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Re: terms

Postby dls » Tue Sep 19, 2017 2:47 pm

This is not some old and technical rule of law. It was a central part of the determined, fundamental and intellectually superb reform of english land law which took place in 1925, and which underpins our present land law concepts. It was precisely the need to get rid of 'old technicalities' such as indeterminate leases (amongst may other things) which was the purpose of the huge reform.
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Re: terms

Postby preacherman » Tue Sep 19, 2017 3:48 pm

dls wrote:This is not some old and technical rule of law. It was a central part of the determined, fundamental and intellectually superb reform of english land law which took place in 1925, and which underpins our present land law concepts. It was precisely the need to get rid of 'old technicalities' such as indeterminate leases (amongst may other things) which was the purpose of the huge reform.



'The Supreme Court was highly critical of the certainty of term principle'

well tell the judge that not me! (Lord Hope I think).
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Re: terms

Postby preacherman » Wed Sep 20, 2017 5:30 am

question 1
could you please help me understand what it means when it says determinable.
'Clause 5 of the agreement provided that it was determinable by Ms Berrisford giving Mexfield one month's notice in writing ('Berrisford v Mexfield Housing Co-Operative Ltd).

mine says 'the landlord may bring a court action even if any previous right has been waived, if and when during the term:

rent is outstanding, breach of tenant obligation etc'

is that different to being determinable?

mine also says, 'the end of the term and the removal of the tenants belongings;
to give the landlord reasonable prior notice if the tenant intends to leave at the end of the term of the fixed term agreement.'

also, 'at the expiration or sooner determination of the term to deliver up to the landlord the property'
the term being: until further notice by mutual agreement.
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Re: terms

Postby atticus » Wed Sep 20, 2017 6:03 am

Determinable = capable of being brought to an end.
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Re: terms

Postby preacherman » Wed Sep 20, 2017 6:39 am

thanks atticus. I presume in context that means other than a breach giving rise to invoke court proceedings, such as not paying rent. 'even if any right is waived L may bring court action , if and when during the term, rent is outstanding etc'.

But there is no term as such that can bring it to an end if the term is 'until further notice my mutual agreement'

if that meant I agreed to wait until I was told to leave, it meant I couldn't determine it?
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Re: terms

Postby atticus » Wed Sep 20, 2017 6:49 am

Mutual implies a two way thing.
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Re: terms

Postby atticus » Wed Sep 20, 2017 8:52 am

I am sure that there is some ongoing situation behind all this. If so, I suggest that the OP book an appointment with a housing adviser at his CAB to get someone to look at his document and advise on whatever situation he is in. I suspect that otherwise the OP will sooner or later be adding to his list of heroic courtroom disasters.
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Re: terms

Postby preacherman » Wed Sep 20, 2017 9:16 am

atticus wrote:Mutual implies a two way thing.


well I know that -it could be implied we both mutually agreed I would leave at his given notice, or I would leave when we both agree I will leave.

I would just appreciate an answer in respect to my question regarding 'term'.

I would say I know more than some guy in a CAB office who did a six month course, because I kick around with you lot! and have had some court room failures, that will eventually lead to some crime court victory's, so back to the question..

aside from a tenancy/lease being determined (brought to an end) by the tenant not paying rent clauses invoking a right to bring court proceedings, am i right in thinking the way in which a lease is determined is based around the 'term' like this:

(1) Could the document take effect as a tenancy in accordance with its terms?

One of the members of the Supreme Court noted in the case that periodic tenancies (e.g. a lease from month to month, or from year to year) pose "something of a puzzle" when considered against the rule that the term of a lease must be certain. In one sense the term is certain, as it comes to an end when the week, the month, or the year for which it has been granted comes to an end. But in practice, the law assumes a re-letting at the end of each period, unless one or other of the parties gives a notice to quit. So the actual maximum term is uncertain. However, the theory is that, as long as each party is free to give notice whenever they want, the legal maximum remains certain.

Uncertainty can arise where there is a fetter on the right of either or both parties to serve a notice to quit. The problem in this case was that the restriction on the ability of the housing association to serve a notice to quit was of potentially unlimited duration.

On that basis, the agreement could not take effect as a tenancy according to its terms, i.e. as a periodic tenancy with a fetter on the housing association's ability to serve notice to quit which could last for an uncertain period.
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Re: terms

Postby theycantdothat » Wed Sep 20, 2017 10:43 am

preacherman wrote:[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


We need to distinguish between:

(a) a document purporting to grant a tenancy but which fails to do so

and

(b) a document declared void for uncertainty.

An example of (a) would be the grant of a tenancy of "such area of land on Sunnyside Farm Dibblington measuring 20 yards by 10 yards as the landlord from time to time designates". Such an agreement (assuming the court finds it is a true reflection of what the parties intended) would fail to give rise to a tenancy, but would create a licence. An example of (b) would be an agreement where the court is unable to make out what the parties intended. In such a case the document has to be void for any purpose.

But you are not going to be able to reach a definite conclusion by trawling all cases which appear to be relevant, many of which, whilst apearing to contradict general principles, in fact make distinctions based on the (possibly unusual) facts of the case. What you cannot get away from is that a periodic tenancy which cannot be ended by both parties is a contradiction in terms because if a tenancy can go on for ever it is equivalent to a freehold.

In any event, your problem is not going to be resolved by reference to landlord and tenant law as such, because what you have is a problem of interpretation. You are the victim of bad drafting. The first question to be answered is: What is the effect of the document? I have set out above various possibilities. I do not think we can go beyond that without the input of someone on the level of specialist counsel.

My guess is that any court, whatever route they take to reach a decision, would conclude that it is unreasonable to find there is no tenancy because someone who did not know what he was doing messed the drafting up.
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Re: terms

Postby preacherman » Wed Sep 20, 2017 1:01 pm

thanks theycantdothat. Its not the only thing he messed up.

assuming the court would accept evidence. i.e. a letter '[i]welcome to your permanent residence with immediate effect. this occupation is valid until further notice under,and subject to, the terms and conditions set out in the tenancy agreement'. and the fact I have been here 6 years, paid rent etc, I cant see how they could not find I have a tenancy, but like you say maybe I need to seek good counsel.

if it was found to be a tenancy, I am wondering if I might make the level of tenancy for life, as one or other seems restricted in ending the term.

do I need to go through a solicitor to get a barrister.
Last edited by preacherman on Wed Sep 20, 2017 1:14 pm, edited 1 time in total.
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