1. C Harpum et al Megarry and Wade's The Law of Real Property (London: Sweet & Maxwell, 6th edn, 2000) p 6.

2. See A W B Simpson A History of the Land Law (Oxford: Clarendon Press, 2nd edn, 1986) pp 37 and 74.

3. Megarry and Wade, above n 1, p 6. Compare a more catholic perception in A W B Simpson A History of the Land Law(Oxford: Clarendon Press, 2nd edn, 1986) p 251: ‘The landed gentry retained freehold interests, commonly under settlement, and exploited the land at one remove, and left a class of tenant farmer in actual occupation of the soil. They in their turn employed labourers, landless men, hired periodically, who might live in or have their own tied cottages. At its best this system could be an acceptable one. The landlord and tenant divided between them the burden of providing capital for agriculture, and a progressive landlord could do a great deal to encourage, and even insist upon, good husbandry. The system at its worst can be seen in the melancholy history of Ireland, where some of the English landlords rarely visited their estates, and were only concerned to extract from their tenants rents which would enable them to live in affluence in England.

4. See D Spring ‘English Landowners and Nineteenth-Century Industrialism’ in J T Ward and R T Wilson (eds) Land and Industry: The Landed Estate and the Industrial Revolution (Newton Abbot: David Charles, 1971) p 45 and generally.

5. See Law of Property Act 1925, ss 1(1) and 205(1)(xxvii).

6. Time seen as money, it might be said; see B Kops’ play The Dream of Peter Mann (Harmondsworth: Penguin Books, 1960).

7. E H Burn Cheshire and Burn's Modem Law of Real Property (London: Butterworths, 15th edn, 1994) p 97. And see F H Lawson and B Rudden The Law of property, (Oxford: Clarendon Press, 2nd edn, 1982) p 118: The lease ‘divides the present income value of the land between the lessor and the lessee, the former taking a fixed rent and the latter the undefined residue of the profits arising from the exploitation of the land’.

8. F H Lawson The Rational Strength of English Law (London: Stevens & Sons, 1951) p 79.

9. ‘… the law of property, and more especially the law of real property… is logical and orderly, its concepts are perfectly defined and they stand in well recognised relations to one another…’ (Lawson, above n 8, p 79).

10. Firstpost Homes Ltd v Johnson (1995) 1 WLR 156 at 1576 (Peter Gibson LJ).

11. The distinction between the use of the term ‘real property’ and the term ‘real estate’ may be interesting. There is not space to examine it here. In the present context I take them to be synonymous, ‘real estate’ being used (in the Administration of Estates Act 1925, for example), as I argue below, in the sense of that part of a person's assets which comprises interests in land.

12. The jurisprudence and concepts of European law are creeping inexorably into the very heart of English law. Increasingly, for example, consideration needs to be given to the relationship between the term ‘land’ in English law and the term ‘immovables’ in European law. See eg Bell v Exxtor Ltd in the Court of Appeal (1993, Lexis Transcript). Here the issue was whether an agreement with the Chamber of Commerce and Industry of Dieppe for the use of a ferry-ramp at Dieppe had as its object a tenancy of immovable property in France for the purposes of art 16 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, contained in Sch 1 to the Civil Jurisdiction and Judgments Act 1982. Interestingly, in the present context, Balcombe LJ recognised that, whilst the agreement would not create a tenancy under English or French law, it might be open to the European Court of Justice to give the word ‘tenancy’ in art 16(1) a meaning different from that which it contained in either. And see Mechanical Engineering Consultants Ltd v Commissioners of Customs and Excise(1995, VAT and Duties Tribunal, Manchester, Lexis Transcript).

13. See S Bright and G Gilbert Landlord and Tenant Law (Oxford: Clarendon Press, 1995) p 4. Note the statement there that private, residential renting ‘no longer represents the generally preferred form of tenure…’ Even a book with such a refreshing approach as this one, seems to assume that the periodic tenancy was as much a matter of choice for the urban and rural working class as for the landlord.

14. The protection given by the common law is nicely encapsulated in the following: The rent man says. Dear God in heaven, this beats Banagher, this takes the bloody biscuit, this is goin beyond the beyonds. No rent and what am I to tell Sir Vincent below in the office? Out, missus, I'm puttin ye out. One week from today I'll knock on this door and I want to find nobody at home, everybody out never to return. Do you have me, missus?… No lip, missus, or I'll send the men to put ye out tomorrow. (F McCourt Angela's Ashes (London: Flamingo, 1997) p 322). Even with statutory security of tenure, private residential tenants were vulnerable: see eg Housing in Greater London (Cmnd 2605, 1965 – The Milner Holland Report).

