Tenancy types

Many people in this country own land and that still tends to be the aspiration. They say an Englishman's home is his castle. Not so in other countries, France, Germany even the USA, where leasing property has always been as much as lifestyle choice and has never meant 'second best'. People are starting to think more this way here too, especially following the credit crunch which has taken us from not being able to afford mortgages to not being able to get them in the first place.

There also massive differences in tenancy types from a posh flat in Mayfair on a 100 year lease to a six month tenancy of a bedsit. Strictly the terms leasehold and tenancy are interchangeable as both describe payment of rent for an estate in land, but in practice the term leasehold is usually reserved to cover the former type of tenancy i.e the tenant/leaseholder has a fixed term of years which they have purchased by what is called a premium and for which they pay thereafter usually a very small ground rent and a service charge for services such as cleaning, maintenance, gardening etc. Such leaseholders feel that they are owners of their premises and need to distinguish themselves from other tenants who will usually be renting from the council, a housing association or on a six month let from a private landlord.

To make the distinction more exact in law, the long leaseholder, to give him his more usual epithet, usually pays a rent which is so low that he is taken out the extra protection from eviction which it is felt other tenants need as their occupation is so much more insecure, that is the protection of the Housing Acts or previously the Rent Acts. That does not mean however that such long leaseholders cannot be evicted for non-payment of rent or service charge or other breaches of the lease. Indeed I have had several cases in my career where this has happened. Usually however if the leaseholder cannot, or more usually will not pay as a result of bloody -mindedness, the mortgage company will step in and pay instead as they have the right in law to do to avoid what is called 'forfeiture'. Such forfeiture would otherwise mean the lease disappearing for the sake of (usually) a few hundred pounds of indebtedness and the consequence that not only will the leaseholder have nothing to sell on to recoup the premium but the lender would have lost their security too. Forfeiture however is a very technical subject and I do not intend to address it more here.

Outside these long leases, tenancies divide into those in the public sector i.e. council tenancies and those in the private sector. The later include Housing Association tenancies which were classed as a type of public sector before the Housing Act 1988 but now are assured tenancies in the private sector. However it many ways it is a distinction without a difference as housing associations usually grant fully assured tenancies which give very similar security to council tenancies, including often the right to buy. Public sector and housing association landlords are both known as social landlords and this area is known as social housing. There has also been a lot of buying of council stock by Housing Associations since the 1980s, encouraged by successive governments, which has meant that in some regions a big housing association looks and feels like the council. An example is Flagship Housing which not only owns almost all the social housing stock in Suffolk Coastal who have only retained some emergency accommodation for immediately homeless people, but is the housing association who is nominated from the Housing Register and under homelessness duties. Housing association tenants, like council tenants, could only be evicted on proof of statutory grounds, the most common of which of course is rent arrears, followed by causing nuisance and annoyance to other tenants. There are however some more obscure grounds such as under-occupation and over-crowding which are only applicable to council tenancies.

In the private sector, nowadays, fully assured tenancies have to be expressly created as in the case of housing association tenancies so most tenancies go by default to the poor relation within the assured category, namely the assured shorthold. The basic idea with shortholds is that the government (in contrast to social housing) wanted to create as much letting as possible from private individuals and companies to bridge the housing shortage and therefore needed to make it fairly straightforward to get back possession, consistent with giving tenant's some notice and protection so they have time to find somewhere else. The basic concept is that possession can be initiated by giving 2 months notice on or before 6 months of the tenancy expire. There are some technical rules (as ever with the law!): if you contact my office we can send you a free guidance note on this, prepared in this case mostly from the landlord's perspective as most of my instructions on shorthold possession is to landlords.

It is worth also making the point in closure that tenancy law is an area where it is still necessary to be familiar with old law because often each new statute, whilst changing the law for granting of future tenancies - usually it has to be said in the landlord's favour to a marginal or greater extent - preserves the existing provision for tenancies then extant. Thus there are a significant number of tenancies in the private sector still pretty bulletproof under the Rent Acts, some of which date back to the 1960s or even earlier. Also there are special provisions to protect agricultural workers and others who hold tenancies in return for employment and some species e.g. where a private landlord also lives on the premises i.e. letting out a room in his house, where there is even less security than the shorthold. A technical subject indeed and one in which it pays to have a long legal memory and a reasonably high legal IQ.

Holding people in contempt

Often people disagree with judge's decisions. As I say to clients when advising on the risks of trial, in the end it is the judge's opinion. Unfortunately, that's the opinion that counts but then again if you are not happy there is often a right of appeal, if you've got the stomach and the purse for more litigation. What you can't do is show your dissatisfaction but disobeying the decision. That's called contempt of court and can end you up in jail.



