Not thinking things through – miscellany

Assorted bits on the theme of acting hastily and not thinking things through…

Exhibit 1. The Housing and Planning Bill. This evening, it completed third reading in the House of Lords and heads back to the Commons. While there will no doubt be some ping pong on various Lords amendments, one significant amend was a Govt amend and passed the Lords, so is staying.

In place of the original proposal for compulsory fixed term secure tenancies of 2-5 years, the Govt reacted to a prospect defeat by promising an amendment to fixed terms of ‘up to’ 10 years. The amendments here provide for fixed term secure tenancies of ‘between two and 10 years’, with a further exception if there is a child under 9 in the household at the start of the tenancy, in which case the tenancy is for a fixed term until the child turns 19. So, fixed possible terms of 10 years to almost 19 years. And of course there will be statutory guidance on appropriate terms.

But fixed terms of over 7 years come with certain issues.

One is that section 11 Landlord and Tenant Act 1985 on implied repair obligations does not apply for tenancies of longer than 7 years term. The Govt appears to have acknowledged this, because there are amends to s.13 L&T Act 1985 so that it applies for ‘Introductory Tenancies’ as per Part 5 Chapter 1 Housing Act 1996, which, by other parts of the H&P Bill will apparently be the name for all new fixed term tenancies at least so long as the council has elected to have introductory tenancies. Quite what the position on section 11 is if the fixed term secure tenancy is not an ‘introductory tenancy’ is, to put it mildly, unclear (now see update below).

Another is that tenancies of over 7 years term are required to be registered on the title at the Land Registry. There is an exception for ‘a relevant social housing tenancy’ under s.27 Land Registration Act 2002 (as amended), but only a ‘flexible tenancy’ is defined as a relevant social housing tenancy (for our purposes here). The H&P Bill amends that section to replace the definition of flexible tenancy with the H&P Bill amended definition, but that is for flexible tenancies created before the H&P Act will come into force. I can’t see any amend that would insert new fixed term secure tenancies in as a ‘relevant social tenancy’ for the purposes of Land Registration Act 2002.

Now I could be wrong. I hope so. I have been swapping between the most recent version of the H&P Bill (pre third reading), and the third reading amendments, and then cross referring to L&TA 1985 and Land Registration Act 2002, as well as Housing Act 1985 as amended, and this was just this evening. But it does rather look like, as it now stands,  section 11 Landlord & Tenant Act won’t apply to a swathe of ‘new’ fixed term secure tenancies, and also that all such tenancies over 7 years will have to be registered. Neither are good outcomes and I can’t believe they are intended. Corrections (to me, or to the Bill) welcome.

(update 28 April – as has been pointed out in the comments, the Localism Act amend to section 13 LTA 1985 would seem to cover secure tenancies of over 7 years for section 11 applicability. Quite why the further amend in the H&P Bill to cover ‘introductory tenancies’ was required is another question. It appears that Introductory Tenancies of longer than 7 years are to be a possibility, which is quite something. The registration point remains unclear. The joys of last minute amendments to complicated law!)

Exhibit 2. In literally evicting tenant in the middle of court proceedings news, a Scots landlord was found guilty of illegal eviction. The landlord had arranged for the property to be boarded up and the locks changed while the tenant was out. The landlord knew that the tenant would be out because she (and indeed the landlord) were attending court for a hearing of her disrepair case against the landlord.

Unsurprisingly, this course of action did not go well. The tenant got a locksmith and the police to get re-entry and the landlord faced prosecution. Getting off with a £540 fine might be considered to be remarkably fortunate.

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All, secure-tenancy, Unlawful eviction and harassment.

