Common law and statue

Foundations of landlord and tenant law  – Part 8

In the beginning, there was the common law.

As discussed in the post on Equity and Law, and also this post on the common law here, it has developed over many years and is largely based on the decisions of Judges as recorded in the law reports.

Separate to this was the development of Parliament, which eventually became the law-making machine it is today. It took quite a long time.

How it all started

Initially, way back in early medieval times and before, enactments and case law were not considered to be essentially different in the way that they are now.

They both came from the royal councils that advised the King, and the King had the ultimate authority. He could both make a law and decide a legal case.

Probably the first proper ‘statute’ was the Magna Carta in 1225, although for a couple of hundred years afterwards, it was still all bit muddly.

However, in 1407 Henry IV recognised that the proper way to make laws was for the lords and the commons to debate things in their separate houses. Only after they had reached agreement should the matter then be submitted to the King for his consent. This is more or less how it has been done ever since.

As, in theory, the common law covers everything.  What an act of Parliament does is change the common law, in some specific way. For example to make the law fairer (in the eyes of the government of the time), or to clarify or codify it.

However, people often think that acts of Parliament are the only type of law. Which is quite wrong, as we have seen.

Common law – the coral atoll analogy

People get very confused about the common law. Many people expect everything which constitutes ‘the law’ to be written down in a list somewhere, or think that if something is not covered by an Act of Parliament then there is no law at all about it.

In many ways, statute law is easier as you can look it up and read it (always assuming of course that you can understand what it says!).

The important common law rules though are only to be found in the decisions of thousands of Judges over the centuries. The decisions pile up one on another, like leaves on the forest floor, or like the homes of those thousands of tiny sea creatures which create a coral atoll.

Many of the older cases are now lost in the mists of time, but (like the early coral growth on the atoll), they underlie and support the more recent ones.

They are all important, and even today occasionally Judges will look back to some of those early cases.

The way we lawyers (and trainee lawyers) generally find out about them is through legal textbooks, articles in law journals, and increasingly, online resources, most of which are written by either academic lawyers or practising solicitors or barristers.

The spread of common law

Incidentally, it is called the ‘common law’, because, in medieval times, it applied to or was ‘common’ to all the courts in England.

(Although, somewhat confusingly, the law from the Kings Courts is also sometimes referred to as the ‘common law’ as opposed to the law used in the Court of Chancery.)

The ‘common law’ system based on case law and precedent was then exported to the countries which formed the British Empire which is why many countries today have a common law system.  As opposed to those whose legal system is based on a civil code.

Common law for leases

The basic rules which govern how leases ‘work’ are mostly common law ones and have been developed over the centuries. For example, the rights of tenants to ‘quiet enjoyment’ discussed in the last post.

In fact, the case, of Street v. Mountford discussed there, which is the authority for the rule that one of the main features of a tenancy is ‘exclusive occupation’, is a prime example of how Judges make (or ‘clarify’) the law.

Other common law rules which apply to all leases (unless specifically excluded or amended by statute or the terms of the lease) include forfeiture, a procedure which allows a landlord to end a lease immediately if the tenant breaches the terms of the lease, and the rules regarding the notice periods for ‘periodic’ tenancies.

So in a sense, all leases are the same. They all involve a landlord and a tenant/lessee paying rent for a term, with the tenants having the benefit of the covenant of quiet enjoyment.

Different leases, different codes

However, as we all know, there are in fact vastly different types of lease. The reason for this is the different statutory codes which have been created for different types of leases and which change the underlying common law in various ways for the leases which fall within the boundaries set by the different acts.

There are quite a few different codes but basically three different types of lease:

• Business / commercial leases, for example for shops and offices
• Agricultural leases, for agricultural land and accommodation for agricultural workers, and
• Residential Leases.

As this foundation series is being written to help those involved in short let’s understand the legal background, I am not going to be discussing business and agricultural leases in any detail. Other than to say that they exist, and are based on the same common law foundation as residential leases.

So far as residential leases are concerned, there are two types. Long leases and their considerably shorter cousin, tenancies. We will be looking at some of the differences between the two in thenext post.

Medieval parliament picture is Wikipedia commons, Tonga Island picture from clr–flickr