Crago v Julian

An orally created short lease may be validly created by parol under section 54(2) of the Law of Property Act 1925, but its assignment remains a disposal of an interest in land requiring writing under section 53(1)(a). Further, a legal assignment must be made by deed under section 52(1). The exception in section 52(2)(d) applies to the creation of a lease or tenancy not required to be in writing. It does not extend to a later assignment, mortgage or other disposition of that lease.

Mrs Julian had remained in the flat formerly occupied with her husband after their divorce. Her former husband had undertaken in matrimonial proceedings to transfer his sole tenancy to her, but no formal transfer was executed. The landlord later served a notice to quit on him and brought possession proceedings against Mrs Julian.

Judge MacNair in Lambeth County Court held for the landlord. He found that the tenancy had not been assigned to Mrs Julian. On her appeal, the only issue was whether the former husband had assigned the tenancy to her before expiry of the notice to quit. The central question was whether an orally created periodic tenancy could be legally assigned otherwise than by deed.

Appeal dismissed unanimously. Sir Donald Nicholls V-C delivered the judgment, with which Russell and Leggatt LJJ agreed.

1. Section 53(1)(a) of the Law of Property Act 1925 treats both the grant and the assignment of a tenancy as, respectively, the creation and disposal of an interest in land. They must therefore be in writing, unless an applicable statutory exception applies.

2. Section 54(2) preserves the oral creation of a lease taking effect in possession for no more than three years at the best reasonably obtainable rent. Its language does not preserve oral assignments. The statutory scheme deliberately distinguishes between the creation of a short oral lease and its later assignment. The court followed Botting v Martin (1808) 1 Camp 317, which had rejected the contrary argument.

3. In any event, the legal assignment also required a deed. Section 52(1), read with the statutory definition of conveyance, applies to written instruments effecting legal estates. The exception in section 52(2)(d) concerns the lease or tenancy itself. It does not exempt a subsequent assignment from the deed requirement. Rye v Rye [1962] AC 496 supported this reading of section 52.

4. Thomas Pocklington's Gift Trustees v Hill (1989) 21 HLR 391 was not authority on sections 52 to 54. Although that case proceeded on an oral assignment of a periodic tenancy, the statutory formality issue had not been argued or decided.

5. There was no assignment in writing and no deed. Mrs Julian therefore never became the tenant. The court did not need to decide whether the parties' words or conduct amounted to an attempted oral assignment. It added that a new tenancy could have arisen orally had the landlord or its agents agreed to accept Mrs Julian as tenant in substitution for her former husband, but that had not occurred.

• Court of Appeal: Mrs Julian's appeal was dismissed: [1991] EWCA Civ 4.
• Lambeth County Court: On 17 May 1990, Judge MacNair gave judgment for Mrs Crago in possession proceedings, holding that the tenancy had not been assigned to Mrs Julian.