Contempt of court can arise in the following situations:

• disobedience of a court order. A very common one of these is refusal to abide by a contact (access) order to children. Mothers have occasionally jailed for sticking two fingers at orders giving access right to fathers (and vice versa) - indeed there have been cases where such parents - know in the trade as 'implacably hostile' - have had custody decisions in their favour reversed as a consequence too. Another example is where people have injunctions against them, possibly for harassment, but also for other things, including cutting down hedges, and fail to obey the order.


• failure to attend court despite an order for requiring attendance. This can be sneaky penalty for someone who is a reluctant witness in a case: the judge can order an officer called the tipstaff to arrest them and bring them before the court to give testimony. Usually however a grovelling apology combined with belated obedience will still suffice


• a less used one is contempt in the face of the court. This includes clear examples such as having a go at the judge - verbally or even physically - or generally interrupting the proceedings. Such contempts are in part the reason for security measures at court (although I sometimes think those at Ipswich are a bit OTT for our humble parish - there are usually two security officers on the door to search you as you go in as well as bounce you out presumably if you are contemptuous although I have never seen the later happen). This contempt does not have to be in the court precincts if it relates to a case currently before the court. Witnesses who are still giving evidence at the close of the court day are told that they must not discuss the case overnight with anyway for fear of tainting their evidence. So if they met other witnesses in the pub that evening they could be in contempt, unless they could show the case was not discussed (risky).


• a rather separate contempt limb is directed at journalists and is under the Contempt of Court Act 1981. It is a criminal contempt to publish anything which creates a real risk that the course of justice in proceedings will be seriously impaired. This does not of course prevent faithful accounts of the day's unconcluded proceedings, including the evidence given, as long as no opinion is given. As I say to my clients, it's only the judge's opinion what counts.
  

Legal poetry

There aren't many poems about the law. Perhaps not surprisingly because the law is regarded as dry, of the mind not the spirit, perhaps even dull to the uninitiated.

But on the other hand, I have known many lawyers and even some judges take poetic licence with the law occasionally...

Anyway here's one poet, W H Auden, who was brave enough to do the reverse and take poetry into the law. Perhaps a weaker effort from the writer of such greats as 'Stop the Clocks' but a valiant effort in a tricky marriage.




Law Like Like Love


Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Law of negligence - the mysterious case of the snail in the bottle

The last post was on the basics of contract law, one of the principal cornerstones of English common law. So I thought this time I would go for the other one, tort. It is of course not a word non-lawyers will be familiar with, but it essentially covers the categories of civil wrong which are not based on contract or statute. The main torts which spring to mind are trespass - to the person, to land and to goods - nuisance and negligence. This time I am going to talk about negligence.

The essence of negligence is that people should take reasonable care to avoid causing harm to others. It practical terms it covers many types of claim people will be familiar with e.g road traffic accident claims, accidents at work and claims for mistakes by professionals and others.

For a negligence claim to arise there has to be a duty of care, a breach of that duty and foreseeable loss. These terms have been argued over for decades. The leading case is Donoghue v Stevenson, a case heard in 1932. Donoghue claimed that she had become seriously ill as a result of imbibing a bottle of ginger beer which had the decomposed remains of a snail in it. She wanted to sue the manufacturer but of course there was no contractual relationship between her and the manufacturer. In a famous dictum, Lord Atkin developed the principles which have more the a ring of The Bible about them, expounding that you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour i.e. love thy neighbour as thyself.

Reasonableness crops up a lot in negligence and indeed in law generally. There is often talk of the reasonable man who used to be called the 'man on the Clapham omnibus', to indicate he had the common touch, and values, of all right-thinking members of society. Of course today he would have to be the man, or woman of course, on the Nintendo Wii, but you get the point. What the reasonable man should care about and foresee, the Defendant in the case should have foreseen, and if it wasn't right, taken steps to avoid it.

In passing, it is important to remember the judges cannot create law, at least in theory. Therefore when some students say the the law of negligence dates from 1932, this is strictly wrong. It would take some historical jurisprudence research (which I think I would enjoy, if I had the time) to trace back the common law before this but Winfield and Jolowicz on Tort says the judges had been led astray by some fallacious dicta in a case of 1842. Presumably before that it was the man on the sorrel horse who held sway. It is fascinating how the law of negligence adapts to new circumstances in society, whilst keeping of course the core principles intact if reinterpreted in a modern way. There are cases now about duty of care owed by the army to soldiers, which thought would have been unthinkable of course at the time of the Crimean War (see an earlier post of mine). One area which I think is ripe for development within the law of negligence is irresponsible mortgage lending. There are cases where it is clearly foreseeable that the borrower will not be able to repay under the loan terms. It's true that the borrower has breached the contract but what duty did the lender owe tho him in selling the loan? Is it justifiable that the lender should take his house when he knew or ought to have known that there was no real prospect of the borrower keeping to the instalment terms? I have a case in this area running at the moment which is going to appeal from a possession order. Will the new Lord Atkin please stand up?

