Like their Whoville cousins, every Lex in Lexville loved Christmas a lot. But the Grinch, who lived just south of Lexville and had a heart two sizes too small, still really did not! So, with only mischief in mind, and dressed as Santa Claus with his dog Max disguised as a reindeer, he planned dastardly ways to ruin Lexville’s festive fun-filled days.
Stopping the whole thing
Skidding down the hill on his ramshackle sleigh, the Grinch thought gloomily about the Christmas shop, which was currently doing a roaring trade, no thanks to the Lexville judge who had ordered the landlord to renew the tenant’s lease. The judge had decided that the alterations that the landlord planned to make to the property when the tenant’s lease ended were a stunt to obtain vacant possession. The alterations did not pass the test laid down in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62; [2019] EGLR 4: that the landlord intended to carry out the work no matter what the tenant planned. So the shop remained packed with ribbons, wrappings, tinsel, trimmings and all the hateful trappings of Christmas.
The Grinch cheered up when he noticed that all the windows in Lexville were dark. Many of the townsfolk had been forced to hang curtains in their windows, following the decision in Fearn and others v Trustees of the Tate Gallery [2019] EWHC 246 (Ch); [2019] EGLR 15 that, although the law of nuisance is capable of protecting the privacy of one’s home in an appropriate case, self-induced exposure to the world does not create a liability in nuisance. So the Grinch would not have to witness the citizens of Lexville putting up their mistletoe and holly and hanging up their stockings as he passed.
Then the Grinch had an idea. Perhaps the Christmas shop would close and the tenant would have to move away when he discovered that Christmas would not be coming to Lexville after all? He hummed Grinch-ishly. The tenant would be able to argue that the lease of the shop, which he had only recently signed, had been frustrated. The court had decided that Brexit did not frustrate a lease in Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 Ch; [2019] EGLR 17, but the wonderful, awful non-appearance of Christmas would be even more seismic an event than Brexit.
A great Grinchy trick
Max and the Grinch’s first visit was to the home of a Lex-tenant, whose wife was wheelchair dependent. He knocked on the door and was warmly greeted. This made the Grinch feel a little defeated. He asked what present the Lex-tenant most wanted. The answer was quick: “Consent to have my Lex-flat wheelchair adapted.” The Grinch smiled wickedly and said: “You have my heartfelt commiserations! Do you know your Lex-lease contains an absolute covenant against alterations?”
The Lex-tenant went on to recite without hesitation, the decision in Smailes and another v Clewer Court Residents Association [2019] PLSCS 31. Following Smailes, his landlord was required to make reasonable adjustments to comply with his duties under the Equality Act 2010. This meant granting consent to widen the den, even if the Lex-lease contained an absolute covenant against alterations.
Good will to all
Slinking away, the Grinch soon encountered a Lex-MP with a yuletide hamper. “Hello, hello,” chimed the Grinch, who had a sprig of holly pinned to his Santa suit. Instantly sensing an opportunity for a festive downer, the Grinch informed the Lex-MP that she would be sitting tomorrow. At which the Lex-MP’s brow did furrow. The Grinch stated that the reason was to enact legislation to implement an English-style “right to rent” scheme.
The Lex-MP told the Grinch that he was mistaken. Following R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin), implementation of Lexville’s scheme was put on hold. In England the court had declared the scheme unlawful and contrary to Articles 8 and 14 of the European Convention on Human Rights. The evidence showed that, under the scheme, landlords discriminated against prospective tenants who had a lawful right to rent, on the basis of ethnicity and nationality.
Glad tidings
In the blink of an eye the Grinch was again up to no good. He told all Lexville landlords that they could not seek possession of properties let on fixed-term assured shorthold tenancies (ASTs) of two years or more without giving six months’ written notice to their Lex-tenants. The Lex-landlords collectively cried: “Fake news!” The Grinch was plain wrong. In Livewest Homes Ltd (formerly Known as Laverty Ltd) v Sarah Bamber [2019] EWCA Civ 1174; [2019] EGLR 40, the court held that, under section 21(1B) of the Housing Act 1988, landlords were not required to give a tenant six months’ notice when exercising a break clause to terminate an AST with a fixed term of two years or more. Surprisingly, the Grinch felt a warm and tingly feeling. Were these glad tidings giving some meaning to his life?