31 Comments

  1. Localism Act 2011
    166Repairing obligations in leases of seven years or more
    In section 13 of the Landlord and Tenant Act 1985 (leases to which the provisions about repairing obligations in section 11 of that Act apply) after subsection (1) insert—
    “(1A) Section 11 also applies to a lease of a dwelling-house in England granted on or after the day on which section 166 of the Localism Act 2011 came into force which is—
    (a) a secure tenancy for a fixed term of seven years or more granted by a person within section 80(1) of
    the Housing Act 1985 (secure tenancies: the landlord condition), or
    (b) an assured tenancy for a fixed term of seven years or more that—
    (i)is not a shared ownership lease, and
    (ii)is granted by a private registered provider of social housing.
    (1B) In subsection (1A)—
    “assured tenancy” has the same meaning as in Part 1 of the Housing Act 1988;
    “secure tenancy” has the meaning given by section 79 of the Housing Act 1985; and
    “shared ownership lease” means a lease—
    (a) granted on payment of a premium calculated by reference to a percentage of the value of
    the dwelling-house or of the cost of providing it, or
    (b) under which the lessee (or the lessee’s personal representatives) will or may be entitled to
    a sum calculated by reference, directly or indirectly, to the value of the dwelling-house.”

    • Thanks Niki. That should deal with the s.11 obligation. Though not clear why the further amend to deal with ‘introductory’ tenancies. Are we seriously looking at 10 year introductory tenancies? It seems so.

      Registration remains opaque.

  2. At commencement the 10 year term the tenancy will be an introductory tenancy. When the 12 months goes successfully it will then become a secure tenancy. In that period s13(1A) will not apply in the absence of an amendment to the law.

    If there is an implied term during a secure tenancy, when it ceases to be a secure tenancy (eg tenant ceases to occupy as main or only home), do the terms of the tenancy change to remove the implied covenant?

    I can’t find an answer to the LRA point

    Niki

    • Hmm. That raises another issue with the wording of s.137A HA 1985, as per Localism Act. As at (1) “Where this section applies, a tenancy of a dwelling-house in England that ceases to be an introductory tenancy and becomes a secure tenancy in accordance with this Chapter becomes a flexible tenancy for a term certain.” But the introductory term is part of the overall term of at least 2 years – (2)(b). Clear tension between these being sequential tenancies – 12 months Intro, followed by flexible (secure) – or being one tenancy the terms of which change at 12 months. The amend to LTA 1985 s.13(1A) would only be necessary for the latter.

      On the implied terms, I think the answer is yes. If it ceases to be secure, becomes contractual tenancy of 10 year term, with no s.13 exclusion. The tenancy agreement may of course contain express obligations.

      Thanks on the LRA, I still can’t either.

  3. I recall a previous post that said that in some cases introductory tenancies would convert to ‘ordinary’ secure tenancies following a suspended possession order or other legal action (forgive me for not finding the reference now). Is that another hole to be plugged ?

  4. Pingback: Untitled Document

  5. “Another is that tenancies of over 7 years term are required to be registered on the title at the Land Registry. There is an exception for ‘a relevant social housing tenancy’ under s.27 Land Registration Act 2002 (as amended), but only a ‘flexible tenancy’ is defined as a relevant social housing tenancy (for our purposes here).”

    A secure tenancy under the 1985 Act is an estate in land, and a secure tenacy of this nature is treated as having a term of 90 years under LPA 1925: Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52. Since a secure tenancy is not a ‘relevant social housing tenancy’ under LRA s.27, it appears there is requirement for registration, with responsibility of registration falling on the estate owner (transferee or grantee) i.e. the social housing tenant.

    • No, a secure tenancy is periodic. It is not for a fixed term of over 7 years, let alone 90. A flexible tenancy is a secure tenancy for a fixed term of years, but less than 7.

  6. being a bit pedantic but that is not true. A secure tenancy exists whenever the premises are let as a separate dwelling and the landlord and tenant conditions are satisfied unless they fall within the exceptions eg sched 1 long tenancies [ie over 21 years subject to a few excs]

    a flexible tenancy is a secure tenancy longer than 2 years where the LL served a notice before grant saying it would be [there are a few other circumstances]

    a secure whether a non flexible secure tenancy or a flexible secure tenancy can be fixed term of any length under 21 years

