Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

terms

Re: terms

Postby preacherman » Mon Sep 18, 2017 10:50 am

dls wrote:There is no discretion for a judge to transform something into a tenancy which cannot be a tenancy.

It is a licence of some sort Confusingly, and unhelpfully, it may be a tenancy at will (not a tenancy).


they cant do that said otherwise.maybe its a gift from above!

it cant be a tenancy at will as the exchange for payment is specific. There is also a contract signed and witnessed.

'This right of termination and ability for either party to bring the agreement to an end at any time is the most important feature of a tenancy at will.'
User avatar
preacherman
 
Posts: 987
Joined: Wed Nov 07, 2012 3:09 pm

Re: terms

Postby dls » Mon Sep 18, 2017 11:51 am

P
I give up.
You appear determined not to understand simple words.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 12136
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Re: terms

Postby theycantdothat » Mon Sep 18, 2017 1:45 pm

There are the following possibilities:

·A tenancy at will. I think that has to be ruled out as there are too many contra-indications in the document.

·Rectification. A party successfully argues that the document does not record what was agreed. Ideally you want some clear indication in writing of what was agreed and that does not seem to be available. What may help is an argument that the parties are highly unlikely to have agreed that either can keep the tenancy running indefinitely by declining to agree to terminate the tenancy.

·The document creates a periodic tenancy. The court holds that the intention to create a periodic tenancy is clear and that the notice provision is no more than a drafting error. In conveyancing using the right words is important. Historically it was a lot more important, but where documents were drafted by non-lawyers the courts (recognising that laymen may not appreciate the important of using the correct term of art) were inclined to give effect to the intentions of the parties. I think this approach is still alive.

·The document is void for uncertainty. The court holds that terms are contradictory and irreconcilable and therefore the document is void.

·The document is void because it attempts to achieve the impossible. The court holds that the apparently contradictory and irreconcilable terms must be read together and that the intention was to create a tenancy which continued until both parties agreed it would end. That is not allowed and accordingly the document is void to create a tenancy.

·The document creates a licence. On its face the document states it is creating a tenancy and that has to go a long way to ruling out a licence. However, just as a document which purports to create a licence may in fact give rise to a tenancy, so a document purporting to create a tenancy may give rise to a licence. For that to happen though I think there has to be an indication that the "tenant" does not have exclusive occupation of a given area, i.e. a "tenancy" of an area which changes at the "landlord's" will. It does not though follow that a document which fails to grant a tenancy necessarily grants a licence. If a document is declared void for uncertainty, then it has to be void for any purpose. Finally, where there is a question of whether an arrangement is a tenancy or licence it is necessary to look beyond the documentation. If the occupier has de facto exclusive occupation and the occupation is not otherwise explained and there was an intention to enter into legal relations there will be a tenancy.

If the document did not create a tenancy I think a periodic tenancy has to have arisen because the occupier has been in exclusive possession paying rent. On way or another therefore there has to be a tenancy. Whatever the legal niceties, I cannot see a county court finding otherwise.
theycantdothat
 
Posts: 1129
Joined: Fri Nov 02, 2012 7:36 pm

Re: terms

Postby preacherman » Mon Sep 18, 2017 2:19 pm

thanks theycantdothat why is is not allowed? I thought two people could contract to do whatever they want as long as it is legal?

·The document is void because it attempts to achieve the impossible. The court holds that the apparently contradictory and irreconcilable terms must be read together and that the intention was to create a tenancy which continued until both parties agreed it would end. That is not allowed ???and accordingly the document is void to create a tenancy.
User avatar
preacherman
 
Posts: 987
Joined: Wed Nov 07, 2012 3:09 pm

Re: terms

Postby theycantdothat » Mon Sep 18, 2017 3:42 pm

preacherman wrote:thanks theycantdothat why is is not allowed? I thought two people could contract to do whatever they want as long as it is legal?

·The document is void because it attempts to achieve the impossible. The court holds that the apparently contradictory and irreconcilable terms must be read together and that the intention was to create a tenancy which continued until both parties agreed it would end. That is not allowed ???and accordingly the document is void to create a tenancy.


It is a requirement of the law that the duration of a tenancy must be certain. You need to know when it start and its maximum duration.

The following comply with the requirement:

·A lease for a fixed term even if it contains a forfeiture clause.

