Tag Archives: land law

Fairly unprecedented?

A quick post … I am just doing my homework for the next round of Land Law tutorials, and struck by this sentence, from Baxter v Mannion [2011] 1 WLR 1594 at 1595. There are reasons for the lack of reference to cases, since this was dealing with recent legislation, but still, pretty restrained of the CA. It does note that counsel did use a few cases. In spite of its lack of historical mooring, I expect my students will be glad about the now-unusual shortness of the case-light report (a mere 10 pages, not counting annexed legislation).

22/10/2024.

Deserted wives, dastardly husbands, dodgy metaphors

At this time of year, the thoughts of a historically-minded tutor of Land Law turn to the nature of equity. Yes, it is time to inflict upon a new cohort of second year students the distinction between legal and equitable rules, to skate over the development and demise of conciliar jurisdictions and get them to read some of Land Law’s biggest cases.

This year, I have had reason to go back to the House of Lords decision in National Provisional Bank v Ainsworth [1965] AC 1175, and read it for the first time in quite a while. It weighs in at about 47 pages, so a bit of a thumper, I am afraid. Still, undoubtedly an important case, both in its attempt to define what is, and what is not, a property right as opposed to a personal right, and also in its many nuggets about social conditions and gender relations in the period which might be seen as the long twilight of ‘coverture’ as far as matrimonial property was concerned. The big point of the case is taken to be the refusal to class as a property right the ‘deserted wife’s equity’, with the result that a woman whose husband had left her and her children (going off and finding another woman, committing adultery, not paying maintenance and trying hard to get his wife out of her home, as Lord Denning in the Court of Appeal informs us – clearly what a nice fellow and a man of integrity) did not have a property right to enforce against a bank which had granted her husband a mortgage, and wanted to turf her out and sell up.

It is not an uncommon reaction to such cases amongst today’s law students to see the woman in the case as rather pathetic, and to think that this is very much a thing of the past, and of past incarnations of marriage and family life. It is true that we are not likely to see again the overt suggestion that a married woman does not count sufficiently to be ‘in actual occupation’ of land (raised here, and rumbling on until the 1980s), and that subsequent developments in the area of matrimonial property, banking law and constructive trusts might well have helped out Marjorie Ainsworth, a.k.a. ‘the wife’ in this case, so, the problems here would be unlikely to recur in exactly this form. Nevertheless, we are unlikely to see the end of spousal misbehaviour, desertion and mean and petty conduct following separation, while marriage and gender inequality persist, and some of the judges’ positions and descriptions relating to gender and, specifically, to married women, seen here, have not entirely left the building. In particular, I want to focus on something I had forgotten about from this case – its use and expansion of that rather questionable metaphor of equity as ‘not past the age of child-bearing’:

‘Equity may not be past the age of child-bearing but an infant of the kind suggested would lack form or shape.’ (Lord Hodson, 1224E).

There is an interesting consideration of the obvious (and rather grim – women as brood mares … judges presumably ‘fathering’ doctrine …) gender aspects of this in an article on legal metaphor from 2004: A. Culley and M. Salter, ‘Why study metaphors?’, (2004) 15 KCLJ, 347 – well worth a read. The authors note the echoes of ancient fears of the ‘monstrous birth’, familiar to medieval and early modern historians, which we can hear in this iteration of the metaphor.

Two further aspects strike me as interesting, looking at Ainsworth from a 2024 perspective. The first is that there is something particularly jarring in using a metaphor which positions equity as a woman, and stresses the centrality of child-bearing to a woman’s identity, in a case in which am actual woman, and one who had dutifully produced four children before her husband chose to walk out, was being screwed over by the combined might of social and gender relations, a selection of existing, man-made, legal doctrines, and a manel of judges. Metaphorically fertile women, good, real women, whether or not still able to reproduce in the traditional way, who cares? The second is that ‘past the age of child-bearing’ sounds particularly out of place in a world of IVF, surrogacy, choices about fertility, focus on living a good life through and beyond the menopause, and the occasional woman in the higher echelons of the judiciary. . I will be interested to see if it continues to be used in a world which finally has a small number of women in tribunals of the highest level, women who, things being what they are in the world of the legal profession, are quite likely to fall into the dread category of being ‘past the age of child-bearing’ themselves.

I must say that I am not generally in favour of the use of metaphor in legal discourse, if it can be avoided – even if it doesn’t strike an inappropriate, and icky note, as here, it is often rather pretentious. Judges would be well advised to steer clear of attempts at literary greatness. Clarity is what is wanted. If we must have a metaphor here, however, what would be better? Something to do with flowers, perhaps? Ah, the ladies would like that, wouldn’t they?!

18/9/2024

Image – a rose! Photo by Walyudin on Unsplash

Of priors and precedent: tradition and truth in Land Law

And this is where I have got with the paper on The Prior’s Case for the SLS Legal History section. This may find its way into a ‘proper’ publication at some point, but probably not in this form … anyway, for anyone who stumbles upon it and fancies a bit of medieval-to-modern musing, here you go …

Of priors and precedent: tradition and truth in Land Law

DRAFT VERSION

One of the oldest cases still referred to in modern legal writing, and in litigation, is a case from 1368: Y.B. Hil. 42 Edw. III f. 3 pl. 14.[1] This was introduced to me, as a second-year undergraduate studying Land Law, as The Prior’s Case, though it is sometimes known as Lawrence Pakenham’s Case, and, occasionally, Prior’s Case or The Prior of Packenham’s Case). It has a place in the Land Law canon in the area of freehold covenants, and, specifically, that of the running of the benefit of covenants. A recent use of it, in the judgment of Nugee LJ in Bath Rugby v Greenwood [2021] EWCA Civ 1927, shows the standard account of the case in legal practice.[2] Nugee LJ referred to The Prior’s Case as ‘example of noticeable antiquity’, and summarised it in the following way:

The … prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor”, as it is there said.[3]

The legal rule for which this case is often said to be authority, then, is that the benefit of covenants may pass or ‘run’, via annexation to land or property rights.[4] It may well be that the area of freehold covenants does not command great enthusiasm outside black-letter legal scholarship and practice, but this use of a medieval source in modern legal practice (and writing) does, however, have implications beyond covenants, and beyond Land Law doctrine. To put it bluntly, The Prior’s Case does not support the ‘rule’ for which it is routinely cited, this has been known for a considerable period of time, but the inaccuracy persists. That it does persist is telling, in terms of attitudes and methods of lawyers with regard to history and older legal sources, and should be brought into the discussion of uses of history in legal contexts which has developed in the last few decades, alongside the more common focus on the validity of particular legal propositions or historical facts, on constitutional matters or the interpretation of legislation.[5] A recent book has argued that there is a need for Land Law students and practitioners in particular to be aware of older doctrine in that area.[6] Consideration of The Prior’s Case and its treatment indicates that what might be thought of as the evidential side of the legal use of history – the way in which modern lawyers and legal scholars handle the documentary evidence of law’s own past – is also an issue which could and should be taken more seriously by those incorporating historical legal materials into their arguments about modern law.

The problem with the standard account

The Prior’s Case, and specifically Y.B. Hil. 42 Edw. III fo. 3 pl. 14, is often cited as authority for a rule it does not support. In fact, it is not possible to say that it stands for any particular rule, since there is no evidence of a clear decision in the case. This lack of an outcome is apparent from Y.B. Hil. 42 Edw. III fo. 3 pl. 14 itself, from the related plea roll,[7] from translations of the report and roll entry which have long been available, and it has long been noted in published work by more historically-sensitive or knowledgeable legal commentators. The same sources also show that, while there seems to have been some argument for something along the lines of the running of the benefit of covenants with land or rights in land, this was not first choice of argument of the claimant in The Prior’s Case, but sat alongside arguments focusing on the transmission of a right to the claimant as heir to the original covenantee, and those based on something like prescription of the right. Furthermore, an additional source in a medieval cartulary, which I have examined, suggests that the real facts behind the case involved a situation even less easily comparable to a modern freehold covenant scenario than the Year Book report has seemed to suggest to later lawyers.

