Content area
Full Text
Articles
*. Lecturer, Faculty of Laws, UCL. My thanks to the participants in the Faculty Research Seminar for their comments, Rob Chambers, and the anonymous reviewers for comments on an earlier draft. The usual disclaimer applies.
I.
Introduction
The requirement that a valid term of years estate has a term which is certain from the outset is well established. So are the criticisms of the rule.1In the recent Supreme Court case of Mexfield Housing Co-Operative Ltd. v Berrisford, the rule was strongly criticised.2The Justices cited Lord Browne-Wilkinson in Prudential Assurance Co. Ltd. v London Residuary Body, where the rule was described as "bizarre" and merely an "ancient and technical rule of law"3- a complaint exacerbated by Lord Neuberger's observation that the rule has "no apparent practical justification".4The application of the rule can easily be avoided by granting a lease for a certain term with an additional uncertain determining condition,5and seems to be particularly problematic in relation to periodic tenancies, where there is clearly no maximum duration for a tenant's occupation of the premises.6Typically, the cases in which the certainty of term rule arises are ones in which the parties have deliberately tried to enter into unusual arrangements,7or situations of poor conveyancing where the problem could easily have been avoided.8This article will show that the rule does have a plausible doctrinal underpinning, addressing issues which continue to be relevant, although they were more prominent earlier in the history of the common law. It also highlights practical difficulties from allowing the grant of uncertain terms - difficulties which hitherto have been overlooked.
Underlying the criticism of the certainty of term rule is the tension in the law of leases between the foundation of leases in contractual arrangements and their existence as property rights. From the perspective of contract, the certainty of term rule conflicts with the parties' contractual freedom, arbitrarily preventing people from entering into arrangements which they consider beneficial. This article seeks to place the certainty of term rule into a proprietary context. As Low notes, "It would be fanciful to suggest that a purely contractual lease of uncertain duration is illegal or otherwise contrary to public...