Two brothers were in partneship in unequal shares, but acquired a property for use by the business which they held in equal shares. They agreed a parol yearly tenancy between themselves as owners and as partners. After one died his son took over his father’s shares, but fell out with his uncle who now sought possession of the property under the lease.
Held: The lease would have been valid but for the prohibition against the conveyance of property by persons to themselves. The section in the 1925 Act relaxed that prohibition only to a limited extent as was allowed by a literal reading. The son occupied his room on the basis of his interest in the freehold. The lease was not valid so as to allow possession to be ordered against him. The destruction of a tenancy when it is surrendered reflects the principle that a person cannot at the same time be both landlord and tenant of the same premises. ‘Nemo potest esse tenens et dominus’: two individuals cannot grant a lease to themselves.
Lord Denning: ‘I have come to the clear opinion that even under the 1925 Act a person cannot grant a tenancy to himself: for the simple reason that every tenancy is based upon an agreement between two persons and contains covenants expressed or implied by the one person with the other. Now, if a man cannot agree with himself and cannot covenant with himself, I do not see how he can grant a tenancy to himself. Is the tenancy to be good and the covenants bad? I do not think so. The one transaction cannot be split up in that way. The tenancy must stand or fall with the agreement on which it is founded and with the covenants contained in it: and as they fall, so does the tenancy. And what about a notice to quit? If A grants a tenancy to himself A, can he mutter a notice to quit to himself and expect the law to take any notice of it? . . . The truth is that they cannot grant a tenancy to themselves.’
Lord Radcliffe: ‘He could, of course, put land in trust for himself by conveying it to a nominee, and, I suppose, if there was any conceivable point in the operation, he could similarly demise land to a nominee.’
References: [1962] AC 496, [1962] 1 All ER 146
Judges: Lord Denning, Lord Radcliffe
Statutes: Law of Property Act 1925 72(3)
Jurisdiction: England and Wales
This case cites:
- Cited – Greyv Ellison 1856
A policy of insurance was created in which one department of an insurance company purported to effect a contract with another department of the same company. Although different individuals were parties to the contract, they all contracted as agents . .
((1856) 1 Giff 438, 65 ER 990)
This case is cited by:
- Cited – Barrett and others v Morgan HL 27-Jan-2000
The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual . .
(Times 28-Jan-00, Gazette 10-Feb-00, , , [2000] 2 WLR 285, [2000] UKHL 1, [2000] 2 AC 264, [2000] 1 All ER 481) - Cited – Ingram and Another v Inland Revenue Commissioners ChD 23-May-1995
Lady Ingram had first conveyed properties to her solicitor who on the next day let the properties back to her, and on the day after conveyed the freehold of the properties to her family.
Held: The leases in favour of Lady Ingram, having been . .
(Times 23-May-95, Gazette 14-Jun-95, Ind Summary 05-Jun-95, [1995] 4 All ER 334) - Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
(Times 11-Sep-97, Gazette 10-Sep-97, , [1997] EWCA Civ 2212, [1997] 4 All ER 395, [1997] STC 1234) - Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998
To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
Held: The lease-back by the nominee was not void as . .
(, , [1998] UKHL 47, [2001] AC 293, [[1999] 1 All ER 297, [1999] 2 WLR 90, (1999) STC 37)
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.190571
