The Common Law Principle Of Nemo Dat Quod Non Habet

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The common law principle of nemo dat quod non habet has long held that a person cannot convey a superior title to the one already held, and in essence, a person holding a licence cannot convey the superior title of a lease. However, the House of Lords’ decision in Bruton represents a departure from such orthodox principles of property law, holding that someone with no interest in land can grant a lease provided that the exclusive possession is given in the agreement. Bruton has ‘controversially confirmed the existence in English Law of the phenomenon of the contractual or non-proprietary lease’. This decision has implored vital scrutiny on a range of legal issues pertaining to the law on landlord and tenant and on land law in general. In Burton, the House of Lords held that under a contract wherein a person promises another exclusive possession for a defined term, it is a lease and not a licence, despite the landlord having no legal or equitable interest in the land. This represents an unprecedented departure from orthodox principles of property law and in turn has blurred the distinction between leases and licences. The House of Lords’ justification of a purely contractual lease is of undoubtable appeal to academics. Nonetheless, the orthodox principles of property law are in conflict with this since they reject the possibility of a lease which is not also an estate in land. An unprecedented decision: Interest in property In Street v Mountford , Lord Templeman held that

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