THE LIl\IITATIOK OF A TERl\;1 OF YEAltS

In Lace v. Chantler ([1944] 1 K.B. 368) the Court of Appeal gave an

important decision on the la,v governing the lnethod by which the
duration of a term of years may be fixed. A dwelling-house was let
for the duration of the ","ar at a weekly rent, and the Court held that
the agreement was ineffective, on the ground that at the time when
the lease took effect the term was uncertain. Consequently the
relationship between the parties had to be ascertained, not on the
basis of the agreement, but on the basis that the tenant was in occupation
and paying a weekly rent, so that she held a weekly tenancy.
Lord Greene l\!£.R. who delivered the principal judgment did not
cite the authorities on this matter but quoted a passage in Foa's
"Landlord and Tenant" (6th ed., p. 115) which he regarded as
correctly stating the law:-
"The habendum in a lease must point out the period during which the enjoyment
of the premises is to be had; so that the duration, as well as the commencement
of the term must be stated. The certainty of a lease as to its continuance must be
ascertainable either by the express limitation of the parties at the time the lease
is made, or by reference to some collateral act which may, with equal certainty,
measure the continuance of it, otherwise it is void. If the term be fixed by reference
to some collateral matter, such matter must either be itself certain (e.g. a demise
to hold for' as many years as .A.. has in the manor of B.'), or capable before the lease
takes effect of being rendered so (e.g. for' as many years as C. shall name '). Con-
sequently, a lease to endure for' as many years as A. shall live,' or ' as the coverture
between B. and C. shall continue,' would not be good as a lease for years, although
the same results may be achieved in another way by making the demise for a fixed
number (ninety-nine for instance) of years determinable upon A.'s death, or the
dissolution of the coverture between B. and C."
The broad principle established by this decision would appear
to be that a term of years must be limited as to its duration in such a
manner that at the tinle when the lease takes effect the parties must
know how many years, months, weeks, or days it will continue: that
is to say, its duration must be fixed by provision that can be related
to the calendar and cannot be fixed bv reference to some eyent the date
of occurrence of which cannot be fo;eseen.
The purpose of this article is to suggest firstly that the rule laid
do,vn is not a good rule, and secondly that the authorities on the point,
although they favour the decision actually made, are not such as
absolutely to constrain a superior Court to decide thus.
Terms of years ,vere originally recognised only as eontraets, and
throughout their history the Courts have recognised the strong con-
tractual elenlent in them and have allowed parties considerable latitude
in defining the terms on ,vhich the tenancy may exist. As Lord
I{enyon, C.J., said in Goodwright v. Richardson (3 T.R. 463) ,- In these
eases the intention of the parties ought to prevail if it be not contrary
to law." If parties find it convenient to create a tenancy the precise
duration of which cannot be forecast, the law should not frustrate
their intention qn]ess general considerations of policy stand in the way.
,80 The University o.f Queensland Law Journal

In the case of leases to terminate on an event of uneertain date, no

such considerations operate, and in fact, by the use of appropriate
words, such leases can legally be created. Thus, if the parties in Lace
v. Chantler had agreed to a lease " for 99 years if the w~r shall so long
last," their intention would have been carried into legal effect. In
this case the agreement failed because of what was no more than a
legal technicality. .A. technical rule having this effect is not, it is sub-
mitted, a good rule to maintain. If it is \\rell established it should be
altered by statute.
In the second place, it is submitted, the maintenance of such a rule
is not required by the broad principles of the existing law of real property
and chattels real. The common law recognises two main classes of
estates in land-freehold estates, the duration of which is measured
by a life or lives or series of lives, and estates of a chattel quality, the
duration of which is measured otherwise than bv reference to a life
or lives or series of lives. The largest estate recogitised at common law
is the fee simple, and no other estate can be created which cannot be
created out of a fee simple. It is true that the law presumes that a fee
simple will last for ever (Challis on " Real Property," 3rd ed., p. 220),
but in fact it recognises that it may not; and consequently a perpetual
interest cannot be created out of a fee simple. Thus the common law
does not recognise perpetual leases (see Say v. Smith, 1 Plowd. 269, 273 ;
Sevenoaks, ~laidstone, &: Tunbridge Rly. Co. v. London, Chatham, &:
Dover Rly. Co., 11 Ch. D. 62.5, 635) ; and the same objection exists to
a lease that is limited so as to terminate on an event that may never
occur.
Indeed, in early times the only estates that the common law
would recognise were freehold estates measured by reference to lives.
Then ,vhen, at thc close of the middle ages, terms of years ,vere recog-
nised as estates in land (though as chattel interests only) the question
arose ho,v the duration of these estates might be limited. No,v so
long as arhitrary rcstrietions ,,'ere not to be imposed, and as far as
possible the desires of the parties were to be effectuated, there was no
existing prineiple of law, it is submitted, that stood in the ,vay of any
kind of term being ereated so long as it \\'as not a terrn that by possi-
bility rrlight endure for c\"er. So long as the estate had a terminus
clearly asecrtainablc by the parties, there \\'as no yalid objection to
any pcriod heing chosen that the parties sought fit to adopt, \\'hether
the period "'as fixed hy rcfere,utc to the ealendar or h~' reference to an
c\'cnt C'crtaill to o('("ur, but IJl)(tertain as to its date.
TIl(' rule' ill faet laid dO\\'J) \\'a~ t Ilat ~et out in })}o\"den's }{cport of
.f)ay Y . •';ulith (J }»)o\\'d. 2H!J) ill the ~ixth year of ~~Ijzaheth\ reign. In
thi~ ('a~(' .\. J('a~ed land to X, for t('Jj \"(·ar~, and fljrther (~()\'cnanted
that if .. at flu' end and t('r'lI of e\'('r~' t(~Jl \'ear~ fronl thence next
foJlo\\ iJlu ' S. Ili~ h('ir~ or a~~igJI"t "tllolJl~J pay ·to A. or hj~ a~sign"t tcn
thou"aJld til(·". t}u,n X. hi" IH·ir~ or a""ign" "IHHJld lla\"e a p(~rpetual
denli,,(' of t }I(' land frOJll t('JJ ."('a,.~ to ten y(·a,." (tOntilllJaHy. X. paid
the til(·" at tiH' ('JHI of "t(.' (Oral p(·l'iod~ of ten .\'(·ar". It \\'a~ held that the
furt}}('r j( a,,(' JH'~ (,ltd f JHo fir"t f(·,. Y('ar~ ('ouJd JH:\'('r (·OHlnH~JHt(., bC('au"te,
(Ht(·ordlll~ t I, t 1,( \\ ord" u,,(·d. t Ilf' jJayJJH'nt of t ih·" \\ a" JJI,f to be rnade
 The Limitation oj"* Term oj"* Years 31