There is no room for argument about the lack of a conclusion in the Year Book. Y.B. Hil. 42 Edw. III fo. 3 pl. 14 states that the case was adjourned. Although this source is in Law French with some Latin (the statement about adjournment being in Latin), and no modern English lawyer should be expected to be familiar with the ancient languages of the common law, it is not unreasonable to criticise inaccuracy here, since anyone going to look at the source cited could see that it is not in English, and seek a translation; and published translations, which make it quite clear that the case was adjourned, are available.[8] It seems difficult not to conclude that: (a) there has been a history of inaccurate citation in this area; and (b) some lawyers are content to cite cases they have not understood (or, perhaps, read at all).

It is also worthy of note that secondary work has long since picked up the lack of a conclusion in this case, and that an honourable minority of modern writers have seen this. There was discussion and debate about it on both sides of the Atlantic in the nineteenth century. It is clear that Sugden, for example, actually did go back to the Year Book, looked at the report so often cited, and noted what it did and did not say in this context.[9] The plea roll entry was found and set out, translated, in an article by G.E. Woodbine in the 1920s.[10] Considerable information was thus available to those who consulted academic literature. If this knowledge faded into obscurity, at least in England, A.W.B. Simpson’s 1975 history of ‘the law of contract’ again amplified the point about a lack of clarity as to what was actually decided in The Prior’s Case.[11] This was picked up in the 2000 edition of ‘Megarry and Wade’,[12] and so brought within the corpus of material one might reasonably expect to be consulted by those with a serious, scholarly, interest in Land Law. It does not, however, seem to have ended the simplistic accounts of the case in court or practitioner text in England: a matter which some of us might take to be a sad indication of the limited ‘impact’ on legal practice of even leading academic authors.

I will return to the matter of inaccuracy with regard to the outcome of the case shortly, but will, first, note one further issue which speaks of citation without reading, and that concerns the name given to the case. As mentioned above, there is variation in the names assigned to Y.B. Hil. 42 Edw. III fo. 3 pl. 14. Such variation is neither unusual nor necessarily objectionable. The Vulgate Year Book which is cited does not give the case a name, and does not fully name the parties. There is, in fact, an ‘official source’ which does give the parties’ names: the plea roll, which, as mentioned, has long been known to legal historians.[13] This shows that the claimant was a certain Lawrence Pabenham and the defendant(s) the prior (and convent) of Canon’s Ashby, Northamptonshire.[14] If one were confined to using the Year Book source cited alone, one would not have that information, of course. Having read only that source, whether in original, or in translation, one might well call the case after one of the parties. Since a small error crept into the Year Book, misreading a B as a K and calling the claimant Lawrence Pakenham, rather than Pabenham, it might be called ‘Laurence Pakenham’s Case’ (which would be more conventional) or ‘The Prior’s Case’. ‘The Prior of Packenham’s Case’, [15] however, muddles the parties in a way which is hard to imagine would be done by anybody who had skimmed Y.B. Hil. 42 Edw. III fo. 3 pl. 14 or a translation of it.[16] Leaving aside the fact that Pa(c)kenham, in Suffolk, never actually had a priory,[17] a cursory glance at the Year Book report cited would demonstrate that it neither assigns the defendant in this case that title nor says he was prior of such a priory. The chapel in which the singing was desired by the claimant was said to be in the claimant’s manor ‘of K’, so there is no reason to deduce from that the fact that the prior was ‘Prior of Pa[c]kenham’, and nor must it be supposed that the prior in this case had a priory located in the place from which the surname of the claimant was derived. This does seem to be a matter of some carelessness with the cited source.

Looking only at the source which is usually cited, then, we can conclude that there is a lack of fit between what the evidence says and the account which is given of it in some modern legal argument. If we go beyond that single source, however, as would be standard practice for the legal historian, and as Woodbine did, almost a century ago, the discrepancy between orthodox account and the facts of the medieval dispute is reinforced, and, indeed, becomes starker. The plea roll backs up the Year Book account of adjournment,[18] and of the alternative arguments to enforceability of the covenant made for the claimant, based on claims of heirship and prescription.[19] We learn that the problem with his claim ‘as heir’ was that another living person had a better claim to be the covenantee’s heir: a minor called Margaret, who was descended from the covenantee via a senior branch to that from which Lawrence sprang.[20] In addition, both the plea roll and also an additional source give some further information about the underlying ‘deal’ for the singing of divine service, which serves to take it further away from the modern ‘running of the benefit of freehold covenants’ situation, with which it tends to be connected. Lawrence’s case, as set out in the plea roll, is based on an agreement, made by indenture in 1229-30, between his great grandfather, Hugh, and the then prior and convent of Canons Ashby. This agreement provided for singing at the chapel of Hinwick (Bedfordshire) three times per week, in perpetuity. Lawrence claimed that, though the obligation had been performed for almost a century, it had not been done for twenty years: he had not been able to get the prior and convent to keep to their agreement, and he claimed 40 l damages for this. A copy of a composition document in the cartulary of Canons Ashby appears to add another fact: this was not a unilateral undertaking, or full exchange for a grant of land: Hugh and heirs had undertaken to give the canons eight shillings a year.[21] The inclusion of a payment from Hugh and his heirs heightens the sense of ‘contractual’/exchange, or perhaps personal obligation, over an idea of modern-style ‘annexation to land’ in this arrangement. To a legal historian, it is a reminder of the breadth of the fact-scenarios to which actions of covenant might conceivably be thought relevant at this time, going well beyond those anchored to land, and also of the involved and dynamic story of the development of writs and thinking in this area of promises or bargains with regard to the performance of divine services, which might be framed in a number of different ways.[22] In short, although Lawrence Pabenham’s action was made within the framework of the action of covenant, that really does not make the case a clear authority on modern freehold covenants, considered in the Land Law context. The word ‘covenant’ may be something of a ‘false friend’ here, and this appears to intensify the sense that reference in modern legal practice and writing to The Prior’s Case is less than helpful in this context. I am not suggesting that it would be appropriate to expect modern lawyers to chase down plea rolls or cartularies, but the additional facts do reinforce the point that this case was not decisive on the benefit of covenants in the modern sense running with land.

Law v. history: historical hearsay and unreliable evidence

Some of the most prominent recent work on misuse of medieval legal sources has been in the area of abortion rights, a much more controversial area than freehold covenants.[23] There is a lot less heat in discussions of the running of the benefit of covenants: we might debate the merits of a system of private property in land, but if we have such a system, the idea that the benefit of covenants might run is relatively sensible, and unlikely to bring people out on to the street. The lack of political heat in the area, however, makes it, in many ways, a good place from which to start a consideration of the issue of the (mis)use of history in law, free from possible accusations of instrumentalism.

As far as the practical workings of the common law are concerned, it probably does not really matter that one of the sources cited for a rule about the running of the benefit of freehold covenants may be incorrect. Pragmatism and a sort of doctrinal prescription are likely to win out over historical purity, and there is unlikely to be an outbreak of legal Donatism, tearing down the whole doctrine because of this longstanding inaccuracy with respect to one particular piece of medieval litigation. There is, however, a point in raising the issue of modern lawyers’ use of older ‘authorities’, and that point is to strengthen the quality and reputation of legal scholarship and practice as intellectual endeavours. Clearly, it is not essential for lawyers and legal writers to ‘name-check’ very old material in this context: both academic texts and practitioner books can certainly manage to give a coherent account of freehold covenants without mentioning The Prior’s Case at all.[24] Including it, therefore, is a clear choice, calculated to give a certain impression, both of the law (as ancient) and of the author (as learned). From the point of view of the legal historian at least, inaccuracy with older legal sources looks like intellectual pretension: making a show of knowledge, based on an idea that it is impressive to hark back to the distant past, even if this is not necessary, but without the willingness to do the work of understanding it. We might see it as inconsistent both with general academic standards, and also with the common law’s own reservations about hearsay evidence,[25] though, in another sense, there is a certain continuity with the strong ahistorical streak running through common law practice, from at least the time of Edward Coke.[26] Modern legal scholars certainly do not seem unduly perturbed by the possibility that ‘what a later judge declares to be the ratio of a case might actually be a different proposition than what the judge giving the initial judgment intended’.[27] Still, this is not quite the same as saying that an older law report said X when it clearly did not, and it does seem worth considering why this happens.

