‘The Bruton tenancy can be a true proprietary interest in land because it confers a sufficiently intense degree of control over access. It has a sufficient degree of “propertiness”’. Discuss.

William Garton - University of Birmingham Law School

Introduction

Lord Hoffman’s leading judgement in Bruton[1] contains two controversial aspects; (1) a tenancy between Mr Bruton and LQHT could exist even though LQHT were mere licensees, and (2) Hoffman’s implied insinuation[2] that an agreement may create a landlord/tenant relationship without creating proprietary estate in land. The latter flowing largely from the ambivalent characterisation of leasehold as either a product of contract or property. The ‘non-proprietary tenancy’[3] (or ‘contractual’ lease[4]) put forward by Hoffman is not consistent with the orthodox property law and in the words of Dixon is a “contradiction in terms”.[5]

I agree with the question statement that a Bruton tenancy is a proprietary interest in land. However, I will recast Hinojosa’s theory based on ‘possession’ through analogy to adverse possession, rather than ‘control over access’, and like Lower,[6] basing my interpretation on the relativity of title. In doing so I will answer the question of how LQHT can grant a proprietary tenancy when they themselves were licensees without an estate in land.

Control over access

The question statement paraphrases Hinojosa’s position[7] which posits “the Bruton tenancy may still be characterised as a proprietary tenancy if we take ‘property’ to mean ‘control over access’”.[8] This is rooted in Gray and Gray’s discussions on property.[9] One of their central concepts is thinking of ‘property’, not as absolute,[10] but a concept relative to the degree of ‘control of access’ given legal protection.[11] Gray defines ‘property’ as ‘power relationships constituted by legally sanctioned control over access to benefits of excludable resources’.[12] It is thus the degree of ‘excludability’ of others from enjoyment of land which determines the ‘propertiness’ of property.[13]

Criticisms of Hinojosa’s position

Lower argues Hinojosa’s continuum of propertiness is “too imprecise a tool to deal with specific legal issues”.[14] Gray and Gray expound three nuanced features of property which establish proprietary rights. However, then go on to say they are too vague for property law which required a precise dissemination of proprietary and non-proprietary rights; “each discrete block of entitlements, each estate or interest in land, must have cleanly-hewn, crystalline edges.”[15] This uncertain distinction is attested to through case law. In Verrall v Great Yarmouth BC[16] the courts granted specific performance to a licence, giving it a proprietary aspect.

Pawlowski interprets Bruton as authority for a tenancy being no more than a “consensually binding agreement between the parties, which only grants a proprietary interest if the grantor has a sufficient interest out of which he has granted it”.[17] When such interest is absent, there is only a purely personal right in a contractual tenancy. He argues this creates a type of ‘quasi-estate’, binding only the original landlord’.[18]

However following this formulation, if there was a dispute over multiple occupants who had mere contractual licenses, the courts would have to resort to exercising their discretion whether to grant equitable remedies such as an injunction or specific performance. This discretionary approach does not bind the courts to apply the ‘first in time’ principle as in normal conveyancing and would have to do a balancing act of all factual considerations, which is an unsatisfactory position.

Criticising Hinojosa, Powlowski[19] and Dixon[20] argue a proprietary interest not binding ‘the whole world’ is contrary to ‘propertiness’. However prior to automatic land registration it was rare to be sure a proprietary interest was good against ‘the whole world’.[21] Even with orthodox leaseholds there is still uncertainty of title. The LRA has the concept of ‘good leasehold titles’, for situations where the freehold title is not registered or not discernible and can still be defeated by a better claim to title.[22]

Kim Lewison (counsel for the plaintiff) argued in his submissions that relativity of title was fundamental to the understanding of the case; “title in English law is founded on possession… it is not absolute. It is relative only”.[23] He cited cases, involving adverse possession,[24] to make the point that if a trespasser can grant a lease, a fortiori, a licensee should also be allowed to grant a lease. From this we can ascertain that Mr Bruton was not arguing for a ‘non-proprietary’ lease, but a proprietary lease based on a relative understanding of title. Indeed, even Lord Neuberger argues “Bruton… was about relativity of title”.[25] The LRA 2002 recognises that prior to making an application to the Land Registry, the adverse possessor has a ‘title’ to the land he possesses[26] demonstrating further the relativity of proprietary interests.

