34277 W - I got a 52 so read at your own risk PDF

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I got a 52 so read at your own risk...

Description

Module title and code

Public Law 1 LW588

Seminar leader’s name (if you are not sure about this please look at your timetable on SDS for your seminar leaders name)

Wi dessK

Student’s first name

Wing Sum (Pernela)

Student’s family name

Chea

Student’s log-in

wsc22

Do you have an ILP

No

Word count

1858

https://moodle.kent.ac.uk/moodle

a) What was at risk for the parties and for others not directly involved in the litigation? (250 words) There are two main parties in this case: the claimant Mexfield Housing Co-operative Ltd and the defendant Ruza Berrisford. Mexfield Housing Co-operative Ltd is a fully mutual housing association founded by a bank as part of a mortgage rescuing scheme, enabling Mexfield to buy properties from the mortgagors who were unable to make the payment with an immediate letting back to the mortgagor. Berrisford is a tenant and a member of Mexfield. Berrisford wants to maintain a (life) interest and entitlement to retain possession of the property. Due to uncertainty of her terms, Beresford risks the validity of her tenancy under the point of law. The notice could only be made under specific circumstances such as rent not being paid or discontinuing as a member1, risking Mexfield’s power to terminate. Mexfield has an interest in being entitled to a proper construction of an agreement. This case could potentially create extensive changes in what constitutes a valid tenancy in law. It challenges whether a possession claim by the landlord can proceed by way of forfeiture and if it relates to the length of the lease 2. It also applies to all members of Maxfield and has extensive ramifications for similar housing co-operatives. b) What were the legal issues in the case? (250 words) Lord Neuberger has addressed five issues which were loosely supported by the other esteemed judges. 1. Under a 'pure point of law'3, whether a landlord could determine the agreement by giving one month's notice. It relies on the interpretation of the expression "from month to month" in clause 14. 2. Whether it is possible for an arrangement with an uncertain term is capable of becoming a tenancy in the context of "a term of years"5. 3. Prior to the 1925 act, would a tendency with uncertain terms be treated as the tenancy for life?6 4. Subjected to clause 5 and 6, could the agreement convert into a 90-year term by section 149(6)? 1 Piers Harrison and Christopher Bernard, 'Implications Of The Mexfield Ruling For Housing Co-Operatives' [2015] Landlord & Tenant Review 2 Piers Harrison and Christopher Bernard, 'Implications Of The Mexfield Ruling For Housing Co-Operatives' [2015] Landlord & Tenant Review accessed 31 March 2018. 3Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, p6 4 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, p6 5 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, p8 6 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, p10

5. Is Beresford is entitled to retain possession of the property? – Baroness Hale of Richmond JSC has also solidified the ability of contractual law in determining rights the role in enforcing contractual license.

C) How were the legal issues resolved by the judges? (1000 words) I will address these issues in accordance with the order and correspondence to the number I have mentioned above for easier reading. 1. On the supposition that mortgage rescue systems are intended to aid the renter's right of occupation, Lord Neuberger construed that Mexfield’s argument that the agreement impliedly provided for determination by Mexfield on one month due to the fact of tenancy being from "month to month"7 is ‘ingenious’8. To ensure the true construction of the contract ‘Precise rights and obligations of the parties under it must depend on the terms which the parties have agreed and the circumstances in which they were agreed’ 9 under Street v Mountford [1985]10. It is clear from the language of the agreement that it should only be determinable under clause 5 or clause 6. Because there is no evidence to prove the contrary, it is "perfectly possible to avoid such a conclusion" that the agreement did not create a monthly tenancy, regardless of the expression “from month to month”. Therefore, as "a matter of contractual interpretation"(also supported by Lord Hope of Craighead 11) it should only be determinable by clause 5 and 6. 2. Lord Neuberger has applied Prudential Assurance Co Ltd v London Residuary Body [1992]12 on the grounds of certainty, albeit with reluctance 13. Under the Prudential, if the 'maximum duration' of terms are 'uncertain under inspection', the agreement 'could not give rise as a matter of law'14, therefore Beresford’s agreement could not give rise to tenancy. Lord Neuberger has stipulated that 7 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para

20 8 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford , para 19 9 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford, para 17 and 62 10 Street v Mountford [1985] AC 809 11 Lord Hope of Craighead Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para 79 12 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 13 Undergraduate Blog, 'The Significance Of Mexfield Housing Co-Operative Ltd V Berrisford [2011] 3 WLR 1091' (Undergraduate Laws Blog, 2018) accessed 6 April 2018. 14 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386

although the Prudential case15 was ‘intellectually coherent in its analysis’, it was also ‘unsatisfactory in its practical consequences’ 16, and further questioned the validity and practical justification of the principle of uncertainty of terms being unable to take effect as a tenancy17 . Lord Neuberger is interested in using the Law of Property 1925 Act18 to convert Beresford’s life interest to a defined term of 90 years under certainty requirement “supported by the terms of section 149(6)”. However, as a matter of law is it impossible for an arrangement with an uncertain term is capable of becoming a tenancy in the context of "a term of years"19. 3. Lord Neuberger stipulates that if the agreement was made before the enactment of 1925 Act20, Berrisford would have been granted a life tenancy as that terms of uncertainty would have been automatically converted to a determinable term of years21. Mexfield’s reliance of recent authorities has been dismissed from lacking relevance, as Mexfield contends that an uncertain term can only create a tenancy for life if both parties had agreed to it22. On review on the true construction of the agreement, was to ensure that Berrisford has a place to live for so long as she is alive, save for the determination of clause 5 and 6 23. 4. As mentioned above, Lord Neuberger dissents that under section 149(6) of 1925 Act that except for rights determination under clauses 5 and 6, the Occupancy Agreement24 can be treated as 90-year term determinable on Beresford’s death.25 Lord Neuberger rejected Mexfield’s argument that 149(6) only concerned tenancies that automatically ended on the tenant’s death as opposed to tenancies that can become determined on a tenant’s death 26. Lord Neuberger 15 Prudential Assurance Co Ltd v London Residuary Body [1992] 16 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52,

