Common law rules about rent – where do they come from?

There is a general rule in landlord and tenant law that rent is payable in arrears rather than in advance.

This is under the ‘common law’ – which generally means that it is something that has always happened, or has happened for a very long time.

Common law rules are often difficult for non lawyers to get their heads around, as they are not written down anywhere in the way that statute law is. They are just Things That We All Know.

I am challenged

For example in my free e course for landlords, I mentioned the ‘rent payable in arrears’ rule in my article but was challenged by a reader. What was my authority, he demanded?

A tricky one. I knew I was right, but a quick look through my landlord and tenant books did not help much. Time for the ultimate fallback – a request for information via twitter.

I take to twitter

There are several L&T barristers on twitter -

@cjr1968 (Catherine Rowlands) referred me to the case of London and Westminster Loan Co. v London and Northern Western Railway [1893] going on to say “Don’t think there’s a case that specifically states the rule but it is right. It’s implicit in a lot of cases”

@justinbates said “Rent is payable in arrears unless otherwise agreed: Woodfall, 7.063, citing Coomber v Howard(1845)10 QB 785” at which @cjr1968 said “Don’t think it’s explicit in Coomber but clearly Woodfall agrees”

I have had a quick look at the cases, most of which are from the nineteenth century with some even earlier,  and from what I have seen, they do not specifically say ‘rent is payable in arrears unless it is agreed that it is payable in advance’.

However the cases make a lot more sense if you read them with that understanding.

Corroboration?

This ‘rent normally payable in arrears’ principle is probably also the background to the infuriating rule which benefit offices used to have (and some may still have), of refusing to accept as being in arrears, rent which the tenancy agreement says is payable in advance.

This was particularly annoying for landlords who wanted the benefit office to pay to them direct when the tenant was in arrears of 8 weeks or more. Hopefully this practice will have ceased after the case of Doncaster v Coventry City Council, but this old rule must undoubtedly have been at the back of it.

Time immemorial …

So there you are gentle reader – much of the law relating to how we do things is common law and is there because things have always been done that way.  Rather than because the XYZ Act says so.

I have tried to shine a light on the specific rule about payment of rent, but the real source is shrouded in history, and could well go back to before the conquest.

To read more about the common law, see my blog post here.  Thanks to Catherine and Justin for their twitter help!

Afterthought – and the answer?

Just had a quick word with my husband Graeme about this, and he suggested that it went back to the old quarter days.  Tenants would pay their landlords their feudal dues then and as they were often crops rather than money, they would have to be paid in arrears – ie after they had grown them.

Sounds sensible to me – what do you think?