Expanding Hinojosa

A controversial aspect of Bruton is how LQHT can grant proprietary interests when it has none itself;[27] nemo dat quod non habet. Regardless of the de jure agreement between the Council and LQHT at the time, it is clear that LQHT had de facto possession over the property at the time. One can consequently draw an analogy with adverse possession, where there is de facto possession giving the right to grant a lease.

When someone acquires land through adverse possession, they immediately acquire a ‘common law fee simple’ in land, to all except another with better title. This is founded in historical common law,[28] and confirmed in Kay[29] where the House of Lords held a trespasser in possession might grant a lease as a ‘non-estate’ tenancy. The squatter is not entitled to exercise possession but does so anyway. Just as LQHT, as a licensee, is not entitled to possession but exercises it in practice anyway.

Contrary to Pawlowski’s suggestion of a ‘quasi-estate’ only binding the original landlord, I would agree with Hinojosa’s suggestion that “the tenant has enforceable rights against the landlord and against strangers [with the exception of]… the original grantor with superior title”.[30] Once you take a Bruton tenancy to be proprietary through analogy of adverse possession, to the extent it is binding on all others except those with superior title, one can take it further to have a proprietary effect against others deriving title from the same landlord. If there was then a dispute in title, we would apply the general maxim “where the equities are equal, the first in time prevails”, as it can be with any other interest.

Does it matter?

Bruton is arguably a policy based judgement to ensure the finding of ‘tenancy’ in favour of Bruton to ensure he could enforce s.11 Landlord and Tenant Act 1985 implied leasehold covenants so as to avoid the exploitation of those occupying social housing trust properties. I have been arguing that the Bruton tenancy has a proprietary nature throughout this essay, however in Green[31] it is implied that a personal tenancy will still attract statutory protection under housing legislation.[32]

The difference between a proprietary tenancy based on title in possession and on a contractual understanding is so slight and in practice this situation will arise so infrequently as to make this discussion largely a moot point.

Conclusion

I have argued that Bruton is best understood in terms of relativity of title. The House of Lords judgement gives rise to a fettered proprietary lease formulated through analogy with adverse possession, finding articulation in the submissions of Mr Bruton’s counsel. I have recast Hinojosa’s argument as being dependent on possession which is a more appropriate when based on an analogy with adverse possession having a fee simple on all except those without superior title. It can be read consistently with the orthodox understanding that a lease must have a proprietary interest and clarifies how LQHT could have granted a proprietary tenancy when they themselves were licensees without an estate in land.

Bibliography

Legislation

Landlord and Tenant Act 1985

Land Registration Act 2002

Cases

Asher v Whitlock (1866) LR. 1 QB. 1

Perry v Clissold [1907] AC. 73

Verrall v Great Yarmouth BC [1980] 3 WLR. 258

Bruton v London & Quadrant Housing Trust [2000] 1 A.C. 406

Islington LBC v Green and O'Shea [2005] EWCA Civ 56

Kay v Lambeth LBC [2006] 2 AC 465

Berrisford v Mexfield Housing Co-operative Ltd [2011] 3 WLR. 1091

Articles

Susan Bright, ‘Leases, exclusive possession and estates’ [2000] 116 LQR 7

Martin Dixon, ‘The non-proprietary lease: the rise of the feudal phoenix’ [2000] 59 CLJ 25

Kevin Gray ‘Property in Thin Air’ [1991] 50 CLJ 252

John-Paul Hinojosa, ‘On property, leases, licences, horses and carts: revisiting Bruton v London & Quadrant Housing Trust” [2005] 69 Conv. 114

Michael Lower, ‘The Bruton tenancy’ [2010] 74 Conv. 38

Mark Pawlowski, ‘Occupational rights in leasehold law: time for rationalisation’ [2002] 66 Conv. 550

