Properties in pastel shades

Landlord and Tenant Law
April 18, 1997

The hostility displayed by Conservative peers as the Government's leasehold enfranchisement programme passed through the House of Lords was, it would seem, an expression of something more than the aggrieved self-interest of urban rentiers. According to its opponents the real mischief of the bill lay in a betrayal of the Conservative party's most cherished principle. The problem, however, was that peers disagreed as to its nature. Did the bill offend a Conservative preference for wealth, free markets and binding contracts, or did it betray Conservatism as the political voice of old property? Whatever the use of property and contract as political metaphors might tell us about the state of Conservatism, this tension rather nicely reflects an equivocation which has long plagued the leasehold form. Lawyers cannot decide whether, or to what extent, leases are creatures of property or contract. Given that leases, rather like the Conservative party itself, have come to adapt themselves to wealth rather than land, it may be that the model of contract will prove the more successful categorisation. The problem, however, is that tenancies are more or less what political or economic projects make of them. They are moulded to a number of specific and different relationships, each of which is intelligible not in terms of a dry legal logic but according to the peculiar expectations which each generates. In these circumstances the traditional legal categories raise more questions than answers.

Although the dust flap heralds "an innovative approach to the study of the law of tenancies," The Nature of Tenancies takes a conventional line on these problems. In common with many other contextual studies of law it uses "policy" and "social context" only to clothe the orthodox textbook categories in colours which soften their austerity. When it is applied to land law this cosmetic use of context imposes constraints. The discrepancy between textbook concepts and the functions they perform in reality is so great that, if the aim is to understand how the orthodox categories have come to be so distorted or vacuous, it is vital to begin not with law but with the specific demands that economic and political processes make of law. In this book the possibility of beginning with "context" has been barred by the decision to treat all leases as variants of a basic landlord and tenant relationship. It may be that this is a good way of presenting textbook orthodoxy to students. Indeed, given the range of commentaries and materials it summarises and the clarity with which difficult topics such as assignment and enfranchisement are set out, this text is more interesting and accessible than other such textbooks.

Nevertheless, given that context is invoked as the source of a richer understanding of "the role that letting property plays within our society," this reliance upon legal categories is problematic. In rent control, to take the obvious example, legal categories are almost entirely reactive to events: in effect, they stand as the conclusions of a judicial evaluation of economic, political and personal expectations, or as attempts to find legal definitions for socio-economic processes, rather than as starting points for the processing of events. This is particularly evident in the way in which, until recently, judges used the traditional concept of "exclusive possession" to distinguish leases, which were protected by the Rent Act (1977), from licences, which were not. Traditionally, that concept worked because it was shored up by formalised conveyancing. Now, freed from that formality, possession as a legal attribute has become such a diffuse notion that its content is dependent upon an appreciation of "the facts". Many academic accounts of rent control do recognise that judicial reasoning is motivated not directly by concepts but by evaluations which are subsequently clothed in the language of leases. A familiar example of this is the notion that regulated leases constitute a special kind of proprietary expectation which the judges can accommodate only by deforming traditional property concepts. This academic perspective, the latest version of which is Margaret Radin's argument for a quasi-Hegelian notion of "personal" property, is echoed in the suggestion of the European Court of Human Rights that tenants may have a "moral entitlement" to security of tenure. In dealing with these issues in terms of the traditional distinction between property and contract, the book produces only a partial and legalistic account of the social relationships which underlie tenancies.

This approach blunts some interesting insights. In discussing the requirement that leasehold terms should be certain the authors suggest that the courts have begun to use the language of property to fashion something like the contractual doctrine of frustration. The broader implication is that the equivocal structure of the old leasehold form is productive: it gives the law the flexibility to accommodate the various and complex relationships it has to deal with. One virtue of this flexibility is that it accommodates both of the basic roles of the law on leases: a dispute resolution function and the provision of stable frameworks for people to interpret and manage ongoing relationships. Instead of looking at these uses of indeterminacy, the authors see flexibility as a problem of conceptual coherence which might be remedied by a finer analysis of the lease's contractual and proprietary elements. If, however, the fraying of those elements were seen as a symptom of law's difficulties in adapting to its contexts, it would be possible to tell a richer story about the nature of leases.

Alain Pottage is lecturer in law, London School of Economics.

Landlord and Tenant Law: The Nature of Tenancies

Author - Susan Bright and Geoff Gilbert
ISBN - 0 19 876348 4 and 876349 2
Publisher - Clarendon Press, Oxford
Price - £50.00 and £22.99
Pages - 763

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