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)
[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 (5th 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
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