Mark Pawlowski, ‘Contractual intention and the nature of the lease’ [2004] 120 LQR 222

Mark Pawlowski, ‘Meaning of Property in the Leasehold Context’ (2006) 10 L&T Rev. 63

Nicholas Roberts, ‘The Bruton tenancy: a matter of relativity’ [2012] 2 Conv. 87

Books

JE Penner, The Idea of Property in Law (OUP, 2002)

Kevin Gray and Susan Gray, Land Law (5th edn., OUP, 2007)

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[1] Bruton v London & Quadrant Housing Trust [2000] 1 A.C. 406

[2] Ibid 415B (Lord Hoffman)

[3] Martin Dixon, ‘The non-proprietary lease: the rise of the feudal phoenix’ [2000] 59 CLJ 25

[4] Susan Bright, ‘Leases, exclusive possession and estates’ [2000] 116 LQR 7

[5] Ibid 27

[6] Michael Lower, ‘The Bruton Tenancy’ [2010] 74 Conv. 38, 52

[7] Ibid 53

[8] John-Paul Hinojosa, ‘On property, Leases, Licences, Horses and Carts: Revisiting Bruton v London & Quadrant Housing Trust” [2005] 69 Conv. 114, 117-119

[9] Kevin Gray ‘Property in Thin Air’ [1991] 50 CLJ 252, 296

[10] JE Penner, The Idea of Property in Law (OUP, 2002) 49–51

[11] Hinojosa (n 8) 118-119

[12] See, Gray (n 9) 295

[13] Mark Pawlowski, ‘Meaning of Property in the Leasehold Context’ (2006) 10 L&T Rev. 63, 63

[14] Lower (n.6) 8

[15] Kevin Gray and Susan Gray, Land Law (5^th edn., OUP, 2007) 54

[16] [1980] 3 WLR. 258

[17] Pawlowski (n.13) 63

[18] Mark Pawlowski, ‘Occupational rights in leasehold law: time for rationalisation’ [2002] 66 Conv. 550, 553

[19] Ibid 554-555

[20] Dixon (n.3) 27

[21] Nicholas Roberts, ‘The Bruton tenancy: a matter of relativity’ [2012] 2 Conv. 87, 90

[22] Ibid 91, note 35

[23] Bruton (n.1) 408D-E

[24] Asher v Whitlock (1866) LR. 1 QB. 1; Perry v Clissold [1907] AC. 73

[25] Berrisford v Mexfield Housing Co-operative Ltd [2011] 3 WLR. 1091, 65 (Lord Neuberger)

[26] Land Registration Act 2002, sch.6 para.9(1)

[27] Mark Pawlowski, ‘Contractual intention and the nature of the lease’ [2004] 120 LQR 222, 225

[28] Roberts (n.21) 90

[29] Kay v Lambeth LBC [2006] 2 AC 465, [144]

[30] Hinojosa (n.8) 121

[31] Islington LBC v Green and O'Shea [2005] EWCA Civ 56

[32] Pawlowski (n.13) 64

The current state of the law relating to assisted dying in England andWales

William Garton (2015) - University of Birmingham Law School

Substantive Elements

The offence of suicide in England and Wales was abrogated under the Suicide Act 1961 (the ‘1961’ act),^[1] demonstrating a conceptual move away from the Judaeo-Christian view of suicide as a sinful act of self-murder (‘felo de se’),^[2] to viewing it as an act of free will that was better combated through counselling and suicide prevention intervention.^[3] However the same legislation also created the offence of assisted suicide under Section 2(1), stating a person who “aids, abets, counsels or procures the suicide of another… shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”.^[4] This was unprecedented as it is only offence in this area of law where the accessory can incur liability when the principal does not commit an offence.