WHAT IS A CONTRACT? (and being buried above Marilyn Monroe)

• My last post was about the Marx Brothers and their entanglements with contracts both on and off screen. It occurred to me could I do a more serious short post about what is a contract. The purpose of this blog is to reach curious non -lawyers not so much to engage will fellow legal professionals who I tend to engage with anyway. If asked could I accept a challenge to explain to the uninitiated what contracts are all about, but not in the way we learn at Law School?. After all, along with negligence, it is probably the cornerstone of common law. In almost every first interview the word crops up and perhaps I don't always take the time to explain the principles. I am going to do this on the radio show next week as well.
  
  So here goes.
  
  A contract is no more or less than an agreement. For there to be an agreement there has to be two or more people (a lot of people agree with themselves but they should not really). The key ingredients are:



• Offer and acceptance. One party has to offer some terms and the other party has to accept those terms. Silence is not acceptance but conduct can be examined to see whether the contract has been formed. In practice this area rarely troubles us because even if we can't find a formal 'I accept', the parties act on the terms. But it means you cannot accept by sliding in different terms (that is usually termed a counteroffer), and an offer can be withdrawn any time before acceptance. Also some contracts have formal requirements for formation (see below)



• 'Privity of contract'. Generally, only the parties to the contract are bound by it or can benefit from it. However there are some technical but not insignificant exceptions, particularly relating to land law (e.g. in the area of restrictive covenants) which I won't go into now. Also a significant blow was dealt to privity at the end of the last century by the Contracts (Rights of Third Parties) Act 1999 which allows persons who are not privy to the contract to enforce it if it was contemplated that they would benefit from it, unless such right is expressly excluded in the contract (which to be honest it often is, by astute lawyers)



• 'Consideration'. Generally for a promise to be enforceable the other person must not only accept but provide what is known as consideration i.e. some value back which is regarded as such by the promising party. This is usually money or property but it does not have to be. There is a principle that although consideration has to be have 'value in the eyes of the law' it does not have to be adequate: one penny will do if that's what the other party is happy with. A bid has been accepted for $4.6 million for the burial plot above Marilyn Monroe promising ' the chance to spend eternity above her'. People are entitled to have more money than sense in law. However there have been some cases over whether consideration has actually been deemed valueless. An example is White v Bluett (1853) in which it was held that a son had not provided consideration for his father's promise not to enforce an extant promissory note by promising in return not to bore his father with his complaints. However contrast Ward v Byham (1956) in which a promise by a mother to make an illegitimate child 'happy' was regarded as part of the consideration for enforcing the father's promise to make an allowance. Actually I think most of us can see the common sense of the distinction between the two cases - sons shouldn't really be moaning at their fathers anyway, should they?



• Intention to create legal relations. Some would-be contracts are not because they are deemed not to be seriously intended. Promises made in jest and anger can come under this. It does of course depend on the context and facts. A pay rise sought and promised in the jollity of the office party might not be a contract when if it talked about in the office it would be. I once got my daughter to sign a homework contract supported by the valuable consideration of certain privileges. Apart from the fact that contracts with minors are generally not enforceable anyway this would probably also fail the intention to create legal relations test, although she didn't know and I didn't tell her of course on either count.



• Finally in these key principles, some contracts have formalities that have to be abided by to make them enforceable. The most common one is to be in writing. It is always best to have a contract in writing anyway, as a matter of evidence.

Here endeth the lesson on contracts for the uninitiated. I hope you found it useful.

SLANDER AND PASSING OFF - THE GROUCHO MARX WAY

Between November 1932 and May 1933, victims of the Great Depression could cheer themselves up a bit by listening to the brilliant wit of Groucho and Chico Marx on the radio posing as attorneys at a small law firm in the States. The firm was called Flywheel, Shyster and Flywheel. Groucho was the eponymous Flywheel and there was in fact no Shyster in the firm, Chico playing Flywheel's assistant, Ravelli, to exploit his stage Italian accent. In fact the show was originally entitled Beagle, Shyster and Beagle but following the airing of the first episode a New York attorney called Beagle filed a lawsuit for $300,000 alleging his name had been slandered and that its use was damaging his business and health. He also claimed that people were calling his firm and asking "Is this Mr Beagle?"When he answered "Yes", the caller would say, "How's your partner, Shyster?"