One contributing factor is certainly the fact that most lawyers have not studied legal history. Legal history is not a compulsory part of law degrees, and, of course, not all lawyers have law degrees in any case. It is certainly unrealistic, now or in the near future, to expect modern legal practitioners to become experts in medieval sources or legal history. Nevertheless, there are some fairly straightforward aspects of ‘practical legal history’ which could be acquired fairly straightforwardly, and would avoid some of the misunderstanding and misuse seen here. In particular, for those citing medieval ‘Y.B.’ sources, a basic understanding that there may be a difference between older and modern legal categories, and that there is a difference between older and modern legal sources does not seem too much to ask.

A key misunderstanding which is revealed by the treatment of The Prior’s Case is the apparent assumption that Year Book material is essentially similar to a modern law report. These items, however, are profoundly different in nature to a report from the post-1865 period, or a modern judgment of the sort published online by courts.[28] They were not ‘official’ publications, were not treated as authoritative texts of the modern sort in their own time, and, as The Prior’s Case demonstrates, did not necessarily include either an outcome or a ratio.[29] They were writings produced for the instruction of lawyers pleading in the royal courts, modelling arguments by lawyers, exchanges with the judges, as they undertook the task of reaching a single issue to be put to proof. The way in which premodern courts and lawyers worked was very different to those in the ‘post-enlightenment’ world. As Joshua Getzler has put it, ‘The common law until well into the eighteenth century may be described as a type of tacit or craft knowledge, learnt by doing, and resistant to formal or rational doctrinal statement.’[30] Minimal additional training or study would probably be some restraint on lawyers and legal writers who wish to present its sources as if they were such formal, rational, doctrinal statements.

There are also some obvious ways in which methods of reasoning and use of authority in common law make distortions of older sources more likely. One of these is the technique of reading history backwards, favouring recent sources over sources contemporary to events in legal history. As F.W. Maitland, for example, noted long ago, while a historian would instinctively start from the earliest, original sources, this is not the technique of the common lawyer.[31] This remains the case. For example, even when writing for a book arguing for greater historical sensitivity amongst Land Lawyers, a lawyer-author reaches for the eleventh edition of Blackstone and a nineteenth-century edition of Coke, rather than those versions published in the eighteenth and seventeenth centuries respectively.[32] If we return to the Bath Rugby case, and look at how Nugee LJ’s account of The Prior’s Case was arrived at, it becomes apparent that he has used a ‘tracing back’ method, starting with a judgment from In Re Ballard’s Conveyance, a case from the 1930s,[33] and working backwards through a line of precedents, to an account of The Prior’s Case in Sir Edward Coke’s report of Spencer’s Case (1585).[34] It does not appear that he thought it necessary to go any further. Such a method, hallowed by common law practice as it may be, is, clearly, likely to increase the chances of distortion. This is made all the more likely by the particular reliance upon, and deference to, Sir Edward Coke seen here and in the work of many others who cite the Year Book account of The Prior’s Case. Coke was a very important figure in the history of law, but one long known by legal historians to have been – as we would now see it – free with facts in his accounts of litigation from his own time, and with older legal sources.[35] This is not the place for an in-depth assessment of Coke, and his interpretations do not necessarily need to be seen as dishonest, but rather an effort to tidy things up, to bring an older legal world within the norms of his own day. It should be noted, however, that his approach might serve to present as substantive rules parts of a tentative discussion about pleading, as here, and that later lawyers’ lionisation of Coke and tendency to take his work uncritically and deferentially, can perpetuate and amplify his distortions.[36]

On a smaller scale, distortions may also be perpetuated or amplified by another tradition in the literature of modern legal practice: the ‘textbook tradition’, and specifically the ‘practitioner work tradition’. This sees a substantial hallowed work on a particular area of law passed on over an extended period, to be curated by new editors.[37] Such new editors are, of course, at liberty to change a book radically, but may find it to be the line of least resistance not to do so, perhaps particularly when the ‘line of descent’ is personal as much as professional. In the relevant context of freehold covenants, there is a good example of this: the tome known as ‘Preston and Newsom’, which passed from these paired authors, after the early death of C.H.S. Preston, to Newsom alone, then to Newsom’s son, later joined by a junior barrister in Newsom junior’s chambers.[38] This latest edition of the work continues to list ‘The Prior of Packenham’s Case’, and to give the old story of the case, while the author of its main rival, which first came out in 1999, starting afresh and unburdened by existing text, did not feel the need to bolster its intellectual credentials with this appeal to the medieval at all. There certainly seems to be a good argument for legal writers to avoid distortions and the appearance of intellectual pretension by following this practice, and for those responsible for new editions of older works to pay attention to the accuracy of their use of historical legal material.

Concluding thoughts

A memorial brass to Lawrence Pabenham (and his two wives) in the church at Offord D’Arcy, gets the date of his death wrong (or at least gives a date different to that to be found in ‘official records’).[39] Lawrence, the claimant in what has come down to us as The Prior’s Case, thus seems to have been a man who attracted inaccuracy and re-interpretation, from a point soon after his death. We cannot, of course, hope to obtain ‘the whole truth’ about a man of the fourteenth century from the documents and other evidence left behind, and it would certainly be naïve to assume that he, or his legal representatives, told his story in the litigation with which we are concerned in ways entirely ‘unspun’ and consonant with the truth. Nevertheless, while the whole historical truth, especially at such a distance, is unattainable, there is still some merit in avoiding clear untruths.

While citation of the Year Book report of The Prior’s Case for a proposition regarding the benefit of covenants has tradition behind it, as this paper has emphasised, the usual account of the case is inaccurate and heavily dependent upon second hand, and more remote, summaries of the report. In the predominant account of The Prior’s Case, legal practice has, in effect, created its own rewritten versions of the past, for use in modern law. Fiction, or disregard for the truth, has not been unknown to the common law, over its long history, and elements of fiction remain in some parts of Land Law in particular.[40] Gratuitous inclusion of supposedly historical ‘colour’ (perhaps a particular issue in Land Law)[41] and the casual attitude to the Year Book report in this case which is not infrequently seen, do not, however, do anything to uphold the reputation of intellectual rigour of the common law.

What might be done to cure this problem? As an academic legal historian, I would certainly be in favour of a greater place for legal history within the Law School syllabus, as Russell Sandberg suggests,[42] in order to ensure a better grasp of the history of law in general, or else of the widespread use of legal historians as (well-paid) consultants in cases with a historical element, but, more modestly, some improvement in this area might be secured by some instruction for students, judges and advocates in the nature, limitation and appropriate use of older law reports and other legal sources, in order to ensure that these were only used when necessary, and were not used incorrectly. An hour or two with some Year Book translations would do a great deal to make sure that the differences from modern law reports was understood, and there was an appreciation of what lay behind those ‘Y.B.’ citations in footnotes. A class on not being unthinkingly deferential to Coke’s versions of legal events would also be useful. Those who write about law could also be encouraged to to be more honest in their citation practices. It does not seem an unreasonable expectation that those who cite older sources in their published work should either actually have read them, or should make it clear that they have not. Those of us who mark student dissertations expect this level of truth, after all: should legal writing not also live up to this standard? Challenging inaccuracy, and questionable method, is one way in which academics should seek to have an ‘impact’ upon the profession, and, returning to the theme of the SLS conference, if they are prepared to admit their need, one area in which practising lawyers might have something to learn from academic legal historians.[43] There are lessons here for legal historians too, however. Most of us would bridle at the suggestion that legal history is in a ‘comatose state’,[44] but it would probably not be inaccurate to say that, while it is fully conscious, it is not very adept socially, and has tended to remain on the margins of legal academia and wider legal discussion. This, I hope, is changing, but those of us involved in legal history, and medieval legal history in particular, an area seen as something of a niche, technical, ‘geeky’ area, would certainly be well advised to learn to communicate with lawyers and legal academics in a clear, inclusive and engaging way. Talking to strangers at parties: a challenge. Maybe blogs count though?

Gwen Seabourne

August 2024.