·A lease for a fixed term with a right to break, whether exercisable by landlord or tenant or both.

·A periodic tenancy. (It may appear that this does not meet the requirement, but it is treated as being initially for a fixed period which continues if notice is not given. The point is that at any given moment the parties know the maximum duration.)


The following do not comply with the requirement:

·A lease granted until or calculated with reference to a future event, e.g. "until HIgh Street Newton is pedestrianised" or "until one month after the date on which the landlord is granted planning permission to convert the property into flats".

·A periodic tenancy which can only be terminated by one party - see here: http://swarb.co.uk/centaploy-ltd-v-matlodge-ltd-1974/ A periodic tenancy which can only be terminated if the parties agree is to the same effect.
theycantdothat
 
Posts: 1129
Joined: Fri Nov 02, 2012 7:36 pm

Re: terms

Postby preacherman » Mon Sep 18, 2017 5:30 pm

thanks again.

so the reasoning in the case you mentioned:

'Both landlords and tenants must have unqualified rights to determine tenancies, irrespective of their contractual intentions
This case overruled Re Midland Railway Agreement [1971]'

in my case it does not deny the landlord any right to terminate? it just has to be agreed.

I like the sound of life long tenancy
In Mexfield it was held that the common law position in England was that an uncertain lease amounted to a lease for the tenant’s life, determinable before then if the contingency arose. Section 149(6) of the Law of Property Act 1925 converts such leases into leases for 90 years determinable on the death of the original lessee.

In Mexfield, the Supreme Court was of the opinion that if a periodic tenancy is void because the right of at least one of the parties is subject to an uncertain fetter, it can nevertheless take effect as a contractual licence as between the original parties determinable in accordance with its terms Mexfield Housing Co-operative Ltd v Berrisford [2012] 1 A.C. 955, [58] – [63] (Lord Neuberger M.R.)). This was obiter but is in line with the earlier English Court of Appeal decision in Joseph v Nettleton Road Housing Co-operative Ltd ([2010] EWCA Civ 228, CA (Eng)).
User avatar
preacherman
 
Posts: 987
Joined: Wed Nov 07, 2012 3:09 pm

Re: terms

Postby preacherman » Mon Sep 18, 2017 5:50 pm

https://hklandlaw.wordpress.com/2011/11 ... -for-life/


contractual effect (binding only on the parties) is to be given to a licence agreement that cannot take effect as a lease (because of uncertainty of term). This is so even if the parties thought that they were creating a lease. Similarly, contractual effect (binding only on the parties) can be given to an invalid, indeterminate fetter on the right to serve a notice to determine a periodic tenancy.
User avatar
preacherman
 
Posts: 987
Joined: Wed Nov 07, 2012 3:09 pm

Re: terms

Postby preacherman » Tue Sep 19, 2017 7:09 am

dls wrote:P
I give up.
You appear determined not to understand simple words.


you should never give up dls! maybe get better legal advice!

[i]f the agreement is incapable of giving rise to a tenancy for some old and technical rule of property law, I do not see why, as a matter of principle, that should render the agreement invalid as a matter of contract.” [para. 60]MEXFIELD HOUSING CO-OPERATIVE LTD V BERRISFORD [2011] 3 WLR 1091
User avatar
preacherman
 
Posts: 987
Joined: Wed Nov 07, 2012 3:09 pm

Re: terms

Postby atticus » Tue Sep 19, 2017 10:26 am

My, you are resourceful! The Hong Kong Land Law Blog! What an excellent find.

It reminds me of the time a client was insisting that he was right about a point of employment law and that I was wrong. He had an article from the web site of a law firm in Omaha, Nebraska to prove it.
User avatar
atticus
 
Posts: 19546
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: terms

Postby preacherman » Tue Sep 19, 2017 11:12 am

atticus wrote:My, you are resourceful! The Hong Kong Land Law Blog! What an excellent find.

It reminds me of the time a client was insisting that he was right about a point of employment law and that I was wrong. He had an article from the web site of a law firm in Omaha, Nebraska to prove it.

:lol:


the case is the uk court. That was just an place to take a quote from, but there are uk sites also.
User avatar
preacherman
 
Posts: 987
Joined: Wed Nov 07, 2012 3:09 pm

PreviousNext

Return to Landlord and Tenant Law

Who is online

Users browsing this forum: No registered users and 1 guest

cron