Section 2 of the 1961 Act has since been amended by Section 59 Coroners and Justice Act 2009.  The effect of this was to create an offence of doing an act which is “capable of encouraging or assisting” another to commit or attempt suicide with the intent that the other is encouraged or assisted. A person convicted is liable for a term of imprisonment not exceeding 14 years.[5]

Procedural Operation

Section 2(1) of the 1961 Act potentially covers a wide range of circumstances with varying levels of culpability. However to bring a prosecution the consent of the DPP is required, which has led to this procedural discretion being fundamental to the numerous attempts to change the law. 

The two main forms of challenges to the law have been as follows:

1) Section 2 of the 1961 Act is incompatible with her ECHR[6] rights, in particular Article 8, the right to ‘private and family life’;^[7] and

2) The DPP’s failure to formalise a policy of when, and in what circumstances, assisting dying will be prosecuted breaches standards of fair warning and consistency in the law.^[8]

The main challenge relating to the incompatibility of the 1961 Act with the ECHR was by Diane Pretty in R (Pretty) v DPP.^[9] Pretty was seeking to challenge the DPP’s refusal to confirm her husband would not be exposed to liability in assisting with her death arguing that refusal infringed upon Articles 2, 3, 8, 9 and 14 ECHR. Her mental competency was not disputed and she sought to draw precedence from the case of Re B.^[10] However the court distinguished this case, highlighting the difference between passively allowing death through omission and actively assisting in suicide^[11] and relied on R v Brown^[12] for authority that a person cannot lawfully consent to anything more than ‘minor injury’.^[13]

Her appeal to the European Court of Human Rights (ECtHR) was then rejected in Pretty v UK.^[14] Pretty’s most effective argument was on the grounds of Article 8 ‘Right to Respect for Private and Family Life’; the others were dismissed. She argued Article 8 also included a right to choose the “way she chose to pass the closing moments of her life”.^[15] The court held that whilst her Article 8 rights had been engaged,^[16] the interference was justified under Article 8(2) as “necessary in a democratic society” for the protection of the rights of others.^[17] Although there was no violation of Article 8, this case was the first time the courts had recognised preventing a person from receiving assistance in ending their life does constitute an interference with human rights. Consequently this case was seen by many to be a clear demonstration that the law on assisted dying needed to be reformed.^[18]

However in 2008 the case of Daniel James[19] demonstrated a shift in the court’s attitude. This case differed from Pretty in that James’ condition was not life threatening, but the permanent tetraplegia follow a rugby accident. Unusually, following the DPP published their reasons for the decision standing that such a prosecution was not in the public interest.^[20] “While there are public interest factors in favour of prosecution… these are outweighed by the public interest factors that say that a prosecution is not needed”.^[21] Referencing^[22] para.5.7 of the Code for Prosecutors 2004,^[23] the DPP said:

“I consider that the offence… under s.2(1) Suicide Act 1961 is unique in that the critical act – suicide – is not itself unlawful. For that reason, I have decided many of the factors in identified in the code… do not really apply in this case”

This was explicit recognition that very few, if any, of the factors listed in the Code were relevant to assisted dying which left the law in a very ambiguous state. There is an argument put forwards by Greasley[24] in favour of this ambiguity stating a formal policy of non-prosecution is more detrimental than not. However in response to this argument I argue that the current position places an overly burdensome moral and ethical discretion on the DPP without safeguards and without accountability.

This was also recognised in a later case of R (Purdy) v DPP,^[25] where Purdy argued the law was dangerously ambiguous and the DPP were under an obligation to provide guidance. Lord Hope recognised that statistically the chance of prosecution were low - “By the time of the hearing there had been 115 such cases. Of those cases only 8 had been referred [by the DPP]” and only 2 of those had been prosecuted.^[26] The court stopped short of holding the discretion under Section 2(4) contrary to Article 8 ECHR and made an order requiring the DPP to “clarify what his position is as to the factors that he regards as relevant for and against prosecution”.^[27]