[1] It is sometimes assigned the date 1369: see, e.g., Law Commission Consultation Paper No 186, Easements, Covenants and Profits à Prendre, 7.12. For modern references, see, e.g.: M. Dixon, J. Bignell and N. Hopkins (eds), Megarry and Wade the Law of Real Property 10^th edn (London: Sweet and Maxwell, 2024), 31-014; L. Turano, ‘Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conveyancer and Property Lawyer (2000) 377-97, 379; G.L. Newsom, E. Paton, C. H. S Preston, and G. H Newsom, Preston & Newsom Restrictive Covenants Affecting Freehold Land, 11th edn (London: Sweet and Maxwell/Thomson Reuters, 2020), Table of Cases and 1-023.

[2] This was a case concerning a 1922 covenant against certain commercial uses of a piece of land, and whether it prevented a rugby club from developing the land as desired.

[3] at 37, quoting Clauson J, in In Re Ballard’s Conveyance [1937] 1 Ch 473 at 482, who was, in turn, coming at The Prior’s Case through Coke’s account in Spencer’s Case (1585) 5 Co Rep 17 b.

[4] Use of the YB report as authority for the rule that the benefit of a covenant can pass to the covenantee’s successors by annexation to the land, see, e.g.: B. McFarlane, The Structure of Property Law (Oxford: Hart, 2008), 43; K. Gray and S.F. Gray, Elements of Land Law 5^th edn (Oxford, 2008) 3.3.4; Law Commission Consultation Paper No 186, Easements, Covenants and Profits à Prendre, 7.12.

[5] For US discussion, see, e.g., M.J. Festa, ‘Applying a usable past: the use of history in law’, Seton Hall Law Review 38 (2008) 479-554. For criticism of the use of history in modern court proceedings, see, e.g., C. Wide, Protest and the Criminal Law (Westminster: Policy Exchange, 2022). For discussion of meaning and time in the context of legislation see, e.g., M.D. Kelly, ‘Applying laws across time: disentangling the ‘always speaking’ principles’, Oxford Journal of Legal Studies 20 (2024), 1–28. See also P. Goodrich, ‘Poor illiterate reason: history, nationalism and common law’, Social and Legal Studies 1 (1992), 7-28, 17.

[6] M. Wonnacott, Forgotten Land Law (Clark NJ: Talbot Publishing, 2022).

[7] The ‘record’, or ‘official’, government, source, The National Archives, Kew, at CP40/430 m.60 (1368H).

[8] For a translation, see, e.g., H.A. Bigelow, Introduction to the Law of Real Property: Rights in Land (St Paul: West Publishing Co., 1919), 427-9.

[9] E. Sugden (now Lord St Leonards), A Concise and Practical Treatise of the Law of Vendors and Purchasers of Estates 13^th edn (London: H Sweet, 1857) 474-475: ‘The case stands alone, but the grounds upon which it depends have never been explained’; T.A. II, ‘Covenants for title running with Land’, American Law Register 11 (1862-3), 193-211, 257-73, 201. Attention seems to have been greater in the US. For example, O. Wendell Holmes, The Common Law (London: Macmillan, 1881), 395, and Pakenham’s Case is in J. Chipman Gray, Select Cases and Other Authorities on the Law of Property, 2^nd edn, (Cambridge MA: Harvard University Press, 1906-1908) , vol. 2, 357.

[10] G.E. Woodbine, ‘Pakenham’s Case’, Yale Law Journal 38 (1929), 775–81.

[11] A.W.B. Simpson, A History of the Common Law of Contract: the rise of assumpsit (Oxford: Clarendon Press, 1975).

[12] C. Harpum, M. Grant, S. Bridge (eds), Megarry and Wade The Law of Real Property (London, Sweet and Maxwell, 2000) 16-014.

[13] See Woodbine, ‘Pakenham’s Case’.

[14] CP 40/430 m.60; ‘Houses of Austin canons: the priory of Canons Ashby’, in R.M. Serjeantson and W.R.D. Adkins (eds), A History of the County of Northampton: Volume 2 (London: Victoria County History, 1906), 130-133.

[15] See Newsom and Paton, Preston & Newsom Restrictive Covenants 11^th edn, Table of Cases and 1-023.

[16] This version is neither to be found in the Year Book, nor the passage from Coke on Littleton, 385a, nor Smith’s Leading Cases (also cited in Preston and Newsom).

[17] See, e.g., D. Knowles and R. N. Hadcock, Medieval Religious Houses of England and Wales (London, Longman, 1953); ‘Religious Houses: Introduction’, in W. Page (ed.), A History of the County of Suffolk: Volume 2, (London, 1975), 53-56.

[18] The conventional formula showing that the court declined to give judgment at present was employed: see J. Rose, ‘Doctrinal development: legal history, law, and legal theory’, Oxford Journal of Legal Studies, 22 (2002), 323–340, at 328.

[19] The argument based on land holding was that Lawrence was tenant in tail of the land or manor to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this.

[20] We may note that in the Year Book, in Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother. This is interesting in its instinctive effacing of females, but ultimately not crucial to the legal argument.

[21] British Library MS Egerton 3033 sv Hynewyke, unnumbered membrane, ‘Copia cantarie de Pabenham’.

I am left wondering whether the payments were kept up, and also whether part of the background to Lawrence’s dispute with the canons might have been that it was an attempt to obtain an advantage without fulfilling the other side of the bargain. In the circumstances, since Lawrence was not Hugh’s heir, might success for him have resulted in the situation that he obtained an advantage from the canons, while the covenantee’s actual heir(ess) had the obligation to pay the annual sum to the canons? He may also have been attempting to bypass the enforcement/dispute mechanism apparently set up in the composition document. Furthermore, we may also note that, despite suggestions of the irrelevance of the covenantor’s landholding, Canons Ashby priory did in fact have land in Podington/Hinwick): ‘Houses of Austin Canons’. Canons Ashby Priory’s cartulary is MS Egerton 3033 in the British Library. For reference and descriptions, see: G. Baker, History and Antiquities of the County of Northampton 2 vols (London, 1822), II, 10; G.R.C. Davis, Medieval_Cartularies_of_Great_Britain_and_Ireland (revised by C. Breay, J. Harrison and D.M. Smith (London: British Library, 2010), 157.

[22] See, e.g., R.C. Palmer, English Law in the Age of the Black Death, 1348-1381: a transformation of governance and law (Chapel Hill: University of North Carolina Press, 1993), 66-8; T.F.T. Plucknett, Legislation of Edward I (Oxford: Clarendon Press, 1949), 92-92); D.J. Ibbetson, Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 38.

[23] K. Shoemaker, M. Pardon and S. McDougall, “Abortion was a crime”? Three medievalists respond to ‘“English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime”’, The Docket: Law and History Review (2022).

[24] See, e.g., M. George, Antonia Layard, and M. P. Thompson, Thompson’s Modern Land Law 8^th edn (Oxford: Oxford University Press, 2022), 12.3.2; M. Dixon, Modern Land Law 11^thedn (Abingdon, Oxon: Routledge, 2018); A. Nair and J-A. MacKenzie, Textbook on Land Law 19^th edn (Oxford: Oxford University Press, 2023), c. 26; A.M. Francis, Restrictive Covenants and Freehold Land: A Practitioner’s Guide 5^th edn (Lexis/Nexis, 2019).

[25] See, e.g., R. Munday (ed.), Cross and Tapper on Evidence (Oxford: Oxford University Press, 2018), c. 12.

[26] See Goodrich, ‘Poor illiterate reason’, 17.

[27] A. Gillespie and S. Weare, The English Legal System, 9^th edn, (Oxford: Oxford University Press, 2023), 78.

[28] See, e.g., J.H. Baker, Introduction to English Legal History 5th edn (Oxofrd: Oxford University Press, 2019), 188-95.

[29] Woodbine, ‘Pakenham’s Case’, 775.

[30] J. Getzler, ‘Legal history as doctrinal history’, in M.D. Dubber, and C. Tomlins (eds), The Oxford Handbook of Legal History, (Oxford, 2018) 171-92, 185.

[31] F.W. Maitland, ‘Why the history of English law is not written’, in H.A.L. Fisher (ed.), Collected Papers of F.W. Maitland, vol 1 (1911), 480-97, 491: ‘What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.’. See also the comments on Coke’s questionable use of medieval sources.

