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What is reasonable in property law and practice?
The case of Dong Bang Minerva (UK) v Davina [1996] must be the greatest name of a legal case ever – #LPC examiners have been able to accept “Ding Dong” as an abbreviation, with even one generous examiner, it is rumoured, able to give a mark for “Ding Dong Bang” from a student in the ‘heat of the moment’.
What is more amusing is what the definition of ‘reasonable fees’ might be, referred to here in the judgement delivered in the Chancery Division of the High Court:
“The tone of this letter clearly offended Mr Bharat Amin. The material part of his reply dated 26th August 1993 was:
“I strongly object to your statement that our fees are unreasonable. The fees are based on estimated time and quality of professional services — lease, rent etc. The make up of the fees is as follows:..”
And in fact the Court of Appeal judgement is equally amusing for similar reasons.
“Held, dismissing the appeal, that although it might be acceptable for a landlord to require an undertaking as to his reasonable costs before consenting to an underlease, in the instant case the estimated fees were unreasonable and the landlord was in breach of its statutory duty.”
Anyway, according to this case it is felt that the landlord bears the onus of proof and must show that the time within which consent was given or response provided was reasonable; that any condition attached to consent was reasonable and if consent was refused it was reasonable not to give consent. If the landlord fails to discharge its obligation a claim may be brought for breach of statutory duty and the landlord may be liable in damages. What is considered a reasonable time depends on the facts of each case but generally is measured in days or weeks, not months (Go West Ltd v Spigarolo [2003] EWCA Civ 17).
s.1 Landlord and Tenant Act [1998] applies to all leases and to all forms of alienation. Where a tenant applies to the landlord in writing for consent to assign or sublet, s.1 LTA provides that the landlord must given written consent within a reasonable time. In the “Dong Bang” case, it was considered that 28 days from receipt of the notice of the application and references by the landlord was a reasonable period within which to inform the tenant of the decision.
Meanwhile, the effect of s.19(1)(a) Landlord and Tenant Act [1927] has no effect on absolute covenants prohibiting alienation. It, however, assists tenants by converting a qualified covenant against alienation into a fully qualified covenant. What is the definition of reasonableness of the landlord in withholding consent here? A number of interesting cases have allowed greater clarity of the statute.
International Drilling Fluids v Louisville Investments (Uxbridge) [1986] provides that a landlord is not entitled to refuse his consent on grounds which have nothing to do with the landlord and tenant relationship. It must be something to do with, for example, the proposed assignee’s ability to pay rent, or bad references. Yet again, it is quite amusing how the principle of legal precedent might have inflicted this dictum on that court:
“(2) As a corollary to the first proposition, a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject-matter of the lease (see Houlder Bros & Co Ltd v Gibbs (supra), a decision which (despite some criticism) is binding on this court; Bickel v Duke of Westminster[1977] QB 517).”
Moss Bros Group plc v CSC Properties Ltd [1999] provides that a landlord is reasonable in refusing consent if the proposed assignee’s business does not fit in with the landlord’s tenant-mix policy. A report by the CISCexplains why “tenant mix” is so important as follows: “The variety and location of retailers within a group of shops, known as tenant mix , has been identified as a critical factor in the success or failure of purpose-built shopping centres. There have been numerous studies made of the impact tenant mix can have on profitability, but less is known about the way in which landlord investors approach the allocation of leases within shopping centres. This study aims to increase understanding of how they perceive and manage tenant mix.”
In Ashworth Frazer Ltd v Gloucester City Council[2002], the House of Lords confirmed that where a landlord believed the a proposed assignee intended to use the premises for a purpose which would give rise to a breach of covenant, it was reasonable for the landlord to refuse consent to assign. Quoted in that judgment is a critical passage in the judgment of Stamp LJ then follows, from the decision of the Court of Appeal in Killick v Second Covent Garden Property Co Ltd [1973] 1 WLR 658, and one which, again, that present Court felt bound by:
“Mr. Priday, on behalf of the landlords, submitted that a landlord may reasonably refuse consent to an assignment if the assignment would necessarily involve a breach of covenant, and I will accept that submission as being well founded. But whatever view one takes as to the construction of the user covenant, I cannot accept that, if the landlords did consent to the proposed assignments, there would as a necessary consequence be a breach of the user covenant. As a result of the assignments Primaplex would step into the shoes of the lessee and underlessee and would thereupon become subject to the user covenant. The landlords would be in the same position, neither better nor worse, to enforce the user covenant as would be the case if the present underlessee was itself proposing to seek planning permission for use of the premises as offices and proposed so to use them. On that short ground I would hold that the landlords’ withholding of consent is unreasonable.”