    and can ? even be longer than 21 years if

    A tenancy granted so as to become terminable by notice after a death is not a long tenancy for the purposes of this Part, unless—
    .(a) it is granted by a housing association which at the time of the grant is [F2a private registered provider of social housing or] [F3a registered social landlord],
    (b) it is granted at a premium calculated by reference to a percentage of the value of the dwelling-house or of the cost of providing it, and
    .(c) at the time it is granted it complies with the requirements of the regulations then in force under section 140(4)(b) of the Housing Act 1980 [F4or paragraph 4(2)(b) of schedule 4A to the Leasehold Reform Act 1967] (conditions for exclusion of shared ownership leases from Part I of the Leasehold Reform Act 1967) or, in the case of a tenancy granted before any such regulations were brought into force, with the first such regulations to be in force.

  7. A secure tenancy is indeed a periodic tenancy. – of a sort.

    However it is also a tenancy in which there is a fetter on the right of the landlord to serve a notice to quit. As Lady Hale explained in Mexfield at [87]: “Uncertainty is introduced if either party is forbidden to give that notice except in circumstances which may never arise.”

    As also explained in Mexfield, a lease to an individual for an uncertain term was treated at common law as a lease for life, provided that the necessary formalities were complied with.

    As further explained in Mexifield, a periodic tenancy with such a fetter on either of the parties, and which would be treated at common law as a lease for life, takes effect as a lease for 90 years pursuant to section 149(6) of the Law of Property Act 1925.

    It would therfore appear to follow from the ratio in Mexfield that a secure tenancy takes effect as a lease for 90 years and not as a simple periodic tenancy.

    • A secure tenancy is either periodic by statute s.82(1)(a), or for a fixed term which then becomes periodic by statute at expiry of fixed term – s.86 HA 1985.

      There is no uncertainty of term, it is provided for by statute.

      This is not a common law tenancy of uncertain term, rectified by LPA s.149(6).

  8. Yes, a secure tenancy under s.82(1)(a) is periodic. However it cannot be brought to an end by the landlord except as provided in that section.

    According to UKSC in Mexfield, there is uncertainty of term since there is a fetter on the landlord’s right to bring the tenancy to an end. I don’t see anything in Mexfield which suggests that this principle is not applicable where the fettered periodic tenancy is provided for by statute.

    What authority is there to support your proposition that there is no uncertainty of term if the fettered periodic tenancy is a secure tenancy? (Even the wording of s.82(3) indicates that a periodic tenancy under s.82(1)(a) is not a tenancy for a term certain).

    LPA s.149(6) is not restricted to common law tenancies. The ratio in Mexfield is that there is uncertainty of term where there is a fettered periodic tenancy; common law treats a tenancy where there is uncertainty of term as a tenancy for life, and LPA s.149(6) then converts that to term of 90 years.

    Furthermmore, a secure tenancy is an estate in land: Birmingham City Council v Walker [2007] UKHL 22, Lord Hoffman at [5], giving the unanimous decision. LPA s.1(1) provides that “The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute.”

    Lord Hoffman’s explaination of the nature of the secure tenancy lends further support for the principle in Mexfield to be applicable.

    In your view, does the 1985 Act create an additional category of estate in land? If so, what is the rationale for interpreting the 1985 Act in this way?

    To me, it seems entirely consistent to conclude that secure tenancy which is a fettered periodic tenancy is an estate in land, since, as explaind in Mexfield, it takes effect as a term of years absolute (90). That doesn’t mean it is not a (fettered) periodic tenancy, as it plainly is. It means it falls to be treated as a tenancy for a term of years absolute and as an estate in land.

    • Dan, it is periodic term certain or fixed term certain by statute. Thus by law. There is no question of vagueness of contactual terms. There is no difficulty of interpretation. It is statute. There is no uncertainty of term, so no LPA s.149(6) application.

      Please get your head round how statute works…

    • This has nothing to do with vagueness or difficulties of interpretation.

