The Law of Property Act 1925 is – perhaps regrettably – not a ‘topic code’ like the Sale of Goods Act 1893 or the Theft Act 1968, but merely a ‘Conveyancing Act’, adding new ‘software patches’ to those already added to property law in the 19th century. As a result, cases and other authoritative sources of considerable antiquity may be citable in court in modern property litigation.
In Prudential Assurance v London Residuary Body [1991] UKHL 10, [1992] 2 AC 386 the House of Lords relied inter alia on dicta in Say v Smith (1563) 1 Plowd 269, 75 ER 410 as supporting a dogma about leases, which was then used to invalidate a lease-back created by the London County Council in 1930 in order to save compulsory purchase costs, in the process overruling considerably more recent Court of Appeal authority. (I say dicta because the actual ratio in Say v Smith is that a condition precedent to the option for renewal of the lease in that case could not be performed until the lease, and with it the option itself, had determined, so that the option was logically incapable of exercise). In Berrisford v Mexfield Housing Cooperative [2011] UKSC 52, [2012] 1 AC 955, Mark Wonnacott, the author of this book, persuaded the Supreme Court to find a ‘loophole’ in the dogma in Prudential Assurance by digging up cases and authoritative treatise writing not much later than Say v Smith which, applying the duty of the court to construe private instruments ut magis valeat quam pereat, treated a lease which lacked a certain term as a lease for life. Then, the ‘patch’ provision of LPA 1925 s. 149 (6) which converts leases for life, etc, into leases for 90 years determinable on death (or other condition) could be applied to this ‘construed’ lease for life.
The lesson is that – however regrettable it may be – practitioners and academics working in the field of real property law need at least the ability to understand roughly what is going on in case-law, statute and treatise literature going back to the 16th century. (For the medieval sources, though Wonnacott cites some of them in this book, recourse to a specialist medieval legal historian is really indispensable.)
The History of the Law of Landlord and Tenant in England and Wales addresses this practical problem. It is organised on the basis of the categories of modern landlord and tenant law, and traces the development of the modern law through authorities which can be taken to be more or less far distant antecedents of the modern rules. In contrast to the usual legal historical treatments of the topic, which begin with the development of the leaseholder's remedies beyond the contractual action of covenant, the substantive rules are treated first, starting with ‘Grant and conveyance’ (ch. 1) and ending with ‘Death, insolvency and dissolution’ (ch. 8) before treating actions in the final chapter. The effect is to present in a clear way a view of the long-term development of the modern law which manages to integrate a very large range of authority including a 30-page Table of Cases (going back to 1277), seven and a half pages of statutes ranging from 1266 to 2009, and a mass of treatise literature, abridgments, etc. The book is thus a considerable achievement and will be an extremely useful reference source for anyone confronted with reference to old authority in a modern dispute.
For legal historians working on aspects of the history of leasehold, the book will also be a useful first port of call for getting a sense of the long-run evolution of the particular branches of the modern doctrine and for finding relevant authorities.
For this purpose (and for social and economic historians working on leasehold issues who may consult it) it does, however, need to be handled with a degree of caution. It is very much a lawyer's book, and the substantial economic and social history literature on leasehold practices and their development has not been consulted to contextualise the account.
Equally, it is a modern lawyer's, or ‘presentist history’ book. It assumes the modern category organisation of the topic and modern concerns. Hence – for example – capacity to grant a lease receives a brief treatment of 26 pages, though it covers the ground as much as is needed for its purpose, where Jeffrey Gilbert's treatment of leases, written c. 1710 or shortly before (Oxford Dictionary of National Biography, s.n.) and later incorporated in Matthew Bacon's New Abridgment (1736) is dominated by capacity issues, especially in relation to church leases; and down to the 19th century reforms, capacity issues posed by leasing powers in family settlements, and by leases out of married women's real property, generated extensive litigation. The book is addressed to modern concepts and concerns and their genealogy, not to the concepts and concerns which animated lawyers in any particular past period.
There are also in places some minor technical weaknesses of legal history technique, which may affect the chronology. For a first example, in relation to the use of relevant secondary literature: Sir John Baker in volume VI of the Oxford History of the Laws of England (2003) dates the beginning of the treatment of running tenancies, which were formally and in medieval law tenancies at will, as what came to be called periodic tenancies, to the early 1500s (643–44). Mr Wonnacott cites this book, but dates the change to the 1700s (154–57). It is perfectly legitimate to disagree with recent academic literature, but the disagreement and its basis should be made explicit; here its basis appears from the footnotes to be the combination of Gilbert on leases struggling with a (then) recent case of 1708, with William Blackstone, who cannot be treated today as an accurate reporter of the dating of developments in practice.
Similar issues of chronology occasionally arise in relation to the use of primary sources. At p. 17 the author says that “In 1681, the husband's power to deal with his wife's leasehold property was absolute and extended to leases held in trust for her, too. [FN] But soon afterwards, courts of equity started protecting wives, by refusing to allow husbands to interfere where property had been settled on trustees to the wife's separate use. [FN]” The first footnote cites to Sir Edward Turner's case as reported by Vernon; use has not been made of Lord Nottingham's report of his decision below reversed by the House of Lords, Turner v Turner (1678) 79 Selden Society 711 pl. 893, which makes the context clearer than Vernon, showing that the House of Lords decision overthrew previously settled equitable doctrine relied on by conveyancers. The note has supplementary reference to Wytham v Waterhouse (1596) (wife's trust leases survive to wife if not disposed of by husband, a rule not affected by Turner's Case) and Griffin v Stanhope (1617) (husband's lease by way of security for jointure not a fraudulent conveyance, which is not really relevant). The second footnote cites to the long note on the issue in Francis Hargrave and Charles Butler's edition of Coke upon Littleton at fo. 351a, written in the late 18th or early 19th century (I have looked it up in the 1823 edition), though not specifying at what point in the note; to the General Abridgment of Cases in Equity (1732), which far from showing ways round the rule in Turner's Case, shows it continuing in operation down to the date of that book; to Holdsworth History of English Law vii, 379, a discussion of the precedents in West's Symboleography, written in the 1590s though reprinted for some time after; and to Orlando Bridgeman's Conveyances in the third edition of 1699, but again a book written before Turner's Case was decided. In reality Turner's Case concerned a second husband's power to dispose of a jointure trust of leasehold created by the first husband, and the alternative solutions available after the House of Lords decision were either to insist in the negotiations for the first marriage on jointure charged on freehold, or in the negotiations for the second marriage to make the second husband bind himself explicitly to comply with the jointure trusts of the first marriage. The issue is admittedly neither simple, nor at all relevant after Married Women's Property Act 1882: I give it as an example of chronological problems in Mr Wonnacott's handling of the primary sources, which are not a problem for a modern lawyer but could be a problem for a legal, social or economic historian using the book.
As I indicated above, these are examples of episodic problems in the book's handling legal-historical secondary literature and of primary sources, as possibly affecting the chronology of the narrative. They mean that legal, social or economic historians making use of the book will need to handle it with a degree of caution. But they do not significantly affect either the utility of the book, or its considerable achievement.