[32] M. Wonnacott, Forgotten Land Law (Clark NJ: Talbot Publishing, 2022), vii. For an example from a different area of law, see, e.g., R. v. Brown [1994] 1 AC 212, 239E, 262B, 277B, where definitions of mayhem/maim, an offence in existence from the medieval period, is taken from the eighth edition of Hawkins’s Pleas of the Crown, from 1824.

[33] Clauson J, in In Re Ballard’s Conveyance [1937] 1 Ch 473 at 482

[34] 5 Co Rep 17 b. See, similarly, A.E. Randall, ‘Covenants running with the land’, Law Quarterly Review 25 (1909), 280-283, 280.

[35] See, e.g., J.H. Baker, ‘New light on Slade’s Case’, Cambridge Law Journal 29 (1971), 51-67; Getzler, ‘Legal history as doctrinal history’, 185.

[36] Maitland, ‘Why the history of English law is not written’, 491; G. Seabourne, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the Statute of Westminster II c. 34 on dower and adultery’, Legal Studies 34 (2014), 123–42.

[37] In the academic textbook context, this has been commented on by, for example, David Sugarman and Russell Sandberg: Sandberg, Subversive Legal History, 204-205; David Sugarman, ‘Legal theory, the common law mind and the making of the textbook tradition’, in W. Twining (ed) Legal Theory and the Common Law (Oxford: Blackwell, 1986) 26-61, 28, 52.

[38] This work was originally written by Cecil Herbert Sansome Preston and George Harold Newsom, its first edition being in 1939, its most recent, at the time of writing, in 2020. After Preston died in 1940 (see Times, 8^th June, 1940, 4; Times, 17^th June 1941, p. 7., his collaborator, Newsom, published the second to fifth editions. G.H. Newsom was assisted for the sixth and seventh editions by his son, George Lucien Newsom, a barrister at Guildhall Chambers, Bristol, and later a first tier tribunal (property chamber) judge. Newsom junior took over alone for the eighth to tenth editions, and then was joined by a member of his chambers and New College, Oxford, graduate, and later a tribunal judge, Ewan Paton, for the eleventh edition. The personal connections between the authors/editors are emphasised in the introduction to the 2020 edition.

[39] This gives his death as 10^th June, 1400, while records put it at 1399: W. Lack, H.M. Stuchfield and P. Whittemore, The Monumental Brasses of Huntingdonshire (London: Monumental Brass Society, 2012).

[40] Consider, for example, the doctrine of lost modern grant: see, e.g., Thompson’s Modern Land Law 11.6.2.2.

[41] See, e.g., A.L. Brophy, ‘Doing things with legal history: historical analysis in property law’, in Dubber and Tomlins, Oxford Handbook of Legal History, 923-940, 923. Certainly, the scholar of modern Land Law with some knowledge of legal history will notice the lack of reticence at bringing in medieval materials is not confined to ‘law reports’, but includes, for example, references to the treatise known as Bracton, included without necessarily showing a grasp of current legal historical thinking on the nature of this treatise. See, e.g., Rahman v Zaman [2024] EWHC 1290 (Ch) at paragraph 65, and compare T.J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (Oxford: Oxford University Press, 2019), 1-2; P. Brand, ‘The date and authorship of Bracton: a response’, Journal of Legal History 31 (2010) 217, 220–22, 225 and works cited therein.

[42] Russell Sandberg, Subversive Legal History: a manifesto for the future of legal education (Abingdon: Routledge, 2021).

[43] It has been noted in another context that common law courts see old law as their domain, part of their tradition, and may not be willing to take correction from those with expertise in history: S. Erman, and N. Perl-Rosenthal, ‘Historians’ amicus briefs: practice and prospect’, Dubber, and Tomlins, Oxford Handbook of Legal History, Oxford, 2018), 1095-1114, 1102.

[44] Daniel Siemens, ‘Towards a new cultural history of law’, InterDisciplines 2 (2012) 18, 19, noted in Sandberg, Subversive Legal History, 199, which expresses the problem in more informed and measured fashion.

Land Law poetry: ad-VERSE possession?

There is plenty of poetry about land and landscape but, strangely, not so much on your actual Land Law. It is always nice, then, to come across a work of Land-Law-relevance. There is one such piece in the Welsh language newspaper, Y Darian, for 21st February 1918. Yes, in the depths of certain other global events, some people still had time to turn their minds to real property, including a certain T.H. Lewis, Treharris. Well done, T.H.!

The topic of T.H.’s poem was one of interest to those of us in the Wales-meets-Land Law-meets-Legal History Venn diagram intersection: the tŷ unnos or ‘one night house’. Tradition tells us that a person could claim a right somewhat akin to adverse possession by building a house in one night (following certain rules).[i] I claim no expertise in this lore (though it is attractive, isn’t it?) but it certainly has a hold on the Welsh imagination, and is seen from time to time in modern statements about the inaccessibility of housing (e.g. here).

The poem is very much making a contrast between the arrogant, greedy ‘Lords’ and the poor ‘folk’ or peasants. The peasant and his tŷ are on the harsh high ground and the greedy lords lower down in the ease and beauty of the valley (v3, l5), the peasant manages to build his house undetected, and to the surprise of his ‘betters’ (2.7).

The simplicity of the tŷ is stressed, as is its isolation on a mountain: it is a small cottage (v1 l1 bwthyn bach as opposed to tŷ bach …) dark and cell-like (v4 l3). It has no windows, no proper hearth, just a roof, a door and a simple chimney or vent, to allow the smoke out (as required by tradition) (v4 ll.5 -8). The rules of the game are shown to have been followed – it is a house built overnight (v1 l3; v4 l4) quietly (v2 ll.2-4) with peat/turf walls (v2 ll.1-2) and roofed (v2 l8).

It is a demonstration of the need of the common people (v1 l4) and an example of oppression (v1 l5; v3 ll.1-2). The offences of the ‘old arrogant lords’ (hen arglwyddi beilchion y byd) are likened to a poison (gwenwyn) over Wales (v3 ll3-4). The lords feast in their palaces (v3 l5) and doubt the right of the brave folk to even a yard of the bleak mountain land. (v3 ll. 7-8). The poor man is described as inspired by a longing to escape from the grasp of the greedy lords (4.1-2). Yet it is also a hopeful sign – seren gyntaf, the first star of a dark night (before the dawning of more just times) (v1 ll.7-8). And, as if anyone was unaware of the import of all this, T.H. rounds up in verse 5 by making it clear that it isn’t just a cottage on a mountain, but the introduction to a greater chapter (5.3) with the coming of justice and better things heralded by the dawn breaking on the walls of the little tŷ.

Well, that left me properly inspired and ready to take on some injustice. As it happens, I have to move out of my own home shortly, so may have a look for suitable tŷ unnos sites this afternoon …

11/8/2024

Image – stamped with credit: a possible ‘one night house’. For the avoidance of doubt, that is a sheep, not a righteous Welsh peasant. As far as I am aware, sheep have never tried to acquire a home in this way.

[i] For a journalistic introduction, see here. See, also, e.g., A.N. Palmer and E. Owen, A History of Ancient Tenures of Land in North Wales & the Marches (second edn, 1910), 82 (which adds the idea that the builder had to be newly married – how newly, I wonder: possibly less disappointing use of a wedding night than some, eh?) I am sure there are better, more recent things – something to investigate when I have a moment …

Equitable joint tenancy, I presume?

(Modern Land Law post alert. Some readers may be disturbed by graphic scenes of real property disputes).

There may be some points of interest for Land Law students in a Court of Appeal judgment handed down last month: in particular, with regard to co-owned real property beyond the ‘family home’ context.[i]

Williams v Williams [2024] EWCA Civ 42 was about rights in Cefn Coed Farm, near Neath. It was uncontroversial that this had been held at law by a married couple and one of their sons: Lloyd Williams (father, now dead); Catherine Williams (mother); Lloyd Dorian Williams – who were registered as proprietors – as joint tenants. The dispute was about the structure of their holding in equity. There was no express declaration as to how the equitable interest should be held, so were they joint tenants or tenants in common? This mattered, because they needed to know whether or not survivorship had occurred (given that Lloyd Williams was dead).