      No, a periodic statutory tenancy is not a ‘periodic term certain’. This is very clearly explained by Lady Hale:

      87. Periodic tenancies obviously pose something of a puzzle if the law insists that the maximum term of any leasehold estate be certain. The rule was invented long before periodic tenancies were invented and it has always been a problem how the rule is to apply to them. In one sense the term is certain, as it comes to an end when the week, the month, the quarter or the year for which it has been granted comes to an end. But that is not the practical reality, as the law assumes a re-letting (or the extension of the term) at the end of each period, unless one or other of the parties gives notice to quit. So the actual maximum term is completely uncertain. But the theory is that, as long as each party is free to give that notice whenever they want, the legal maximum remains certain. Uncertainty is introduced if either party is forbidden to give that notice except in circumstances which may never arise. Then no-one knows how long the term may last and indeed it may last for ever.

      88. These rules have an Alice in Wonderland quality which makes it unsurprising that distinguished judges have sometimes had difficulty with them.

    • Dan, first, Lady Hale says exactly that – a periodic tenancy is for a term certain.
      Second, secure tenancies are defined as such by statute. Whatever the practical realities, a secure tenancy is for term certain, by statute.

    • Until the passing of the 1980 Act, tenants of local authorities and similar public sector landlords had no security of tenure. They were excluded from protection under the Rent Act 1977: see sections 14-16. Part I of the 1980 Act conferred two benefits upon public sector tenants. Chapter I gave them the right to buy the freehold (if it was a house) or a long lease (if it was a flat) of their dwelling at a discounted price to be left outstanding on mortgage. Chapter II introduced the concept of a secure tenancy for public sector tenants.

      Under section 32 of the 1980 Act, and now section 82 of the 1985 Act, the contractual tenancy was preserved, by a scheme which “added statutory incidents to that tenancy which overrode some of the contractual terms. Those overriding provisions include the provisions which prevent it being terminated except by an order of the court on the statutory grounds”.

      (Lord Hoffman in Birmingham City Council v Walker [2007] UKHL 22, [2007] 2 AC 262, in an opinion concurred in by all members of the House; Lord Mance citing Lord Hoffman in Solihull v Hickin [2012] UKSC 39 at [38].)

      There is contractual periodic tenancy for term certain, which is given overlay of statutory restrictions which fetter landlord’s right to determine. This introduces uncertainty: it is then no longer a periodic tenancy for term certain. What matters is that the landlord’s right is fettered – it is irrelevant that this fetter is statutory rather than contractual.

      “the rules of the common law apply except to the extent that they are abrogated or modified by the words of the statute.” (Lord Hope at [18]).

      Consequently the original periodic tenancy is converted by statute by the overlay of restrictions, and this in turn is converted by common law, and then LPA.

    • “the tenancy would be an unfettered periodic with an overlay of statutory restrictions, but I don’t think it is”.

      That is exactly what it is.

      Lord Hoffman in Birmingham v Walker [2007] UKHL 22:

      2. Until the passing of the 1980 Act, tenants of local authorities and similar public sector landlords had no security of tenure. They were excluded from protection under the Rent Act 1977: see sections 14-16. Part I of the 1980 Act conferred two benefits upon public sector tenants. Chapter I gave them the right to buy the freehold (if it was a house) or a long lease (if it was a flat) of their dwelling at a discounted price to be left outstanding on mortgage. Chapter II introduced the concept of a secure tenancy for public sector tenants.

      Lord Mance in Solihull v Hickin [2012] UKSC 39 at [38] citing Lord Hoffman:

      Under section 32 of the 1980 Act, and now section 82 of the 1985 Act, the contractual tenancy was preserved, by a scheme which “added statutory incidents to that tenancy which overrode some of the contractual terms. Those overriding provisions include the provisions which prevent it being terminated except by an order of the court on the statutory grounds”.

      The original (unfettered) contractual periodic tenancy for term certain is given overlay of statutory restrictions which fetter landlord’s right. The fetter introduces uncertainty. It is irrelevant that the fetter is statutory rather than contractual.

      “the rules of the common law apply except to the extent that they are abrogated or modified by the words of the statute.” Lord Hope in Hickin at [18].

