Solar Panels, Homeowners and Leases: The Lease as a Socio-Legal Object

Abstract

This chapter¹ is concerned with a rather dull and formal piece of paper: the lease. As a legal technical document it is (or was — the past looms large given the length of leases) created by conveyancers in a law office. We know little of its creation — something I shall return to later. But, as the quotes above show, the lease appears to be something of a contradiction — a flexible contract and an inflexible institution. Leases are usually studied as part of property law. It is generally accepted that ‘[p]roperty law tends to the regarded by students as both dull and difficult’ (Clarke and Kohler, 2005, p. xvii). Within this, leases may be seen as particularly so, to such an extent that many English law schools simply do not bother to teach anything but the most basic principles of the distinction between leases and licences and certainly would not stray into the statutory regulation of the relationships between leaseholders and freeholders, nor ask their students to read and interpret leases. If ‘[t]he machinery of law is often dismissed by critical legal scholars as “technical”, with the contents of the “technical” black box being left to black-letter law professors’ (Valverde, 2005, p. 427), here is a technical aspect that not even the black-letter law professors are very interested in.

It has been said that the development of the lease as predominantly a contractual device gave it ‘a plasticity which could conform to the finest shade of commercial requirements’. (Davey, 2006, p. 149, quoting Grove and Garner, 1963, p. 174)

A lease is a sophisticated but somewhat inflexible institution, not easily adjustable to meet changing social and commercial expectations and this can limit its usefulness. (Clarke and Kohler, 2005, p. 609)