Given how much attention has been garnered by ‘the big cases’ on co-ownership, Stack v Dowden and [2007] UKHL 17, [2007] 2 AC 432 and Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776, students may be ‘programmed’ to jump in favour of joint tenancy in equity here. Certainly, there are suggestions there that this should be the answer in ‘quasi-matrimonial home’ cases.

Here, though, the judge at first instance went for TICs in equity, and the appeal against this failed. Why? Nugee LJ gave the leading judgment (and the other two judges agreed – to the relief of law students everywhere, who are also cheering the relatively short judgment: this is no Guest v Guest).

Nugee considered just what was said in this context in Stack and Jones. There was Lady Hale’s statement (Stack, 58) that:

“at least in the domestic consumer context, a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved.”

And the approach from a slightly different direction, in Jones, in which Hale and Walker started from the resulting trust v. constructive trust analysis debate. This is not the same as JT v TIC in equity, but the focus on contribution found in the RT analysis does have an affinity with one justification for equity’s preference for a TIC – that unequal contributions make a JT undesirable, or not what we can imagine parties would generally intend.

One strand of argument in Williams was about the applicability of a presumption of equitable joint tenancy, when there was a legal JT, and no express declaration of equitable interests, to a non-‘domestic couple’ context. Nugee noted that some of Lady Hale’s statements did seem to take the presumption of equitable JT beyond the domestic context, but thought that there was a significant difference.

It is useful to be reminded, at 53., that the JT/TIC issue is not simply a matter of intoning ‘equity follows the law’ – there are, as Walker and Hale stated in Jones [19], other reasons for the strong preference for a JT in equity in the ‘couple home’ context. In their words,

‘a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on’,

because

‘If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise.”

The fact that this justification is tied to that particular context means that it needs re-examination for fact situations outside that type of domestic setting and intimate partnership. Here, although Cefn Coed was a place to live, it was very much a farming business. Nugee noted [55] that

‘However close they were as a family, the relationship between Dorian and his parents cannot be equated to that between a married or unmarried couple.’

They were business partners, making decisions, including this property purchase, for commercial reasons. This, then made the trial judge’s decision to prefer the old equitable idea that, in business cases, co-owners don’t intend survivorship, and thus that they will hold as TICs in equity. This is reconciled with the Stack/Jones statements by saying [63] that there is some presumption that the starting point, even in commercially-inflected cases is JTs in equity, but it is not too hard to make out a case for TIC, in those cases (unlike the situation in couple-home cases):

‘Where such property is acquired for business purposes, the Court will very readily assume that survivorship, and hence joint tenancy, was not intended.’

A strong point here is that, while putting property in joint names

‘no doubt … raise[s] a powerful inference that the legal owners were intended to be beneficially interested in the property’’,

the next step, the presumption that this means the equitable interest is held as a JT, is weaker, because the only available structure for a legal title is JT, so no real choice has been made here. ‘In those circumstances, the inference that they thereby intended a beneficial joint tenancy with its right of survivorship rather than a tenancy in common seems to me likely to be in many contexts a much weaker one, and in the case of land bought for business purposes one that is easily and normally displaced by the presumption that such property is intended to be held in common.’

Also worth noting, for students, is the useful explanation, at 49, of why it is not always going to be necessary, in answering a problem question involving co-ownership, to discuss the structural JT/TIC/severance issues:

…[the right of survivorship] is not usually an issue in most cases of the Stack v Dowden type. Most such disputes are disputes between two co-owners who are still alive and whose relationship has broken down, and in such circumstances if there is any possibility of a beneficial joint tenancy one or other of the parties is very likely to be advised to serve a notice to sever any joint tenancy that exists, something that can be done very simply. The dispute will almost always therefore not be about whether they own the property equally as joint tenants or equally as tenants in common, but whether their shares are equal or not.

All in all, a case which does a bit of clarifying of this area, up to a point, and which might be finding a place on my reading list next year.

11/3/2024

Image: some mud. I think it is a safe bet that there would be some mud on the farm in question. Photo by Matt Seymour on Unsplash

[i] No doubt there will be some more considered discussions of this. For early comments, see, e.g., this, which also considers the constructive trust v. resulting trust issue.

Positively charged easements? A few thoughts on Gosling v Bradbury [2023] EWHC 199 (Ch)

TW: modern land law, not legal history …

Still with me? OK. This recent easements case is quite interesting (to those of us who like such things) in its treatment of a slightly involved easement.[i] It takes us into a bit of thinking about classification of easements as positive or negative, and into the issue of ancillary easements/rights. It also hints at a rather intriguing question with regard to accommodation and change from supply of something positive to the dominant land, to allowing the continuance of something potentially negative in effect.

The action took place in rural Worcestershire, near Droitwich. Simplifying the facts to their essentials, there were two adjacent pieces of land, Ford Farm (FF) and Rashwood Lodge (RL). It was claimed on behalf of RL that RL had an easement over FF, to obtain water from a borehole on FF, using an electrical pump, located in a barn on FF. The right to the water was fairly uncontroversial – there was an express grant of such a right, from 1982. The issue concerned the electrical pumping. Bradbury had interrupted the electricity supply to the pump, and this meant that the water was no longer pumped to RL. This only came to the attention of the occupant of RL, Ms Dawe, when her supply dried up, so that she could no longer water her horses. [Note to self, insert picture of sad horse here].

What possible argument did Bradbury of FF have for interrupting the electricity supply? Well, the argument made for this not being contrary to an easement in favour of RL was that, although the easement created in 1982 included a right to receive water from the borehole via pump and pipes, and, indeed, a right to go onto FF to check and maintain the equipment, it did not say anything about a right to a supply of electricity.

The judgments suggest that Bradbury, who had acquired FF recently, was well aware of the existence of an easement, but wanted to ‘take back control’ of the land, stop others coming onto it, and perhaps renegotiate the deal with RL so that it was more along the lines of a licence. If this was the plan, it did not work, however.

The right to have the pump powered by electricity, with wiring and apparatus on FF, was held to be a right ancillary to the explicit easement relating to the water received by means of the pump. There was an attempt to argue that, because an ancillary right could not impose a positive obligation on the servient owner,[ii] Bradbury could not be obliged to pay for and allow the supply of electricity, via apparatus on his land. Essentially, Bradbury was trying to say that the interruption of the current was not a positive interference with a genuine easement, but a cessation of positive action to support a claimed but invalid easement. This did not work. Zacaroli J ruled:

‘28. The ancillary right, as declared to exist in this case by the judge, is defined as the right to enjoy the passage of electricity across [FF], including, the right for [Bradbury] to arrange for the supply of electricity onto [FF], the right to make use of infrastructure already in situ on [FF] or to install their own infrastructure and apparatus, and associated rights of access. These impose no positive obligations on [Bradbury or successors in title], but merely require them to suffer things to be done on Ford Farm. They do not, as [counsel for Bradbury] contended, require the appellants to provide and maintain electric wiring and arrange a supply of electricity.’

I think it is quite interesting for easements in general, because it does show the room for disagreement around positivity and negativity. We tend to treat them as clear and distinct, but are they always? That construction of a requirement ‘to suffer things to be done’ is so beautifully liminal in its positioning between active and passive. Not to mention its biblical resonances. The whole situation was also made a little vaguer by the fact that RL and its occupants had not been asked to pay a share of the electricity for some time, though it was maintained that they would have been willing to pay. This non-demand/non-payment circumstance allowed Bradbury to suggest that FF was being burdened with the cost of the electricity, as well as having to ‘host’ the machinery, cables etc. That, of course, would tend to make it look a little more like a requirement for positive input on the part of the servient owner, and so less like a legitimate easement. If we think about Regency Villas, it would tend to take us into the territory that so concerned Lord Carnwath.