      So the original periodic tenancy for term certain is given statutory restrictions which makes it a tenancy for term uncertain, which is then tenancy for life under common law rules…

      Since a secure tenancy is an estate in land, it must be for term of years. The original bare contractual periodic tenancy is not the secure tenancy. The overlay of restrictions makes this for term uncertain, so it must therefore be converted to term of years – through the rules of common law and LPA as in Mexfield.

  9. If you read to the end of [87], you will see that Lady Hale distinguishes between two types of periodic tenancy. One is where both parties are free to give notice: this type of periodic tenancy is for a term certain. The other type is where either party is forbidden to give that notice except in circumstances which may never arise. That is then a tenancy for a term uncertain.

    A secure tenancy is one where the landlord cannot serve notice whenever they like. Hence a tenancy within s.82(1)(a) is a tenancy for a term uncertain.

    The statute does not ‘create’ secure tenancies out of thin air. Where a landlord and tenant enter into a tenancy agreement which is periodic tenancy with a fetter, and thus create a tenancy for a term uncertain, and landlord and tenant conditions are met, then that tenancy is termed a secure tenancy. The statute then applies a statutory code to these tenancies. That statutory code applicable to this type of tenancy for a term uncertain coexists with other rules of law, including those whereby this type of tenancy takes effect as lease for 90 years.

    s.82(3) provides “Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture….”

    If all secure tenancies were for a term certain, why have this limitation of the subsection to secure tenancies ‘for a term certain’? This wording clearly implies there are secure tenancies for term certain and secure tenancies for term uncertain i.e. fixed term periodic tenancies as per s.82(1)(b) and periodic tenancies as per s.82(1)(a) respectively. The periodic tenancies of the kind in s.82(1)(a) are for term uncertain since these have fettter on landlord’s right to service notice to quit.

    Is the difficulty perhaps because a periodic tenancy with this fetter is not (in common law) a valid ‘periodic tenancy’ but is a tenancy for a term uncertain (in common law) ? Hence when you read ‘periodic tenancy’ in s.82(1), this MUST be for term certain, despite there being a fetter on landlord’s right to give notice?

    • The statute does create secure tenancies out of the air (or rather, Parliamentary vote). There is no such thing as a secure tenancy other than by the operation of the statute.

      Yes the statute creates fetters on the right to serve notice to quit. In fact the statute makes it impossible for the landlord to serve notice to quit as an NTQ is wholly invalid against a secure tenancy. Instead a notice seeking possession must be served. The whole scheme is pretty much entirely outside the common law rules. That is indeed the point of s.82(3) – a fixed term secure tenancy which contains a forfeiture/entry clause, forfeiture does not end the tenancy (as it would for any usual or common law lease), but instead the tenancy becomes a periodic secure tenancy.

      Lady Hale does not say there are ‘two kinds of periodic tenancy’, by the way. That is the whole point – a Mexfield agreement is a lease of 90 years, not a periodic tenancy that can’t be ended for 90 years.

      The upshot of a secure tenancy being a creature of statute? The LPA 1925 provisions do not apply because the statute says a periodic secure tenancy is a periodic tenancy, not a lease of 90 years. The LPA can override the private contractual terms of an agreement. It can’t override other statute.

    • I think it helps to remember that English housing law is layered — with the bedrock being the feudal land law, the common law, as subsequently reformed over the centuries by statute. The various statutorycontrols of housing accommodation whether controlled, regulated assured or secure tenancies overlay that common law bedrock.

      A secure tenancy is a common law tenancy (or license) at a time when the relevant conditions are fulfilled, and only when fulfilled, (unless an exclusion applies). While it is a secure tenancy there are certain consequences.

      Section 149(6), if applicable, is applied to the common law situation and it is only then that the secure tenancy issues are applied.

      A routine weekly tenancy without the contractual fetters so as to bring it within mexfield does not become a mexfield because of the effects of being a secure tenancy.

      Despite often being referred to as secure tenancy in the tenancy agreement, many secure tenancies do not begin as such commencing before occupation of the tenant and the tenant condition at grant not fulfilled.