Prior to the final policy statement the DPP issued an Interim Policy^[28] following an extensive public consultation. Interestingly, all factors were supported except for one against prosecution regarding the status of the victim.^[29] Namely, when the victim “had a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical conditional from which there was no possibility of recovery”.^[30] Examining the cases in which prosecution for assisted dying was not deemed to be in the public interest supports the idea that the physical condition of the victim has indeed been considered relevant to the question of whether or not to prosecute. So initially it seems sensible for the DPP to identify this issue as having some bearing upon the exercise of prosecutorial discretion. Indeed in a survey on who should qualify for assisted dying ‘those with severe disability or illness’ were the most favoured.[31] However many disability representation organisations and disabled individuals expressed concern about this factor^[32] on the grounds that if two cases of assisted dying came to court with identical facts, one person having a terminal illness or incurable disease, it would be a factor in the favour against prosecution. That is to say, people with terminal illness or incurable disease would be afforded less protection under the law. Omitting this factor, the DPP published the Guidelines on Assisted Dying^[33] which contains 16 factors in favour of prosecution and 6 against.^[34]

The Policy in practice

The Policy, rather than clarifying the existing law, has left the law more uncertain. It went further than envisioned in Purdy and James and covered all possible offences under s.2 of the 1961 Act. It states “Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment”.^[35] It also recognises the factors are not exhaustive^[36] and even goes as far as to state that when the factors against prosecution are present, the DPP may still “consider whether nonetheless a prosecution should go ahead”.^[37] The DPP have effectively drafted the policy in such a way as to retain all discretion they previously had prior to Purdy. Arguably, it even extends their discretion by allowing the DPP to have regard to factors not within the policy.

The new Policy claims to provide more protection for the terminally ill than the previous state of the law. However since its implementation there have been no prosecutions for amateur compassionate assisted dying (eg. accompanying a loved one who travels abroad to die for compassionate reasons). As of 1 April 2015 there have been 91 cases of assisted dying referred to the CPS since 1 April 2009.^[38] Of these referrals, 65 were not proceeded with by the CPS, 13 were withdrawn by the police, 8 are currently ongoing and only 1 has been successfully prosecuted.^[39] This one successful prosecution was Kevin Howe,^[40] though his assistance was anomalously provided whilst under the influence of alcohol and not compassionately motivated. As such there have been no compassionately motivated prosecutions out of 91 cases since the Prosecution policy was published. This is not to say that the Policy is not working; these cases may simply have not been in the public interest to prosecute. However this does show that there has been no change in the extent to the DPP’s discretional remit. Even if statistically people who compassionately assist others to take their life are not being convicted, it does not save them from being prosecuted and having to relive the experience in the court room.

The current law forces those seeking an end to their life to look for alternatives to exercise a control over their deaths. This can prompt so-called ‘suicide tourism’^[41] where people travel to a jurisdiction where it is not unlawful. Most common destinations include the Netherlands and Switzerland. However, there are numerous cases where people cannot afford or are simply unable to travel. During the second reading for the Assisted Dying Bill in the House of Lords, Lord Falconer said "the current law provides the option of an assisted death to those rich enough to go abroad; for the rest, it provides despair and often a lonely, cruel death—and no adequate safeguards".^[42] This creates a dual legal standard where those who can afford to travel to Switzerland can escape liability, whereas those who cannot and rely upon assistance open the person assisting up to liability.

Conclusion

The current state of the law on assisted dying is in an extremely precarious position. The Prosecutorial Policy establishes guidance but allows new factors to be created without a legislative footing, leaving the DPP an extremely wide discretionary remit. The Policy as a whole is structured with retrospective factors for and against prosecution, none of which grant protection before the actual act. In the words of Hale; ‘A major objective of the criminal law is to warn people they are liable to prosecution if they act contrary to it. People need and are entitled to be warned in advance so they can behave accordingly’.^[43] For this reason I believe failing to enact legislation to ensure proper safeguards is indefensible. Decision cannot and should not be made by the DPP and must be left to legislation. The only way to rectify the current law is to draft and enact proper legislation providing limited exceptions to the offence and proper safeguards. The idea of enacting legislation might not be as radical as it might initially seem; Lord Falconer's Bill has progressed further than any of legislation of the same kind and in the words of Reidy, the DDP Policy is 'the first step towards legalising assisted suicide'.^[44]