until every ten years had passed, i.e. until the end of the world; so that
the condition precedent to the lease could never be fulfilled.
When a court is ready to defeat the intention of parties by this
sort of logic-chopping in the construction of a deed, its capacity also
to lay down a rule of law valid for lllodern times may perhaps be
doubted. A more substantial objection raised was that the lease was
in perpetuity, though at the present day it \vould probably be upheld
as a perpetually renewable lease.
The rule laid down by the Court ,vas as follows : -
" Every contract sufficient to make a lease for years ought to have certainty
in three limitations, viz. in the commencement of the tenn, in the continuance of it,
and in the end of it : so that all these ought to be known at the commencement of
the lease, and words in a lease, which don't make this appear, are but babble, as
Brown said. .And these three are in effect but one matter, shewing the certainty of
the time for which the lessee shall have the land, and if any of these fail, it is not a
good lease, for then there ,vants certainty."
This rule is adopted in the leading authorities where the rnatter is
discussed, such as Coke on Littleton (45B), Sheppard's Touchstone
(272), and the article on l~eases and Terms for Years in Bacon's
~4.bridge'ment (Tit. Leases (I~.)). The article in Bacon's .L4bridgement
is considered to be the work of Chief Baron Gilbert and is generally
recognised as being of great authority.
Now it 11light be thought that the certainty required by the rule
as stated above is certainty as to the dates of the beginning and the
ending of the lease, and so certainty as to the number of years, etc.
for "rhich the lease is to endure; but as regards the date of commence-
ment this is not so. Thus in The Bishop of Bath's Case (6 Co. Rep.
34. b.) a lease was limited to commence on the termination of a prior
lease by re-entry on the death of the tenant or following surrender
or forfeiture, and it was held that the second lease might validly
comlnence on such re-entry. The authorities mentioned above contain
other exal11ples of leases ~alidly created to comnlence at a date not
certainly ascertained at the time of the agreenlent.
As to certainty of duration, the ill1portant question is whether the
duration l1lust be certain in the sense that it lnust be known for how
many years the term will last, or whether no more is necessary than
that the ternl will certainly ternlinate and that the fact and date of
termination ,viII be certainly ascertainable by the parties \vhen the
time comes. In The Bishop of Bath's Case (supra) the statement is
made that as to a lease " the continuance of it ought to be certain;
but that is to be intended either when the term is Illade certain by
express numbering of years, or by reference to a certainty, or by
reducing it to a certainty by l1latter ex post facto, or by construction
in law, by express limitation." As illustrating reference to a certainty
it is stated that a lease until a child en ventre sa mere shall conle of
full age is void, and the explanation given in Bacon's .~Jbridgernent
(Tit. Leases (L. 3)), slightly extending that gi,~en in the case cited,
is that" it is uncertain when or whether ever the son will be horn, and,
consequently, the beginning, continuance, and ending of this lease is
uncertain." But in a footnote to Atherley's edition of Sheppard's
Touchstone a suggestion is nlade that since a child en ventre sa lllere is
 82 The University of Queensland Law Journal