      A weekly tenancy, without mexfield clauses, of a dwelling let as a separate dwelling occupied by a person as their only homein circumstances not falling within schedule 1 does not suddenly become a 90 year lease upon the reversion being conveyed to a qualifying landlord and the tenancy becoming for the time being a secure tenancy.

    • I don’t think that is right either. It is not a common law tenancy first, then overlayed with statute. It is true that when the conditions of a secure tenancy cease to be fulfilled (eg, only residence), it becomes a contractual, common law tenancy, but I don’t think that the common law tenancy precedes or underlies the statutory tenancy.

      I agree that if that were the case, then the tenancy would be an unfettered periodic with an overlay of statutory restrictions, but I don’t think it is.

  10. “the tenancy would be an unfettered periodic with an overlay of statutory restrictions, but I don’t think it is.”

    That is exactly what it is.

    Lord Hoffman in Birmingham v Walker [2007] UKHL 22:

    2. Until the passing of the 1980 Act, tenants of local authorities and similar public sector landlords had no security of tenure. They were excluded from protection under the Rent Act 1977: see sections 14-16. Part I of the 1980 Act conferred two benefits upon public sector tenants. Chapter I gave them the right to buy the freehold (if it was a house) or a long lease (if it was a flat) of their dwelling at a discounted price to be left outstanding on mortgage. Chapter II introduced the concept of a secure tenancy for public sector tenants.

    Lord Mance in Solihull v Hickin [2012] UKSC 39 at [38] citing Lord Hoffman:

    Under section 32 of the 1980 Act, and now section 82 of the 1985 Act, the contractual tenancy was preserved, by a scheme which “added statutory incidents to that tenancy which overrode some of the contractual terms. Those overriding provisions include the provisions which prevent it being terminated except by an order of the court on the statutory grounds”.

    The original (unfettered) contractual periodic tenancy for term certain is given overlay of statutory restrictions which fetter landlord’s right. The fetter introduces uncertainty. It is irrelevant that the fetter is statutory rather than contractual.

    “the rules of the common law apply except to the extent that they are abrogated or modified by the words of the statute.” Lord Hope in Hickin at [18].

    The original periodic tenancy for term certain is given statutory restrictions which makes it tenancy for term uncertain, which is then tenancy for life under common law rules…

    Since a secure tenancy is an estate in land, it must be for term of years. The original bare contractual periodic tenancy is not the secure tenancy. The overlay of restrictions makes this for term uncertain, so it must therefore be converted to term of years – through the rules of common law and LPA as in Mexfield.

    • Accepting the overlay point (my head was elsewhere), it is not irrelevant whether the fetter is statutory or contractual.

      Again, HA 1985 provides that a secure tenancy is periodic or for specified term. It doesn’t matter that there is also a statutory fetter. Statute can do this – “the rules of the common law apply except to the extent that they are abrogated or modified by the words of the statute”. If Parliament wishes to create a tenancy of term certain with fetters on termination, it can, of course, do so.

      Mexfield is concerned with the issue of contractual terms. The issue is whether, before LPA 1925, the tenancy would have been treated as a lease for life under common law. A secure tenancy could not have been treated as a lease for life at common law, because statute.

      Further, although unnecessarily, s.149(6) LPA only applies to a ‘life time’ tenancy that automatically determines on death (see 49 of Mexfield). A secure tenancy does not determine on death. s.86A-90 HA 1985. It may lose its status as a secure tenancy on vesting, but continues as a contractual tenancy, or it may be succeeded to.

    • Or, to put it another way, any tenancy of term uncertain that would amount to a ‘lease for life’ under the pre LPA 1925 common law rules, would not be capable of being a secure tenancy, as it is a condition that the tenancy is periodic or fixed term. Ergo you cannot have a ‘secure tenancy’ that would have been a common law ‘lease for life’.