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[1] Suicide Act 1961, s.1

[2] Assisted Dying HL Bill, HL Committee (2^nd Day), 16 January 2015, Column 1017 (Lord Dobbs)

[3] Westminster: The Church information office, Ought Suicide to Be A Crime? A Discussion of Suicide, Attempted Suicide and the Law (Church Information Office, 1959)

[4] n(1) s.2(1)

[5] Ibid s.2(1C)

[6] Convention for the Protection of Human Rights and Fundamental Freedoms (1950); herein ‘ECHR’

[7] Sheila Reidy, ‘English law on assisted suicide a dangerous position’ [2012] 18 MLJI. 67, 68

[8] Kate Greasley, ‘R. (Purdy) v DPP and the Case for Wilful Blindness’ [2010] 30 OJLS 301, 304

[9] [2002] 1 AC 800

[10] Re B (Adult: Refusal of Medical Treatment) [2002] 2 AER 449

[11] n(9) 94

[12] (1993) 2 All ER 75

[13] n(9) 110 (Lord Hobhouse)

[14] (2002) 35 EHRR 1

[15] Ibid 100

[16] Ibid 67

[17] Ibid 68-78

[18] Author Schopenhauer, Studies in Pessimism (Cosimo, 2007), 28

[19] Keir Starmer, ‘Decision On Prosecution - The Death By Suicide Of Daniel James’ (9 December 2008) <http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/> accessed 23.12.14

[20] Ibid

[21] CPS Press Release, ‘No charges following death by suicide of Daniel James’ (9 December 2008)  <http://www.cps.gov.uk/news/latest_news/179_08/> accessed 23.12.14

[22] n(19) para.28

[23] DPP, ‘Code for Crown Prosecutors’ (February 2010), <http://www.cps.gov.uk/publications/docs/code2010english.pdf> accessed 23.12.14

[24] Kate Greasley, ‘R. (Purdy) v DPP and the Case for Wilful Blindness’ [2010] 30 OJLS 301,

[25] [2009] UKHL 44

[26] Ibid para.30

[27] Ibid 422-23 (Lord Hope)

[28] DPP, ‘Interim policy for prosecutors in respect of cases of assisted suicide’ (2009) <http://www.cps.gov.uk/consultations/as_policy.html> accessed 22.02.15

[29] More than 1500 respondents argued that it may be discriminatory to include factors relating to the health and disability status of the victim. See; DPP, 'Public Consultation Exercise on the Interim Policy’ (2009), ‘Annex B: Equality and Diversity Impact Assessment', para 25

[30] n(28) para.9

[31] Appendix 2

[32] Leslie Keegan, 'Right to Die Bill is a Step in the Right Direction' [2003] SJ, 22

[33] DPP, ‘Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’ (2010) <http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html > accessed 22.02.15

[34] Editors, ‘Legal News: Assisted-dying guidelines clamp down on medically-aided suicide’, [2010] SJ <http://www.solicitorsjournal.com/news/public/care/assisted-dying-guidelines-clamp-down-medically-aided-suicide> accessed 17.03.15

[35] n(25) para.39

[36] Ibid para.47

[37] Ibid para.39

[38] This date it taken to coincide with the introduction of the Coroners and Justice Act 2009

[39] Sally Lipscombe, ‘Assisted Suicide’ House of Commons Library Standard Note SN/HA/4857, 3 <http://www.parliament.uk/briefing-papers/SN04857.pdf> accessed 12.03.15

[40] R v Kevin James Howe [2014] EWCA Crim 114

[41] Charlie Cooper, ‘The 'suicide tourists': 126 Brits opt for assisted death in Switzerland since 2008’ (21 August 2014) <http://www.independent.co.uk/life-style/health-and-families/health-news/the-suicide-tourists-126-brits-opt-for-assisted-death-in-switzerland-since-2008-9681696.html> accessed 12.03.15

[42] Assisted Dying HL Bill, HL Second Reading, 18 July 2014, Column 777

[43] n(25) 59 (Baroness Hale)

[44] n(7) 74