As the Property Bar Association looks to the future with its new student essay competition, Matt Henderson takes top prize: publication in Estates Gazette
The first objective of the Property Bar Association’s constitution is to promote the interests of its members, with particular focus on recruitment and training. But that can be difficult when, as Peter Petts, a barrister at Hardwicke Chambers and the PBA secretary, puts it, “Property law is not one of the sexy academic subjects.”
As part of an ongoing bid to increase the appeal of property law as a career to students, the PBA launched its inaugural student essay competition, an idea conceived by Jennifer Meech of Enterprise Chambers. Entrants were invited to respond to the question: “If you could appeal a land law decision of the House of Lords or Supreme Court, which would you choose and why?”
Petts added: “The competition attracted entries from as far apart as Durham and Sussex, on topics as diverse as estate contracts, certainty of lease terms, tolerated trespass and overriding interests.” While initially intended as a biennial event, he said that the success of the competition was “beyond anyone’s expectations”, and the PBA now hopes it will become an annual fixture in professional and academic calendars.
A marking panel of leading and junior property barristers selected the three finalists, and those essays were then ranked by the Chancellor Sir Terence Etherton, and principal tribunal judge and former law commissioner, Judge Elizabeth Cooke.
Adam Waring, of the University of Sheffield, secured third place with a critique of Stack v Dowden [2007] UKHL 17; [2007] PLSCS 82. The runner up, with an essay on AIB Group (UK) plc v Mark Redler & Co (a firm) [2014] UKSC 58; [2015] EGLR 34, was Matthew Mills, of City University London. First place went to Matt Henderson, of BPP Law School, London, for his insightful exposition of the conceptual incoherence of Bruton v London and Quadrant Housing Trust [1999] 2 EGLR 59.
Praising the winner, Judge Cooke said: “It is a wonderfully clear and well-argued analysis of the case, showing a keen awareness of the wider issues and the practical context as well as of the more theoretical academic material.”
The prizes of £1,000, £500 and £250, plus copies of Megarry & Wade: The Law of Real Property, were presented by the Chancellor at the association’s biennial Bar & Bench party, in Inner Temple, on 21 April. The second-placed and third-placed entries can be read online on EGi, while Henderson’s winning essay follows in full.
Bruton v London and Quadrant Housing Trust – “an unfortunate landmark that needs to be reversed”
By Matt Henderson
London and Quadrant Housing Trust (“LQHT”) held a licence from Lambeth Borough Council to use a block of flats for temporary social housing. In turn, LQHT granted a licence to Mr Bruton for one flat. Subsequently, Bruton claimed that he had been granted a lease on the flat and therefore LQHT was subject to a repairing obligation under section 11 of the Landlord and Tenant Act 1985.
The House of Lords held, following Street v Mountford [1985] 2 WLR 875, that Bruton was in exclusive possession and therefore a relationship of landlord and tenant existed with LQHT. Further and more controversially, this lease did not create a proprietary interest and the fact that LQHT did not have an estate in land was no impediment to granting a lease to Bruton. This essay will argue that the concept of a non-proprietary lease advanced in the judgment by Lord Hoffmann deviates from orthodox theories of property law, lacks conceptual coherence and causes practical difficulties. The judgment should, therefore, be reversed.
First, the finding of a lease whose nature is personal, not proprietary, deviates from orthodox understandings of a lease as an estate in land. Lord Hoffmann’s judgment suggests that a lease is simply a descriptive label attached to “a relationship between two parties who are designated landlord and tenant” and has no inherent proprietary characteristic. Further, a lease “may and usually does create a proprietary interest”, but such an interest is a secondary step, not inherent in the lease’s creation.