para 33 17 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC, para 33 18 Law of Property 1925 Act 19 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC, p8 20 Law of Property 1925 Act 21 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para 33 22 Stephanie Smith, 'Case Comment: Berrisford V Mexfield Housing Co-Operative Ltd [2011] UKSC 52' (UKSCBlog, 2018) accessed 1 April 2018 23 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para 44 24 'Berrisford (FC) (Appellant) V Mexfield Housing Co-Operative Limited (Respondent)' (2011). 25 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para 45 26 Stephanie Smith, 'Case Comment: Berrisford V Mexfield Housing Co-Operative Ltd [2011] UKSC 52' (UKSCBlog, 2018) accessed 1 April 2018.

stated that based on a matter of common law. 5. The Lordships unanimously agree that Berrisford is entitled to retain possession for the reasons mentioned above. The arrangement in the agreement could only be determined in clauses 5 and 6.27 Although the arrangement cannot become a tenancy with it’s terms, under section 149(6) of the Property Law 1925 act28 and common law rules the arrangement is a tenancy under the terms of 90 years.29 Even though the tenancy was a monthly tenancy with ‘an objectionable fetter’ 30, it would have been treated as life interest pre-1926, therefore a tenancy for 90 years. Since Berrisford has not died yet, Mexfield has not right to retain the property. Lord Hope 31, Baroness Hale (under contractual license rather than contractual tenancy)32 supports Lord Nueberger that contact law is sufficient on it’s own to show that Berrisford is entitled to retain possession of her property. (a) Giving reasons, explain whether you agree with Lord Neuberger's view that '[there] is no apparent practical justification for holding that an agreement for a term of uncertain duration cannot give rise to a tenancy' (para 34). (500 words) I can agree with Lord Neuberger that there is no apparent practical justification for holding that an agreement for a term of uncertain duration cannot give rise to a tenancy. As we have seen in this case, immense injustice can arise out of strict adherence to this rule, as the Court of Appeal had done. There would be profound injustice and unfairness when clear intention of the parties was made and then their contract had been void. The faith of law should be used to honour promises and enforce responsibilities of all parties involved. Unlike the principle of uncertain terms, the principle that "precise rights and obligations of the parties under it must depend on the terms which the parties have agreed and the circumstances in which they were agreed"33 is so fundamental that the supreme court should be bound to uphold it. The law should respect the freewill to enter into any agreement relating to tenancy. However, there are reasons to keep the law in which agreement of terms with uncertain duration should not guarantee a tenancy for purposes that are not apparent. The complete dismissal of uncertain terms could very well turn against the interests of people in which the law needs to protect. An example a similar situation to the Beresford34 case arises, but with from different circumstances where the landlord renting out a property to a tenant, on the agreement that does not provide the terms of years because the landlord forgotten to write it down or the cat had ran over the keyboard, 27 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52,

para 54 28 Law of Property 1925 Act 29 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para 54 30 Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011], para 56 31Lord Hope, Mexfield Housing Co-operative Ltd v Berrisford [2011] Para 79 32 Baroness Hale Mexfield Housing Co-operative Ltd v Berrisford [2011], Para 95 33Lord Neuberger, Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52, para 17 34 Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52

making the duration of terms indecipherable. Without the uncertain terms principle, the landlord is unable to void the contract and must rent the property to the tenant for life interest of 90 years. There might also be areas of frustration or modification of the parties interest under the principle of law, contended under Street v Mountford [1985]35. If the uncertain term principle is ruled out entirely, it would be difficult for housing cooperative bring possession proceedings when it has no reversionary interest36. Instead of voiding the principle of uncertain terms entirely, the supreme court should create narrow guidelines on how this principle can be used.

Bibliography Cases Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52 Street v Mountford [1985]AC 809 Journals Harrison PC Bernard, 'Implications Of The Mexfield Ruling For Housing Co-Operatives' [2015] Landlord & Tenant Review accessed 31 March 2018 Press Release 'Berrisford (FC) (Appellant) V Mexfield Housing Co-Operative Limited (Respondent)' (2011). Website 35 Street v Mountford [1985]AC 809 36 Piers Harrison and Christopher Bernard, 'Implications Of The Mexfield Ruling For

Housing Co-Operatives' [2015] Landlord & Tenant Review accessed 31 March 2018.

Blog U, 'The Significance Of Mexfield Housing Co-Operative Ltd V Berrisford [2011] 3 WLR 1091' (Undergraduate Laws Blog, 2018) accessed 6 April 2018 Smith S, 'Case Comment: Berrisford V Mexfield Housing Co-Operative Ltd [2011] UKSC 52' (UKSCBlog, 2018) accessed 1 April 2018...