inut dipead on privity of estate. I myself conceive it impossible to conceive of a relationship of landlord mad tent which has not got that element of tenure in it, and that implies that the tenant holds of his
landlord, and he can only do that if the landlord
has a reversion. You cannot have a purely contractual tenure. Tenure exists by reason of privity of estate.
and consequently that a purported underlease for a term greater than the residue of the principal tenant's own terms operates as an assignment of his term, and not as an underlease:
Redman 16th Edition para. 105.
Hill v.
But because the Crown grants as prerogative possessor and not as tenant, the principle does not in strict law apply, an.) therefore the particular undesirable consequences to which
Mr. Thornton referred (inability to enforce covenants, etc.) will
not apply either.
I must caution however that although the above is
my opinion, which I am confident is correct, nevertheless there is absolutely no legal authority directly on the point or on any
analagous case so far as I am aware. Consequently the matter cannot be said to be so clear that it would not be challenged in the Courts; it might well be. Even more likely however is that were the such leases to be publicised, the matter would be debated (ad nauseam! ) in learned journals, thereby coming to the attention of lawyers generally, and leading to commercial uncertainty.
I agree therefore with Mr. Thornton that leases beyond 1997 cannot safely be granted but for a different reason.
In my opinion, for the reasons given in Section I above, as the Crown's claim to jurisdiction is limited in time it prevents such leases being lawfully granted before enabling legislation is passed in the
U.K.