15. E Gauldie Cruel Habitations (London: George Allen & Unwin, 1974) p 218.

16. Gauldie, above n 15, pp 23 and 28 (footnotes omitted).

17. The Agricultural Holdings (England) Act 1875 gave the tenant compensation for improvements. Not until the Second World War, with the Agriculture Act 1947 and the Agricultural Holdings Act 1948, did farming tenants get security of tenure and protection as to rent.

18. P S Atiyah The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979) p 634; and see Lord Hailsham LC in Johnson v Moreton (1978) 3 All ER 37 at 48. Note that in 1830 in the Swing risings, the farmers frequently showed sympathy, beyond that of fear, with the farm labourers, blaming the levels of tithes and rents for their inability to pay decent wages; see J L and B Hammond The Village Labourer (Abingdon: Fraser Stewart, 1987) p 248; and. generally, G Rude Captain Swing (London: Lawrence & Wishart, 1969).

19. P Lowe, J Clark, S Seymour and N Ward Moralising the Environment (London: UCH Press, 1997) p 10.

20. It has been suggested that development of a principle under which the concept of ownership was attached to an estate in the land rather than the land itself was ‘an ingenious compromise’ by which ‘English law resolved at a stroke the apparent contradiction of theory and reality in the ownership of land.’ (K Gray Elements of Land Law (London: Butterworths, 2nd edn. 1993) p 56); in other words, the doctrine of estates provided a rational, technical scheme under which there was a designated place for everyone with any interest, freeholder or leaseholder, without challenging the economic reality of a post- feudal, developing notion of absolutist land ownership.

21. Even today, the term ‘landowner’ is commonly used to connote the freeholder with thousands of acres, excluding not only the leaseholder/tenant but even the millions who own mortgaged, freehold homes and gardens; see eg M Shoard A Right to Roam (Oxford: Oxford University Press, 1999) p 4.

22. Erle CJ in Robbins v Jones(1863) 15 CBNS 221 at 240. Yet the courts were quite capable of modifying the principle of caveat emptor in the interests of commerce; see the codification in Chalmer's Sale of Goods Act 1893.

23. For one of the very limited exceptions, grudgingly conceded by the courts, see the case relating to the common parts of a high-rise tower block, Liverpool City Council v Irwin (1977) AC 239. What is significant about this case is the very narrow limits to the exception allowed by the House of Lo ‘To imply an absolute obligation to repair would go beyond what is a necessary legal incident and would indeed be unreasonable. An obligation to take reasonable care to keep in reasonable repair and usability is what fits the requirements of the case. Such a definition involves – and I think rightly – recognition that the tenants themselves have their responsibilities. What it is reasonable to expect of a landlord has a clear relation to what a reasonable set of tenants should do for themselves.’ (Lord Wilberforce (at 256)). Also significant is the fact that in this, the case of a letting by a social landlord, the express terms of the tenancies consisted of a long list of obligations imposed on the tenants but ‘On the landlord's side there is nothing, no signature, no demise, no covenant’ (Lord Wilberforce (at 253)); and that the issue was decided as an issue of contract law by the application of contract law principles.

24. For a brief resume of the subsequent Rent Acts, see J Morgan Text Book on Housing Law (London: Blackstone Press, 1998) ch 2.

25. See Increase of Rent and Mortgage Interest (Restrictions) Act 1920, s 15(1) and Rent Act 1977, s 3(1).

26. See Increase of Rent and Mortgage Interest (Restrictions) Act 1920, s 12(1)(g), giving succession to the widow or a member of the tenant's family residing with him at death.

27. Keeves v Dean (1924) 1 KB 685 at 694 (Scrutton LJ).

28. (1924) 1 KB 685 at 690 (Bankes LJ); and see Skinner v Geary (1931) 2 KB 546 at 559 (Scrutton LJ) for ‘…the view that the statutory tenant's right was not a right of property… but that the right of the statutory tenant is a purely personal right to occupy the house as his home’ . And see C Hand ‘The Statutory Tenancy: An Unrecognised Proprietary Interest’ (1980) Conv 351. Also, S Bright and G Gilbert in Landlord and Tenant Law (Oxford: Clarendon Press, 1995) p 119, who conclude (after referring to Hands) that: ‘Nevertheless, the general view is that the statutory tenancy is a purely personal right.’