It is worth mentioning a couple of other unsuccessful lines of argument which were run on behalf of Bradbury. First of all, there was an attempt to suggest that the easement was to receive water, and that did not actually require the pump, or the electricity, because water would naturally flow from the borehole onto RL anyway. This was ruled out partly because it was an attempt to introduce a line of argument by the back door on appeal, contrary to general rules on appeals which I won’t discuss here, but mostly because the easement was actually in terms of receiving water through the pump and pipes on FF. The fact that it might be possible to get it in some other way was neither here nor there. Secondly, there was a disallowed argument about the alleged unsafe condition of the water which was coming up from the borehole: apparently it was contaminated by arsenic. This was ruled out of order, again, because it was being brought in in a procedurally inappropriate manner. An interesting potential issue though: what if something which starts off as clearly ‘accommodating’ the dominant tenement turns nasty and damaging? Does ‘accommodation’ cease then, bringing down the whole easement? Not according to Zacaroli J: even if this had been shown, he did not think that the easement ‘fell away’. It was not necessary to get into this in great detail (sadly for Land Law fans!) but he suggested, almost in passing, that it would be particularly unlikely to change our view of whether the easement ‘accommodated’ in these circumstances:

‘37. …I do not need to decide this point, but I doubt that this requirement is intended to impose a further qualitative or quantitative requirement that the right granted in the particular circumstances is one which does in fact provide a benefit. Moreover, if (which is not disputed) there was a benefit to Rashwood Lodge when the water easement was granted in 1982, it is difficult to see why, assuming there are now unacceptable levels of arsenic in the water – the validly granted easement will have for that reason fallen away, particularly if the problem with arsenic in the water is temporary or can be got around.’

Anyway, Bradbury was found to have been in the wrong, and to have interfered with an easement which did bind FF and its owners. And, just in case anyone was still fretting about positivity and negativity, and the fact that the outcome would be likely to be that Bradbury would have to take positive action, Zacaroli reassured us that:

Although an easement does not impose positive obligations on the servient landowner, if the owner of the servient land is found to have wrongly interfered with a negative easement, it may be open to the Court to require it to take some positive action to undo that which it did via its wrongful interference.’

So there we are: positively crystal clear, and without a trace of arsenic; a case about boreholes which is not wholly boring.

15/11/2023

[i] First instance: [2020] EWHC 3906 (Ch) DJ Shorthose.

[ii] True: ‘14. Any ancillary right must itself, however, be capable of subsisting as an easement: William Old International Limited v Arya [2009] EWHC 599 (Ch), per HHJ Pelling QC at §31.’

Image – general suggestion of electrical power: Photo by Frames For Your Heart on Unsplash

Feu[dal] and [not] far [enough] between

I know that there are much bigger issues out there at the moment, and that there are even bigger problems with leasehold itself, but, politicians and journalists covering planned leasehold reforms, can we STOP CALLING LEASEHOLD FEUDAL?!. Accepting (as some historians don’t) that ‘feudal is a useful term, the lease isn’t, and never was. Yes, there were leases in the medieval world being referred to in a vague, flabby, days-of-yore, way, but they just didn’t occupy the same position as they have done in more recent times. ‘Medieval serfdom’ did not involve leases in anything much like the 1925 Law of Property Act s. 1 sense. ‘Capitalist’ is the word you are looking for.

I had high hopes that somebody had had a word, when I saw the Observer headline for the story – OK, they were pushing the ‘antiquated’ line, despite the fact that the worst abuses seem to be relatively modern, but ‘unfair’ is appropriate, but reading on, we have the full package of ‘feudal’ and William the Conqueror. How is this, from that piece, for a bit of not-joined-up history:

This is a form of rentier capitalism that dates back to the 11th century, when the feudal system was enshrined in law by William the Conqueror. Before the Second World War, almost all flats were rented rather than owned. The number of properties owned on a leasehold basis expanded hugely from the 1970s onwards as large houses were broken up into smaller flats and buying flats to live in became commonplace.

Nothing much happened in relation to leases, nor to land tenure, nor property practices in general, between 1066 and 1939 … ???

There is, I suppose, a little more justification for the ‘feudal ground rent clauses’ variation, in spirit, if not in letter, if the idea is that they are within the control of one party, and can be varied, in the manner of medieval villein services (though, even here, a decent medievalist could tell us that, while there might not be much in the way of common law control on services at a very early point, custom did rather a lot to curb arbitrary changes). And, usually, the ‘feudal’ label seems to be attached to leasehold in general, rather than this aspect of it. (Forfeiture is also picked out as having feudal associations at times: again, not terribly accurately).

And yes, it matters – both in terms of history and in terms of the present. In terms of history, it is a classic example of contempt for the people of the past. As others have pointed out with regard to the tedious descriptions of violence or barbarism as ‘medieval’, this chronological ‘othering’ trick is a way to avoid seeing the wrongs and problems of the present. Ludicrous ground rent clauses are not the fault of greedy modern landowners out to exploit those not in a position to refuse, they are all down to medieval legal structures and William the Conqueror. Lazy.

Good to get that out of my system!

5/11/2023

Image – in honour of the date, but also, the state of my head when confronted with another ‘leasehold is feudal’ reference. Photo by Jonas Frey on Unsplash

Judges, character and credibility

We legal historians have occasion to look at an array of different sorts of reports and records of cases, from the terse medieval plea rolls, via Year Books with their play-like format, through the slightly anarchic years of printed reports of varying standard and reliability, to the fuller, somewhat more easily understandable, reports of the nineteenth and twentieth centuries. There have been developments in recent years, however, which will one day need to be considered as part of a full history of the communication of legal decisions, via ‘official record’ and report. I am thinking of the huge expansion of material relating to cases which is now recorded and published in an easily accessible way. I think that it is arguable that the advent of the prepared essay style judgment, published online, has brought with it legal historically important changes,

One development which has impacted upon my professional world is the practice of publishing fuller and fuller judgments. This expansion is very noticeable in my main ‘day job’ legal subject, Land Law. I presume that, in the case of judges at lower levels in the hierarchy, the trend to longer judgments is prompted, at least in part, by a wish to ensure that, should a case be appealed, the lower-level judge would not be accused of having dealt with some point inadequately. Clearly, we are not the main consideration of judges, in their decisions to be more or less verbose, but it is something of a pain for those of us who want to encourage students to read cases (good luck with some of the massive proprietary estoppel ones in particular!).

It is not just length and the problems that presents for law professors and law students which is worthy of note, though: it is what is included. An issue I have mentioned before is that of judicial comment on witnesses, and the practice of judges including in written judgments and putting out into the public domain their views on the witnesses who appear before them. While judges in cases in which they sit alone, and in which there is a need to decide between different versions of the facts, must clearly make a decision as to which witnesses to believe, and should, in order to give a reasoned judgment, state which witnesses they regarded as more accurate, I am not convinced that it is necessary to go further into character assessment, publishing to the world comments on parties and non-party witnesses which might be hurtful, offensive or damaging to the individuals who have given evidence, and may well (I imagine) not have been expecting this sort of material to be disseminated.

Yesterday, I was reading a particularly interesting example of the genre: Gilpin v Legg [2017] EWHC 3220 (Ch). In this case, which concerned leases, licences and beach huts, the judge (HHJ Paul Matthews, sitting as a Judge of the High Court, in Bristol) commented in the following way, on various witnesses:

The father of a claimant was a ‘careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.’ (7)

A male claimant (a doctor) was ‘a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.’ (8)

A female claimant was ‘a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light.’ (9)

Another male claimant ‘gave clear and straightforward evidence, and was obviously trying to assist the court.’ (10)

A male defendant was ‘an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful.’ (11)

A male solicitor (the defendant’s litigation solicitor) ‘was a professional but slightly excitable, even enthusiastic witness.’ (12).

Another witness was ‘an elderly lady’. (13)

Though there was a need to express a view on the parties’ evidence, I am not sure that anyone needed the comments about a defendant’s ‘feistiness’ or why he might have adopted an ‘aggressive tone’ at some point’ or a claimant’s ‘prickliness’. I have to say that I would be fairly nervous – and quite possibly ‘prickly’ – if I had to speak in court, and knew that comments about me were going to be published in this way. And I am not sure that the ‘elderly’ or ‘excitable’ comments, in particular, were at all useful.

It does not seem to me that this sort of material helps anyone involved in modern legal practice, or that proper transparency and reasoning requires it. Of course, I am not just thinking about the present, and whether this is a good way of handling the assessment of credibility. There are legal history angles! The inclusion of this sort of material makes for an interesting comparison/contrast with some of the early reports of medieval common law cases, in which there are personal comments, but these relate to serjeants pleading before the Common Pleas or King’s Bench, rather than witnesses or parties. I do wonder what legal historians of the future will make of this sort of commentary. It does strike me that they might find it interesting to survey this sort of comment, cross-matching with characteristics of the commenting judge, and such matters as gender, age and professional status of the witnesses being subjected to these published assessments. They might well conclude that early 21^st century judges were – in the formulaic incantation – ‘doing their best to assist’ legal historical scholarship.