There is a further statutory intervention in s.19(2) Landlord and Covenant Act (1927) which implies into a qualified covenant against improvements a proviso that the landlord’s consent is not to be unreasonably withheld. Lambert v FW Woolworth [1938] provides the leading case about what constitutes ‘improvements’, and they are generally construed widely as works which improve the property from the tenant’s perspective. Compared with the interpretation of “unreasonable” in the context of s.19(1)(a), there is less case law, but s.19(2) allows the landlord to require as a condition of giving consent, payment of compensation for a loss in value to the reversion caused by the alterations, reinstatement of the premises, and payment of the landlord’s expenses in giving consent. The case facts were so well known that even LJ Slessler seemed bored with them…
“The facts of this case have been so often stated during the protracted litigation which has taken place between the parties that I do not think it necessary in any detail again to repeat them.”
What is reasonable? by Prof Gary Slapper, Global Professor at New York University, and Director of New York University London
What is “reasonable conversation” I wonder? This is a tweet I received from a new follower, @GeorgiaHD, a law student, this morning.
This article first appeared in the “THE LAW EXPLORED” series published in the Times, and is copyright of Prof Gary Slapper (@garyslapper) and reproduced here by kind permission of Gary.
What does ‘reasonable’ mean?
It is quite common between work colleagues, cohabitants, and members of organisations for one person to adopt the stance: ‘be reasonable: do things my way’. Being reasonable can mean different things to different people.
Reasonableness abounds in law. There are more appearances of the word “reasonable” in the law library’s case reports and statues than there are grains of salt in the entire food stock of a supermarket. Rules are lavishly seasoned with reason. A virtue of salt as a condiment is that is can enhance different natural flavours without changing their essence, and, similarly, “reasonableness” can help define the clarity of all sorts of rules in such phrases as “within a reasonable time” or “without reasonable excuse”.
In fact, more cases have hinged upon the meaning of the word “reasonable” than any other. Where did it spring from, and can it be defined?
In an early Latin form, the word appears in the first great treatise on English law produced in 1189 and ascribed to Ranulf de Glanville, the chief justiciar of England. In answer to the question of when a mortgage debt should be paid in the absence of an express agreement, Glanville launched a thousand years of conjecture and courtroom quibbling by answering: rationabile terminum, a reasonable time.
In 1215, the Magna Carta spoke of rationabile auxilium a reasonable aid, in an attempt to put a limit on the level of tax a king or lord might levy to help him with the expenses of knighting his eldest son, marrying off his eldest daughter or paying ransom. Defining what is meant by “reasonable” has foxed the best lawyers and philosophers, and many today accept the scepticism of Lord Goddard who said in 1953 “I have never yet heard any court give a real definition of what is a ‘reasonable doubt'”.
One approach is to say simply that everyone knows what is meant by “reasonable” and it can’t be given a flip formula. In a criminal case, a jury can convict someone if they are sure “beyond a reasonable doubt” that he is guilty. In a case in 2005 in London, the jury asked Judge Campbell “What is the definition of “reasonable doubt?”. They asked whether, if they were 90% certain, that was enough to stop the doubt being “reasonable”. He replied saying professors had been discussing that question for many centuries “but it is not a philosophical matter, it is common sense…so do not get bogged down in 90%s and in interesting academic discussions about reasonable doubt, just say: ‘We are sure’ or ‘We are not sure’”
In some areas of law what is reasonable is determined by referring to the standards of “the reasonable man”. There has never been any reference in law to a reasonable woman (in a fictitious 1935 case, A P Herbert noted that “at common law a reasonable woman does not exist”), although these days the courts usually refer to a “reasonable person”. The reasonable person, though, is really just an imaginary, composite character. So, the courts have tended to use stereotypes to help. The most famous example – because he entered the law reports in thousands of cases – was the invention of reasonableness incarnate: “the man on the Clapham omnibus”. In today’s language it would be “the person on the Virgin train”. The inventor of the Clapham omnibus phrase is commonly identified as Lord Bowen (as advocate Charles Bowen in 1871) but a very similar phrase first appears in a Walter Bagehot book published in 1867 in a reference to who shapes public opinion.
The older judicial characterisations of a ‘reasonable person’ are products of their age, so they are about property-owning, middle-class men. Those, however, used to be qualifications needed for many things, like voting and being on a jury. In 1933, Lord Justice Greer said the personification of reasonableness was “the man who takes the magazines at home, and in the evenings pushes the lawn mower in his shirt sleeves.”
Today’s multicultural democracy is a more civilised society, less burdened with bigotry. Reasonableness lives equally in a thousand different lifestyles. So it is more difficult today to finish the sentence that begins “a reasonable person is someone who…” In the word “reasonableness” is distilled the essence of society’s core values at any given time. Reasonableness also changes its shade of meaning over time. So, what amounts to “reasonable chastisement” of a child has progressed from a time when this included beating him or her senseless with a rod.
Reasonableness can’t be defined by reference to any given set of values or beliefs. One key feature of it is a certain open-mindedness. But not too open. As Groucho Marx observed “Now there’s a man with an open mind – you can feel the breeze from here!”
Prof Gary Slapper is Global Professor at New York University, and Director of NYU London, and Door Tenant at 36 Bedford Row, the Chambers of Frances Oldham QC He is a columnist in The Times law section.