    • If the landlord condition and tenant condition are satisfied that is sufficient. There is no additional requirement that the tenancy is also either periodic or fixed term.:-

      s.79(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.

      s.82(1) A secure tenancy which is either—
      (a) a weekly or other periodic tenancy, or
      (b) a tenancy for a term certain but subject to termination by the landlord,
      cannot be brought to an end by the landlord except as mentioned in subsection (1A)

      s.82 applies the statutory fetter to secure tenancies which meet the conditions in (a) or (b), but a tenancy may be a secure tenancy without meeting those conditions e.g. a tenancy that would have been a common law ‘lease for life’ or for a fixed term, but not subject to termination by the landlord. The statutory fetter of s.82(1) need not be applied since there is contractual fetter, but that lease satisfying both landlord and tenant conditions in s.80 and s.81 would still be a secure tenancy with right to buy etc.

      “If Parliament wishes to create a tenancy of term certain with fetters on termination, it can, of course, do so.”

      I don’t accept that. The construct of a fettered periodic tenancy for a term certain is conceptually incoherent. Parliament could stipulate that certain fettered tenancies are to be treated as being periodic for term certain, but it has not done so.

      (I do accept that a purported periodic tenancy which is fettered is not a periodic tenancy, but is a tenancy for a term uncertain – by contrast to a periodic tenancy without fetters, which is a valid periodic periodic tenancy for term certain).

      In terms of land registration (where this started), the relevant situation would be the conveyance of a secure tenancy (being an estate in land) where the tenancy commences as a secure tenancy. A paradigm example would be a secure tenant transfering to another property and a new tenancy agreement is entered into expressed to be a secure tenancy agreement under the 1985 Act (as happens).

      This is different from where that new tenancy agreement is simply expressed as a periodic tenancy (for term certain) which would then become subject to fetter pursuant to s.82 as the relevant conditions of s.80 and s.81 are met. That post facto statutory fetter does not mean the ‘original’ common law tenancy agreement was an agreement for a term uncertain, thus falling to be treated as a lease for life.

      By contrast, in the former case, expressed to be a secure tenanncy agreement, the statutory fetter is incorporated in terms. The original tenancy is for term uncertain, and thus creates a lease for life. LPA is then applicable. As the tenancy (thus resolved) takes effect in possession, the provisions of HA 1985 then become applicable to the tenancy as to succession, RTB etc.

      Suppose the statute instead made it an implied term of the tenancy agreement that the landlord is fettered in specified cases. This would have the effect of making a purported periodic tenacy a tenancy for a term uncertain. In that sense it is irrelevant whether the fetter in the original agreement is statutory or contractual. What is relevant is that there is a fetter in the agreement so that the agreement is for a term uncertain, and thus the agreement would fail but for the common law rule treating this as a lease for life.

      I agree with kjetiniki that a conveyance of the reversion to a qualifying landlord would not convert the periodic tenancy to a 90 year term. It would simply mean that the statutory fetter becomes applicable. The agreement itself would not have any uncertainty as there is no fetter in the agreement, consequently it would not be treated as a lease for life etc.

      However where the original tenancy agreement is expressed as conveying a secure tenancy, a Mexfield type lease may be created and land registration may then become applicable to this secure tenancy.

    • Of course parliament can provide for a term certain or periodic with fetters on possession. It has indeed done so. Conceptual coherence is not a requirement. As indeed, the common law requirement for term certain itself demonstrates.

      Your version would be considerably more incoherent – in terms of the statutory scheme. Eg – if s.82 didn’t apply (as neither periodic or granted for express fixed term), then neither would the notice requirements in s.83 HA 1985, via s.83(1A). With the result that no NSP could be served on breach, and thus no possession proceedings. Is that what parliament envisaged? This would have to apply to all periodic secure tenancies on your argument.

      Whether a tenancy agreement expressly incorporates the statutory fetters is a matter of happenstance. Most of the ones I’ve seen don’t. If your argument relies on contractual fetters, then it is not about secure tenancies per se.

      I also don’t think you can maintain a distinction between a ‘new’ tenancy being somehow contractual periodic before becoming secure, and a transfer – this is where the overlay argument is a red herring. There is no ‘scintilla of time’.

    • And there remains the problem for you that in order for Mexfield to apply, the tenancy would have to be one that would have been a tenancy for life under common law prior to LPA 1925. As the fetters are statutory, not contractual, that would not be the case. A statutory fetter is not contractual, it is imposed.