29. See eg Keeves v Dean (1923) 1 KB 685; Skinner v Geary (1931) 2 KB 546; Marcroft Wagons Ltd v Smith (1951) 2 KB 496; and Johnson v Felton (1994) 27 HLR 265.

30. (1931) 2 KB 546.

31. (1931) 2 KB 546 at 565, dissenting on this issue, though he found for the landlord on the basis that the tenant had actually sub-let the whole of the premises, a situation expressly dealt with in s 4 of the relevant 1923 Act.

32. Nominally, all land subject to a trust for sale became money, and as such personalty. This underlying purpose of the Act (together with the perspective being discussed here) helps to explain perhaps the difficulty of the courts in coping with s 30 and recognising anything beyond a duty to sell; see Re Mayo (1943) Ch 302, which continued right up to the Trusts of Land and Appointment of Trustees Act 1996. to be cited in textbooks as the leading case.

33. As did the Town and Country Planning Act 1947, the successors to which still receive equally short shrift from those who seek to determine the agenda of the subject called Property Law.

34. As under Law of Property Act 1925, s 54(2).

35. As under Landlord and Tenant Act 1985, s 11; this section of course applies equally to periodic tenancies.

36. As under Land Registration Act 1925, s 70(1)(k) (again also applying to legal periodic tenancies); and Leasehold Reform Act 1967, giving a right to enfranchise in the case of the lease of a house for a term exceeding 21 years. 37.

37. (1999) 3 All E R 481, HL.

38. (1985) 2 All ER 289.

39. (1992) 2 AC 288. And driven perhaps, at last, by a century of legislation designed precisely to give protection to vulnerable tenants.

40. (1999) 3 All ER 481 at 487 (Lord Hoffmann, with whose opinion the rest of their Lordships agreed). And see (at 490) Lord Hobhouse of Woodborough: ‘The case of Mr Bruton depends upon his establishing that his agreement with the housing trust has the legal effect of creating a relationship of tenant and landlord between them. That is all.’

41. (1999) 3 All ER 481 at 484 (Lord Jauncey of Tullichettle).

42. Which could perhaps be seen as today's equivalent of the fragile, periodic tenancy of an earlier period described in the text above.

43. A contract to sell the freehold creates an immediate, proprietary (equitable) interest in the purchaser. See eg Lloyds Bank plc v Carrick (1996) 4 All ER 630.

44. Lord Diplock in Ocean Estates Ltd v Pinder (1969) 2 AC 19 at 24.

45. Compare Durton v Manchester Airport plc (1999) 2 All ER 675, where it was held that a licensee with a contractual right to occupy could sue to recover possession against a trespasser.

46. A significant element in Bruton was not that the defendant was a social landlord; but rather that the legislation in issue was social legislation for the protection of residential occupiers.

47. Indeed, one and a quarter centuries after the Judicature Act 1873, the dichotomy between legal and equitable interests in land might be reappraised; it might be said, for example, to have little significance in relation to registered title where the central distinction is really between registered and minor interests.

48. See n 11 above.

49. Thus, in the example much quoted in textbooks (if rarely encountered in practice) of a testamentary gift of ‘My real estate to A and personal estate to B’, I suggest that it would now be proper (subject to the ordinary canons of testamentary construction) to hold that this passed any leasehold interests in land to A.

50. ‘When (Mrs Malaprop) says “She is as obstinate as an allegory on the banks of the Nile”, we reject the conventional or literal meaning of allegory as making nonsense of the sentence and substitute “alligator” by using our background knowledge of the things likely to be found on the banks of the Nile and choosing one which sounds rather like “allegory”.’ (Lord Hoffmann in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (1997) AC 749 at 774).

51. Butler v Butler (1885) 28 Ch Div 66 at 71 (Chitty J).

52. C H Sherrin et al Williams on Wills (London: Butterworths. 7th edn, 1995) p 522; and similarly in the case of statutory words, see R Cross and J Bell Statutory Interpretation (London: Butterworths, 3rd edn, 1995) p 72.