It is submitted that a non-proprietary lease is conceptually incoherent as there is nothing to distinguish it from a personal licence. The loss of a lease’s proprietary character renders it a mere personal arrangement. Without its proprietary character, the lease cannot bind third parties and exclusive possession cannot be enforced against those with a proprietary right, for example the freeholder, Lambeth. (This was confirmed in Kay v Lambeth [2006] UKHL 10, a case on identical facts.) Consequently, if the tenant is not empowered to exclude the whole world because exclusive possession applies against the grantor but not a party with a better title, then it is difficult to characterise the non-proprietary lease as having exclusive possession at all; rather a non-proprietary lease only confers exclusive occupation (against the grantor), just as a contractual licence does. Thus the two concepts are identical and the non-proprietary lease is, as Dixon surmises, a “contradiction in terms” (Dixon, Cambridge Law Journal [2000], 59(1), 25-28).
A second conceptual problem with the judgment is that it supports the creation of a lease irrespective of the type (or lack) of estate that the grantor holds. Traditionally, a lease must be carved out of a superior estate and cannot be granted by a party without an estate in land – nemo dat quod non habet. However, by holding that LQHT, which had no proprietary interest, could grant a lease, this orthodoxy is disregarded. It is submitted that this is difficult to reconcile with the judgment in Milmo v Carreras [1946] KB 306, a case not cited in Bruton, that a tenant who purports to grant a sub-lease for a term equal or greater to their own, is taken to have assigned their lease. This is because the grantor of a lease must have a greater interest so that the (sub-) lease can revert back to him at its termination. This principle underlines the essential quality of tenure in a lease and suggests a purely contractual lease would be without foundation.
Counsel for Bruton, as well as subsequent academic writers, have advanced an argument based on relativity of title. This argument suggests that LQHT held a possessory fee simple title by virtue of actual possession and that Bruton’s lease could be granted from this. The lease would then be good against the whole world except those with a better title (Lambeth) – in this sense it has a circumscribed proprietary nature. This argument is underpinned by the concept that possession alone, rather than adverse possession, is the root of title. However, this argument fails on two counts: first, because, as the line of cases culminating in Sze v Kung [1997] 1 WLR 1232 demonstrate, it is adverse, not consensual, possession which gives rise to a possessory fee simple title and, second, because the possession of both LQHT and Bruton was explicable by their respective consensual licences.
These conceptual problems are also manifested practically. First, the division of leases into two categories, proprietary or non-proprietary, creates additional uncertainty by eroding the boundaries of discrete orthodox categories of property ownership. Indeed, even proponents of a relativist view of property admit that the legal system cannot cope with the nuances implicit in a spectrum of subdivided types of ownership. Second, the management of social housing stock is now made more uncertain as it is unclear whether a non-proprietary lease will operate as a lease for all statutory purposes and attract all statutory protections, or whether their operation is limited to the ambit of section 11 of the Landlord and Tenant Act 1985, which was under consideration in Bruton.
Under the modern system of registered land in England and Wales, title is a product of registration, not de facto possession. Further, the ownership of estates in land can be definitively ascertained by reference to the register. This is a system moving towards absolute conception of title and it is premised on certainty of title. The non-proprietary lease is an aberration ill-suited for this world as it lacks conceptual coherence and erodes discrete and established categories of land ownership. Moreover, the judgment is founded on a conception of relative title which is being marginalised; it is an unfortunate landmark that needs to be reversed.
A FEW WORDS WITH THE WINNER
Matt Henderson was thrilled to win and delighted to experience the added bonus of seeing his name in print. This accolade was a satisfying step, in particular as it “seemed quite out of reach” at first.
Explaining his interest in property law, he said: “I like the interplay between black-and-white law and the more case-led law and the fact that there is a rigid structure, but also scope within that for development.”
Henderson volunteers as a duty officer defending local authority tenants facing possession proceedings. Bruton was therefore a natural choice: “This case goes to the heart of the difference between a lease and a licence, and brings in elements of social policy, housing policy and how we manage the housing stock in London.” His next step is a pupillage at Landmark Chambers. No doubt he will acquit himself well.