      Look at 33 and 34 in Mexfield – can the agreement can take effect according to its terms in common law? But for a statutory fetter the point is that a tenancy cannot take effect *other than* by those terms. A council periodic tenancy (providing the tenant and landlord condition are met) cannot be anything but a secure tenancy (leaving introductory tenancies out of this, but that is statute too). This is not a (common law) contract – not least because it can be varied by statute without any involvement with the parties to the contract (inserting new grounds for possession, for example).

      So, the common law does not bite, where statute has provided otherwise. And it most certainly has.

      And of course a secure tenancy does not determine automatically at death, so LPA 1925 s.149(6) does not bite in any event, so no 90 year term, and no registrable interest.

      PS. Note s.115(2) HA 1985…

      This has been interesting and you’ve had some good points. I’ve replied in haste and come to regret doing so. (A lot on my plate at the moment). But it doesn’t work in the end.

    • “”Whether a tenancy agreement expressly incorporates the statutory fetters is a matter of happenstance. … If your argument relies on contractual fetters, then it is not about secure tenancies per se.”

      Yes – that is essentially my argument, and yes, these are contractual fetters. By virtue of those contractual fetters, that is then a Mexfield type tenancy.

      Yes, this is a matter of happenstance (and this happens to be what I have seen). The type of tenancy agreement I have in mind states that it is a “Secure Tenancy Agreement (Housing Act 1985)”

      HA 1985 does not create a new species of contractual agreement; it provides statutory incidents to common law tenancies where the landlord and tenant condition are met. Objectively construed, a “secure tenancy agreement” incorporates in terms the statutory fetters as contractual terms into the tenancy agreement. As expressed in the instrument, the parties intend a tenancy agreement which contains a fetter on the landlord’s right.

      The purported conveyance of a secure tenancy in a ‘secure tenancy agreement’ thus introduces a contractual fetter which creates a Mexfield type tenancy (which also becomes a secure tenancy under HA 1985 when the conditions are met). That tenancy would thus be subject to land registration by virtue of the 90 year Mexfield lease interest conveyed in the agreement by operation of law.

      By contrast, if the tenancy agreement simply took the form of a periodic tenancy agreement (without expressing this to be a secure tenancy agreement), this would convey an interest without contractual fettering, so does not become a Mexfield lease and does not require registration. (This would of course still be a secure tenancy with statutory fetters once that tenancy takes effect in possession).

      Yes, this is not about secure tenancies per se. It is really to do with the Land Registration Act 2002 (the only practical consequence of this quirk as far as I am aware). This is essentially to do with the exception in s.27 where ‘relevant social housing tenancy’ is narrowly defined. Given the consequences of non-registration by the grantee, and given that Mexfield type tenancies might be created by a council’s “secure tenancy agreement” (without the tenant being aware of the Alice-in-wonderland consequences), a wider definition of ‘relevant social housing tenancy’ in LRA s.27 would be desirable.

      It has been interesting (although I have taken some wrong turns and also responded hastily at times). My understanding of secure tenancies etc. has developed and been enriched though this – thank you.

    • HA 1985 does not create a new species of contractual agreement; it provides statutory incidents to common law tenancies where the landlord and tenant condition are met. Objectively construed, a “secure tenancy agreement” incorporates in terms the statutory fetters as contractual terms into the tenancy agreement. As expressed in the instrument, the parties intend a tenancy agreement which contains a fetter on the landlord’s right.

      That is the error. The statutory provision doesn’t incorporate the restrictions/incidents as terms of the tenacy unless either the particular provision eg92(1) says so (altho this is questionable other than during the period it is a secure tenancy) or there is an actual express term.

      According to you there would be a contratual provision and accordingly this would apply even at a time when it had ceased to be a secure tenancy. If you were right ( and I haven’t thought it thro very carefully then all periodic seure tenancies would be caught and all tenacies would be for a tem certain see s82(3) and there would not be a periodic tenancy for s82(3) (other than licences).

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