Gotta have faith
The Grinch had been planning to remove all the decorations from the office of Cindy-Lou Lex, professor of law at Lexville University. However, as he slid down the chimney, he found a tutorial in full swing. Listening intently while hiding behind a poster for Professor Lex’s new best-seller How many laws does Santa break every Christmas Eve?, the Grinch was fascinated to learn that the concept of good faith may now be accepted in English contract law. In Bates and others v Post Office Ltd (No 3) [2019] EWHC 606 (QB), Fraser J held that the law does allow for relational contracts, into which it will imply an obligation on the parties which can be described as good faith, fair dealing, or a duty to co-operate.
The Grinch learned that the decision is not without its critics. There are a number of cases where judges have refused to accept that relational contracts exist, and the editors of Chitty on Contracts have criticised the concept of good faith as being imprecise and difficult to define. But Professor Lex explained that, in a recent judgment in New Balance Athletics, Inc v The Liverpool Football Club and Athletic Grounds Limited [2019] EWHC 2837 (Comm), Teare J had accepted that the concept exists and stressed that a court must ask “whether reasonable and honest people would regard the challenged conduct as commercially unacceptable”. The Grinch slipped back up the chimney, feeling even warmer and tinglier.
Making amends
As he did so, an essay written by one of the professor’s students became snagged in his Santa suit. The Grinch noticed and read it as he and Max paused for a rest at the top of Mount Crumpit. It was a fascinating discussion of the Court of Appeal’s decision in FSHC Group Holdings Ltd v GLAS Trust Corporation Ltd [2019] EWCA Civ 1361, clarifying the law on the rectification of a written contract because of a common mistake.
Leggatt LJ explained that there are two different tests – one objective and the other subjective – which apply in different circumstances. Where the parties have entered into a binding agreement to execute a contract containing certain terms, but actually enter into a contract containing different ones, the courts will vary the second contract to reflect the original agreement and will use the objective rules of contractual interpretation to ascertain the correct terms to be implied.
However, in the absence of a binding prior contract, if the parties have an agreed understanding or common intention about a particular provision (and there has been an expression or communication of that intention between the parties), the courts will accept subjective evidence from the parties as to what they had intended the contract to say.
A merry sound
The Grinch contemplated his disguise as Saint Nick. It may have deceived the inhabitants of Lexville, but he suspected that the Lexville court would have seen through it. After all, the court was used to cutting through the guise of words – to paraphrase Lord Denning, cited in Sequent Nominees Ltd (formerly Rotrust Nominees Ltd) v Hautford Ltd [2019] UKSC 47; [2019] EGLR 52, in which the court ruled that the combined effect of the planning and user clauses in a lease offered a real measure of protection against the risk of enfranchisement and justified the landlord’s refusal to allow its tenant to apply for planning permission for a change of use that would increase the risk that it would be deprived of its reversion.
Then the Grinch looked at his sleigh, laden with Christmas goodies from Lexville, teetering on the edge of Mount Crumpit. One small push would deprive the inhabitants of Lexville of their Christmas. The Grinch was well aware that it is possible to obtain relief from the forfeiture of proprietary and possessory rights over both personalty and real property (as a result of Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co [2019] UKSC 46; [2019] EGLR 51). But there was absolutely no one who could grant Lexville relief from the forfeiture of their Christmas. So it was up to him.
As the Grinch paused, he heard a merry sound below that sent him whizzing back to Lexville with a heart three sizes bigger than it had been before. Every Lex in Lexville was singing. The Grinch hadn’t stopped Christmas from coming at all! Maybe Christmas, he thought, doesn’t come from a store. Maybe Christmas, means a little bit more!
Allyson Colby is a property law consultant, Elizabeth Dwomoh is a barrister at Lamb Chambers and Stuart Pemble is a partner at Mills & Reeve