now considered to be a person in esse (see Woodford v. Thellusson,

4 Yes. 322, 834), such a lease would be good. Another illustration
given in The Bishop of Bath's Case is a lease during the minority of
I.G. who is of the age of ten years, which is a good lease for eleven years
if I.G. shall so long live. In fact it is a lease for an uncertain period,
for I.G. may die before twenty-one and his minority continues only
during his life. Again a lease until £21 shall be made of a rent of £1
per annum is said to be a good lease, but a lease until £21 shall be made
of the profits of land, presently worth £1 per annum, is void, " for it is
not certain that the land shall be every year of one annual value."
But the real objection in the second case is that the estate intended to
be created is more properly construed as a determinable life estate,
and that with livery of seisin such a life estate would arise. See Co.
Litt. 42. a.
In Coke on Littleton (45. b.) it is said that " if the parson of D.
make a lease of his glebe for so many yeares as he shall be parson there,
this cannot be made certaine by any meanes, for nothing is more
uncertaine than the time of death." This explanation involves un-
equivocally the proposition that the date of termination may not depend
on an event of uncertain date. But the same decision can be justified
on other grounds; for such a lease, if accompanied by livery of seisin,
would appear to create an estate for the life of the lessor (see Bac.
Abrid. Tit. Leases (L. 2.»; and it would be a reasonable rule that a
limitation capable of taking effect as an estate for life should not, in
the absence of livery of seisin, be held valid as a term of years. Similarly
the objection taken in Bacon's Abrid~ement to a lease during the
coverture between A. and B. is most strongly supported by the con-
sideration that, in the days before divorce was recognised, this was a
lease for joint lives, and thus, being a freehold estate, should have
been created by livery of seisin.
It seems to the writer that the problem that arose in the sixteenth
century, ,\Then terms of years acquired the full status of an estate in
land, ,,·as to find a test to distinguish between those estates which,
being freehold estates, required livery of seisin for their creation, and
those which, being of chattel quality, could be created by agreement.
A distinguishing mark of freehold estates was the indefiniteness of their
duration, so that it was natural to suggest, as the test, that a chattel
estate must differ by being of definite duration, especially as Bracton
had nlade this distiuetion : "' If moreover a gift be made for a term of
years, though of cxeeeding length--Ionger than the life of man-
neverthelc~s this \\'ill 110t give the donee a freehold, since a term of
year~ i~ fixed auu ascertained, and the limit of life is uncertain, and
becau~(>, althou~h nothing is Inore C"ertain than death, nothing is more
uneertaill thall the tinle of dc>ath " (translation from ])igby, llistcry of
the l~au: (~r }lpol jJr(,perly, 7th cd., p. ] 79). lIoreovcr the cases that
aro~e, \\ }J('J'(' I)ot obj(>('tionuble as involving a perpetuity, "'ere cases
in ,,·hi(·h tlH' jIlt(>rc~t ~ou~ht to he' (~reated was in effect an estate for
!ife.
If thi" i~ "'hat Hf'''' h(>}.i,HJ t}J(> rulc", then the rulf~, it is suggc~ted,
d()(>, not adt·fjlJaf(·Jy rru·(·t tl)(· probh'rn, for it o\'(~rlo{Jk~ the ea~c in \\'hieh
 The I-Jimitation o.f Terrn D.-f Years 33

it is sought to create a term of uncertain duration that is not de-

ternlinable with a life. Bracton's statenlent, it is submitted, should
not carry much weight, since in his day terms of years were not even
treated as estates; and the authority of sixteenth and seventeenth
century decisions is also limited by the undeveloped state of the law
then, and by a difference of attitude, already illustrated, in regard to
legal technicalities and the desirability of effectuating a reasonable
intention of the parties.
A better rule, it is submitted, would be that chattel estates may be
created in land to endure until the occurrence of an event of uncertain
date, provided that according to the ordinary course of nature or of
human affairs the event will certainly occur, and provided at the same
time that the term thus limited is not one approximating to any type
of freehold estate. It may be noted that a chattel estate of this type
has long been allowed if created by will, viz. a devise to the executors
until the testator's debts are paid (see Co. Litt. 42. a. ; 8 Co. Rep. 96. a.) ;
but this has depended on the effect of the Statute of Wills, and a similar
limitation in a conveyance inter vivos would have created a freehold
estate (8 Co. Rep 96 a), i.e. a deternlinable life estate. If the principle
urged here were accepted the courts perhaps nlight be less anxious to
consider such interests as freehold estates when a different intention
appeared.
The authorities no doubt are opposed to the argument of this
article and the question is whether the rule discussed is too long
established to be upset. It is to be observed, however, that to refuse
to follo,v the old rule would cause no hardship; and that, for the reasons
already indicated, the authority of the old cases and text-writers is
limited. Therefore, it is submitted, it is open to a superior court to
lay down a rule, consistent with fundamental common law principles,
which effectuates an intention to which there is no valid objection,
and which gets rid of a technicality that disfigures the law.

W. N. HARRISON.