4/11/2023

Image – I am going with ‘prickly’ …. Photo by Klara Kulikova on Unsplash

Hedge funds and attempted enclosures: Darwall v. Dartmoor National Park Authority and another [2023] EWCA Civ 927

The CA judgment in Darwall is out. I will confess that I thought it would go the other way – not because natural pessimism led me to expect things to turn out in the way opposite to my preference, but just because, given that changes to the extent of access to the countryside have become part of the likely programmes of political parties, it seemed as if it might be a plausible choice for the CA to say ‘this is one for Parliament to sort out, not us’. Got that one wrong.

Anyway, no doubt I will revisit this, and may update/beef up as I wade through the CA livestream, but it seems worth noting a few immediate thoughts. So –

What is it about?

Alexander and Diana Darwall sought a declaration that people had no right to ‘wild camp’ on Dartmoor, where they owned (a lot of) land. ‘Wild camping’, is, helpfully, defined for us by Underhill LJ as:

a modish phrase which I understand to mean camping overnight in a place which is not a dedicated campsite

There had been an idea that there was such a right in the National Park there, even though there was not generally such a right in England. In the High Court, (: [2023] EWHC 35 (Ch)) Darwall won, and the relevant National Park authority appealed.

Why is it interesting?

Well, it is a fight on the borderline of the extent of a landowner’s power to exclude and the right of the public to obtain access to England’s wild places.

Essentially, it was uncontroversial that the public had access to the National Park for purposes of (for example) walking – so there were definitely some limits to the Darwalls’ rights as landowners, but was wild camping (i.e. camping other than at a designated site, with permission) allowed as well, or not? In the High Court, a judge (Flaux J) had said no. The CA (Vos MR, Underhill and Newey LJJ) however, were convinced that that was incorrect:

‘57. I, therefore, conclude that the grant to the public of “a right of access to the [Dartmoor Commons] on foot and on horseback for the purpose of open-air recreation” does allow members of the public to rest and sleep, whether by day or by night, whether on the ground or in a tent. I do not think that the use of the word “open-air” means that a tent cannot be used for the necessary incidents of walking …’ [Vos]

Despite being about pretty big principles, the CA case was argued on the less-swashbuckling territory of construction of certain legislation specific to Dartmoor itself, and particularly the following words: “the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation” – Dartmoor Commons Act 1985 s. 10(1).

What not-entirely-legally-relevant hares has it set off running in my head?

I thank myself for asking. Well I do I find it rather interesting that there is considerable variation, in the judgments and in newspaper coverage, in the way in which the Darwalls are described. They are ‘farmers, landowners and commoners’ in one place [H Ct 4; CA, 33], which gives a certain spin to things to most people, I would imagine. Farmers – well, they are often treated as a bit special in Land Law, aren’t they (see various proprietary estoppel cases which seem to view farmers and their ways as not like other people, even if they are running rather large concerns in a business-oriented way)? And ‘commoners’ sounds very rustic and old world. Not quite how things are here – as various journalistic sources tell us, Alexander Darwall is not a life-long tiller of the soil, herder of beasts etc., but somebody who was primarily a hedge fund manager, acquiring land in the National Park relatively recently, and using it for, amongst other things, pheasant shooting and deer stalking (see, e.g. the Guardian , which also notes certain political activities).

I also rather enjoyed some of the gymnastics involved in trying to argue that camping was, or was not ‘open air recreation’ (either because canvas meant it was not ‘open air’ or because recreation had to be something physically active and could not be stationary) (see e.g. CA at 55).

Almost finally, one thing which often strikes me as worthy of further study, though I have not made a thorough-enough study of it to say much about it, is the judicial performance of emotion. Expressions of ‘real sympathy’ for the landowners at 72 (CA, Underhill LJ) – what do we think? In a judgment which otherwise seems to be at pains to keep to the statutory construction task, that choice did stand out to me as interesting.

Actually finally, and despite his being on ‘the wrong side’, I do have to award a special gold star for creativity to Timothy Morshead KC, who is reported to have made an allusion to a famous poem by Keats, relating to those ‘long in city pent’, which, although it does mention not being in motion at all times, seems to describe access to the countryside on a day basis, rather than camping, neatly supporting his clients’ case (H Ct, 40).

A good one for a Land Law reading list?

Yes – clearly an important area, and something which is ripe for a bit of debate about the limits of rights in and to land. Also shows that fights about pretty fundamental principles can be tied up in painstakingly detailed analysis of the wording of statutes, so rams home the Land Law lecturer’s favourite instruction: you need to be precise! Also –it weighs in at a mere 20 pages: see, proprietary estoppel case judges – you don’t actually have to get into 3 figures…

5/8/2023

Photo by serena saponaro on Unsplash

Vampire Property Law: fiend simple absolute in possession?

[This is an updated version of something I wrote in 2021, on vampires and property law]

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points (!) in relation to the Undead and their interactions with systems of property.

(Vampires outside a house …)

Can I come in?

Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries makes great play of this, and there are certainly resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring – actually played by the bonehead boyfriend from another jurisprudential classic, Legally Blonde) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. s.2 ep. 18 went totally for the Venn diagram overlap between vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her then paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

There is more right-of-entry-related fun in later series. Season 7, for example, goes for it in a big way. In episode 2, Lily, vampire mother of Stefan and Damon Salvatore, during an evil phase, keeps her sons out of the house by signing it over to a compelled Matt Donovan (a rather dim human) and making him refuse them entry. Thrillingly, there is talk of land registration (be still my apparently not undead beating heart)! And also a nugget on the workings of the whole thing – apparently if human Matt were killed and then brought back to life, that would simply ‘open the door’ – so, the seals would not go back up when he returned from the dead. [Issues of property entitlements, succession and return from the dead could, frankly, be fleshed out rather more …] Another human registered proprietor for the Salvatore house (for the same reason as Matt) is the compelled cleaner, Lucy (season 7 ep. 6). [I do wonder how to categorise the interests of Lily’s family in the house – un-life tenants?] Another house which features some property-based refusal of entry issues is the place Bonnie Bennett bought to keep drippy Elena’s coma-coffin, and wanted to use as a love nest for herself and dodgily accented vampire Enzo. In s. 8 ep. 11, Stefan (in an evil phase – keep up!) somehow managed to have title transferred away from Bonnie, thus allowing him to get in, shutting Enzo out and leaving the latter vulnerable to slaughter. I don’t claim any knowledge at all of the property law of New York, so don’t really understand how it is that the realtor has the ability to assume title of the property, but that is what happens (she is, of course, compelled – interesting to wonder how vampire compulsion could be brought up in a property dispute …)

Good stuff, but still so much that we need to know, e.g. …

To which buildings does the rule apply?

The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8 (or equivalent in your jurisdiction).
And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Can we have a little more detail on the right to invite?

Is legal title required before a person has the right to invite?
Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.)
What about houses subject to a mortgage? Or a long leasehold? Could a vampire move in to one house and acquire an easement to enter neighbouring properties? How would a licence for vampire entry work with s. 62 of the Law of Property Act on reconveyance? So many unanswered questions …
Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
Can conditions be placed upon an invitation?

Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 2 of the Land Registration Act? It doesn’t specifically say that life is required …
What happens if a vampire is granted a life interest in land?
Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date? And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

(Vampires clearly inside a house …)

There’s just so much we need to know, isn’t there? And very oddly, there is not much in the way of existing scholarship.[i] Too much other stuff to do at the moment, but, like the undead, my article on Vampire Property Law for the Mystic Falls Law Review is a project which will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

11/3/2021

updated 20/1/2022

(Main Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing. Don’t get me started on ‘mortmain’ …)

[Later thought – on the basis of this case – surely there is scope for a bit of vampiring up of the legal/property aspects of cryptocurrency such as Bitcoin …. Yes, need to get out more …]

[i] Honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2).

Bracton's Sister

Legal History research site of Gwen Seabourne