The claim by Mr Beagle raised a couple of legal issues. Firstly, slander. Slander is a sub-division of defamation, which broadly is a publication which reduces someone's reputation amongst right-thinking members of society, libel being the written and slander the oral publication (actually as this was a recording I think it was actually technically libel). There is no need to prove intention to besmirch. I doubt Groucho and Chico or the programme makers had ever heard of Mr Beagle. Here however the defamation alleged was somewhat indirect i.e. that the programme had the effect of associating Mr Beagle with a shyster, a corrupt lawyer. I have no idea of Mr Beagle's pre-existing reputation as a lawyer but we must assume it was good or he would not have risked the lawsuit at all (plenty of celebrities have fallen for that trap: Johnathan Aitken, Oscar Wilde to name two). In addition, Mr Beagle might have been claiming any an action known as 'passing off', namely that his law firm had been confused with the one in the programme, to the detriment of his, but if so it is difficult to see how this would work since the radio one was clearly fictional. It is not a defence to say that the defaming statement was a joke but nonetheless it would have been interesting to see the outcome if this had ever come to trial - would right-thinking people (even those who were his clients) really think that Mr Beagle's firm was being portrayed in some way on the programme so as to link in their minds that he had a partner who was a shyster? It seems an action too far, but the producers and sponsors (who were in fact an oil company, Standard Oil) panicked and so Beagle, Shyster and Beagle became Flywheel, Shyster and Flywheel, a much better name anyway. The next episode explained that Groucho's character had divorced and resorted to his 'maiden name' (perhaps one of Groucho's little jokes in itself).

Groucho was no stranger to intellectual property law. On another occasion he did not back down. When Night at Cassablanca was being completed for release in 1946, Warner Brothers' legal department threatened legal action, presumably this time for breach of copyright, saying that the film's name was too similar to their film Cassablanca released four years earlier, starring Humphrey Bogart and Ingrid Bergman. The wittiest of men sent a typically brilliant Groucho style letter in response: 'You claim that you own Cassablanca and that no one else can use it without your permission. What about ' Warner Brothers'? Do you own that too? Professionally we were brothers long before you were'. Warner Brothers nonetheless persisted and insisted on seeing the storyline. Groucho responded by sending them a plot in which he would be playing 'Bordello, the sweetheart of Humphrey Bogart'. At this point, Warner Brothers gave up.

A blog entry on the Marx Brothers and the law gives me the excuse to mention what I think is one of the cleverest comedy exchanges ever written which is when Groucho and Chico argue about contract terms in Night at the Opera. This contains the immortal punchlines:

Groucho: That's in every contract. that's a sanity clause

Chico: Ah you can't afoola me. There ain't no Santa Claus.

SILLY STATUTES

On a more light-hearted note, I thought I would mention a few laws that have been on the statute book for a while which have perhaps outlived their original purpose. One such is the Servants Character Act 1792 , still alive and kicking. The preamble to the Act says it all: Whereas many false and counterfeit characters of servants have either been given personally or in writing by evil disposed persons pretending to be the master....of such servants. And whereas the evil herein complained of is not only difficult to be guarded against, but is also of great magnitude and continually increasing, and no sufficient remedy has hitherto been applied..'. The Act made it an offence to impersonate a master presumably because there were a lot of bad servants out there. Today we are more likely to be exercised by the bad quality of the master/employer than that of the servant/employee but nonetheless this quaint anachronistic law remains. Another one in a similar vein is the Disorderly Houses Act 1751 which addresses 'many subtle and crafty contrivances of persons keeping bawdy-houses' , in particular the mischief of not being able to tell who the true owner or keeper of such establishments might be so as to hold them responsible. This Act therefore provides that anyone who seems to have some control is liable (thus presumably encouraging further disorderly behaviour as no one would want to be seen to be in control). Coming more up to date there is section 85 of the Public Health Act 1936 which deals with 'cleansing of verminous persons and their clothing' and provides that a local authority may remove a 'verminous person' to a 'cleansing station' and detain him and effectively strip him of his clothing without his consent if a court deems it necessary that 'he or his clothing should be cleansed'. Finally in this category is the Hypnotism Act 1952 which provides for licence conditions for the conduct of public hypnotism, brought into play long before TV hypnotists became the rage. Perhaps this statute has more relevance today than the others and may not be such a silly statute although it certainly doesn't prevent us seeing a lot of silly (hypnotised) behaviour on the telly.