmann said that the Trust simply gave Mr.Bruton a cover to exclusive possession and there was no suggestion on shared possession.3Effect of the arriere pensee clauseAlthough the Trust reserved circumscribed right of entry for the purpose of inspection an d repair, still exclusive possession was given to Mr. Bruton. Lord Hoffmann used the case of Westminster City Council 1992 as reference .In Westminster City, the nevertheless rights which it reserved were for itself and the council to enter at certain times for limited purposes. He further relied on the judgment of Lord Templeman in Street, and deduced that such an express reservation only further reinforced the entitlement of Mr. Bruton to exclusive possession.4Special Circumstances Charitable objectiveCould the good-hearted objective and the lack of interest in land of the Trust be considered to be special circumstances? Lord Hoffmann stated that the character of the landlord is irrelevant. He said that Although the Rent Acts and other Landlord and Tenant Acts do make distinctions between different kinds of landlords, it is not by saying that what would be a moving in if apt(p) by one landlord will be something else if granted by another.5 Therefore, the charitable objective of the Trust did not constitute to a special circumstance.Could a landlord with no interest in land grant a lease/ occupancyThe general rule is that if the landlord has no interest in land, he is in lack of capacity to grant a lease.The House of Lords relied on Family Housing tie-up to justify that there was no special circumstance existed for making an exception to the principle in Street. The House of Lord considered that Family Housing Association v. Jones was wrongly noble in the Court of Appeal. Lord Hoffmann regarded the fact in this case was very homogeneous to that in Bruton. The crucial element is that in Family Housing Association, the grantor substantiate no legal title, nonetheless, Slade L.J. concluded that the grantor have no legal title was not constitute an exception to the principle in Street. Therefore, the Housing Trust could grant Bruton a moving in despite that the Trust had no interest in land.Tenancy by EstoppelMillettL.J. in the Court of Appeal said tha t an agreement could not be a lease unless it created a legal estate in the land which binds the whole world. He said that the only exception in this case that the grantor could grant a lease was by tenancy by estoppel.Lord Hoffmann thought that MilletL.J. was misled by the term of tenancy by estoppel that an agreement which could not otherwise be a lease or tenancy yet which was treated as being one by virtue of an estoppel.6 Lord Hoffmann and Lord Hobhouse thought that tenancy by estoppel was not a correct analysis. In this case, estoppel arises from the agreement, not the other way round.Critical EvaluationContrary to the intention of legislation/ ParliamentAccording to section 32(3) of the Housing Act 1985, the Council had no power to grant the Housing Trust a tenancy. Therefore the intention of the legislation was that the assertion could only have the capacity to grant licence to homeless people on a evanescent basis. The House of Lords decision totally ignored the intentio n of the legislation. The duty of a Judge is not to make law, but to interpret the intention of the Parliament. In this case, I think that the intention of the Parliament in section 32(3) is to provide temporary accommodation for homeless people through the Housing Trust by granting licence. The intention of Parliament should be supreme and should be strictly followed by the Judges.Street v Mountford should be distinguishedAlthough the agreement expressly stated that it is in the form of a licence. The House of Lords still found that the agreement was a tenancy because the agreement grants exclusive possession to Mr.Bruton.Charitable objective of the Trust should be constituted as a special circumstance that constructs the agreement as a licence despite the rule in Street. Lord Hoffmann regarded that the charitable objective of the Trust is irrelevant and there was no distinction among other landlords. Again, Lord Hoffmann did not follow the intention of the Legislation/ Parliament. The Rent Acts and other Landlord and Tenant Acts do make distinctions between different kinds of landlords. In my opinion, the characteristic of charity does prohibit the Trust from granting a tenancy, since providing a temporary accommodation for people in need required a high degree of flexibility. Therefore a charitable trust should only grant licence rather than tenancy. The decision in Street should be distinguished due to these special circumstances.No exclusive possessionI think that exclusivity of possession should be judged in an objective basis. All the terms in the agreement and the intention of the parties should be taken into account. Therefore the reservation clause should be interpreted objectively. As it was an express clause, there was strong evidence showing that the Trust intended not to give exclusive possession to Mr. Bruton. Moreover, with the right of entry is reserved by the Trust, it could hardly be concluded that exclusive possession was given to Mr. Bruto n.FloodgateAfter Bruton, a new type of tenancy called personal tenancy is created. In Bruton, the grantor with no interest in land can still grant a lease. This decision totally departed from the old rule that a person holding a licence cannot convey a lease. After Bruton, Kay v Lambeth 2004 and capital of the United Kingdom Borough of Islington v Green and OShea 2005 both substantiate that a personal tenancy could be granted by someone with no interest in land. 7The nature of personal tenancy seems to be similar to that of a contractual licence. Unfortunately, the House of Lords did not distinguish personal tenancy from contractual licence. The result would be potentially dangerous since a licence granted by the landlord maybe eventually interpreted as a personal tenancy by court according to Bruton. A floodgate situation would be resulted, since every licensee would argue that a personal tenancy should be granted instead of a licence.RegistrationThe personal tenancy creates no in terest in land and the nature of a personal tenancy is similar to that of a contractual licence. A contracts or leases (but not oral lease) are registrable under LRO s.2 but a contractual licence is not registrable under L.R.O, s. 2.. Therefore it is doubtful whether a personal tenancy created in Bruton is registrable.ConclusionAfter the above analysis, I do not think that the decision of the House of Lord in Bruton is a good decision. It created un inference in whether someone with no interest in land can grant a lease or not. Although in Bruton, and the latter case of Kay 2004 and Green 2005 confirmed that a grantor with no interest in land can grant a personal tenancy. But the old common law rule of The demise of nemo dat quod non habet still needed to be considered. And Lord Hoffmann did not give a concrete reason on not applying the old common law rule.It also blurred the requirement of refreshing an exclusive possession. In Bruton, the tenant of the personal tenancy has enfor ceable rights against the landlord and against strangers,8 except the original grantor (the council), which has a superior title.9 As the tenant cannot enforce his right against someone who has the superior title, the element of exclusive possession in the personal tenancy is in doubt. The House of Lords created an uncertainty in determining whether exclusive possession had been given in the assignment.Lastly, certainty in law and the intention of the Parliament should be strictly observed. And the decision of the House of Lord in Bruton disrupted the legal certainty and contravened the intention of Parliament. Therefore, it cannot be a correct decision.Per Lord Templeman in Street v Mountford, supra at p.818Per Lord Hoffmann in Bruton v London quadrant Housing Trust, supra at p.413Per Lord Hoffmann in Bruton v London Quadrant Housing Trust, supra at p.414Per Lord Hoffmann in Bruton v London Quadrant Housing Trust, supra at p.414Per Lord Hoffmann in Bruton v London Quadrant Hou sing Trust, supra at p.414Per Lord Hoffmann in Bruton v London Quadrant Housing Trust, supra at p.414Mark Pawlowski, James Brown, Case Comment Bruton A new species of tenancy?, Landlord Tenant Review 2000M. Harwood, rental Are They Still not Really Real? (2000) 20 Legal Studies 503 at p.513John-Paul Hinojosa, On lieu, Lease, Licences, Horses and Carts Revising Bruton v London Quadrant Housing Trust, Conveyancer and Property Lawyer 2005