53. Re Sirett. Pratt v Burton (1969) 1 WLR 60 at 66. Buckley J.

54. Specifically, the Wills Act 1837 which, in s 1, defines personal estate, for the purposes of the Act, to include chattels real/leasehold. The simple point is that the use of a term in such an old statute is no guide to its ordinary meaning outside that particular statute today. Section 30(1) of the Conveyancing Act 1881 (repealed in any case save as to deaths before 1926) only makes the distinction between real property and chattels real for the purpose of merging consequences which previously flowed from the distinction. See below in text for other exceptions.

55. Taken from a Lexis search against ‘chattel! real’.

56. Usually, the use of the term ‘includes’ in an interpretation section ‘indicates an extension of the ordinary meaning which continues to apply in appropriate cases’ . (Cross and Bell, above n 52, p 119: but what, I suggest, is happening here, is that the Act is extending the definition of ‘real estate’ not just for the purposes of the Act but for the new unitary scheme of devolution on death which the Act was heralding.

57. See s 55(1)(xix): and also s 3.

58. See Re Sirett. Pratt v Burton (1968) 3 All ER 186 at 190 (Buckley J).

59. See ss 1(1), 2(1) and 33(5).

60. Section 72 brings together two earlier statutes dealing respectively with the conveyance of personalty (including leasehold) and freehold by one person to himself and another, and by one person to his wife; see C Harpum et al Megarry and Wade's The Law of Real Property (London: Sweet & Maxwell, 5th edn, 1984) p 1169. Like s 72(1), s 130 of the Law of Property Act 1925 uses ‘real property’ to mean freehold, but only as a means of identifying the old rule relating to entails which was thence to be applied to all real and personal property.

61. Likewise, Law of Property Act 1922, Sch 15, para 17(4).

62. Taken from Lexis search against ‘real estate or real property’.

63. There may be cases where, though not doing so expressly, this legislation could be said to be using the old classification; eg s 80(1) of the Law of Property Act 1925, re-enacting s 59 of the Conveyancing Act 1881; see Langstone v Hayes (1946) KB 109.

64. Children Act 1989, Sch 1, paras 7(6), 10(4); Administration of Justice Act 1982, s 20; Inheritance (Provision for Family and Dependants) Act 1975, s 23; Matrimonial Causes Act 1973, s 31.

65. For the earlier statute, first making real as well as personal estate pass to the personal representatives on death, see Land Transfer Act 1897.

66. See especially s 47A of the 1925 Act, which contains a like provision and in which ‘real estate’ is thus covered by the definition in s 55 to include chattels real.

67. And see Companies Act 1985. s 182(1); the Administration of Estates Act 1971, s 6; Naval Discipline Act 1957, s 135 which assimilates ‘real property’ to heritable property; similarly, the Air Force Act 1955, s 223 and the Army Act 1955, s 225.

68. See W A Wilson and A Forte Gloag and Henderson's The Law of Scotland (Edinburgh: W Green, 10th edn, 1995) p 699.

69. How many swallows, one might speculate, are as a matter of law necessary to make a summer?

70. From a Lexis search against ‘meaning w/10 real property or real estate’.

71. Barclays Bank plc v Lougher (1996) 51 Con LR 75, and Lexis transcript, concerned with the meaning of ‘land’ in s 44(1) of the Law of Property Act 1925 as amended.

72. Re Donkin, Public Trustee v Cairns (1948) Ch 74; Re Siretr, Pratt v Burton (1968) 3 All ER 186 (referred to in the text above); and Re Bradshaw, Bradshaw v Bradshaw (1950) Ch 78; all these three are concerned with the interpretation of s 51(2) of the Administration of Estates Act 1925. Finally, there is Re Buessr's Will Trusts (1963) Ch 419, dealing with the provision in the Finance Act 1894 (preserved by the Land Transfer Act 1897 and the Administration of Estates Act 1925, s 53(3)(c) and abolished by the Finance Act 1975, ss 52(2), 59(5) and Sch 13), making a freehold devise bear its own estate duty.

73. As one example, see Somma v Hazelhurst (1978) 2 All ER 101 1 at 1022, a landlord and tenant case, where Cumming-Bruce LJ refers to waste as ‘a familiar term of art in the law of real property [which] carries the meaning of damage or prejudice to the reversion’.

74. By happy coincidence, one of the clues in the crossword when I was drafting this article (Times Crossword No 21,252) was: ‘In fact, I invested in landed property’; the answer being ‘reality’.