In Berrisford v Mexfield [2011], what does Lord Neuberger mean by &#39;a fetter of uncertain duration on the right to serve a notice to quit&#39;?
<p>I quote Lord Neuberger in <a href="http://www.bailii.org/uk/cases/UKSC/2011/52.html" rel="nofollow noreferrer"><em>Berrisford v Mexfield Housing Co-operative Ltd</em> (Rev 1) [2011] UKSC 52</a>. I grok <a href="https://www.etymonline.com/word/fetter#etymonline_v_5887" rel="nofollow noreferrer">fetter</a> in <a href="https://www.merriam-webster.com/word-of-the-day/fetter-2022-05-26" rel="nofollow noreferrer">layman terms</a>, but this legalese noun phrase is packed with too many nouns!</p>
<blockquote>
<ol start="32">
<li>In <em>Prudential</em> <a href="http://bailii.firedrake.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1991/10.html" rel="nofollow noreferrer">[1992] 2 AC 386</a>, the House of Lords overruled <em>Midland Railway</em> [1971] Ch 725, effectively on the basis that <strong>a fetter of uncertain duration on the service of a notice to quit</strong> [emboldening mine] in relation to a periodic tenancy was as objectionable to the concept of a tenancy as was the existence of an uncertain term. It was not, however, suggested by Lord Templeman that <em>Breams</em> [1948] 2 KB 1 was wrongly decided.</li>
</ol>
</blockquote>
<blockquote>
<ol start="34">
<li>If we accept that that is indeed the law, then, subject to the point to which I next turn, the Agreement cannot take effect as a tenancy according to its terms. As the judgment of Lady Hale demonstrates (and as indeed the disquiet expressed by Lord Browne-Wilkinson and others in <em>Prudential</em> <a href="http://bailii.firedrake.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1991/10.html" rel="nofollow noreferrer">[1992] 2 AC 386</a> itself shows), the law is not in a satisfactory state. There is no apparent practical justification for holding that an agreement for a term of uncertain duration cannot give rise to a tenancy, or that <strong>a fetter of uncertain duration on the right to serve a notice to quit</strong> is invalid. There is therefore much to be said for changing the law, and overruling what may be called the certainty requirement, which was affirmed in <em>Prudential</em> <a href="http://bailii.firedrake.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1991/10.html" rel="nofollow noreferrer">[1992] 2 AC 386</a>, on the ground that, in so far as it had any practical justification, that justification has long since gone, and, in so far as it is based on principle, the principle is not fundamental enough for the Supreme Court to be bound by it. It may be added that Lady Hale's Carrollian characterisation of the law on this topic is reinforced by the fact that the common law accepted perpetually renewable leases as valid: they have been converted into 2000-year terms by section 145 of the Law of Property Act 1922.</li>
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<p>I  found merely one textbook that refers to this noun phrase.</p>
<blockquote>
<p>Certainly, <em>Southward Housing Co-operative v. Walker</em> has been criticized40 and it is true
that the reasoning in <em>Mexfield</em> did not necessarily justify the outcome according to the intentions
of the parties.'41 However, if the consequence of <em>Mexfield</em> is that regardless of the
intention of the parties, courts will ‘inexorably’ find a tenancy for life when there is a tenancy
of uncertain duration as a consequence of a <strong>fetter of uncertain duration</strong> [emboldening mine], then this has
profound consequences for all landlords, not just housing co-operatives as in <em>Mexfield</em>.42 In particular, as Susan Pascoe argues: ‘The dual transmogrification process applied in
<em>Mexfield</em> would be antithetical to the core essence of a periodic tenancy.’43 For these reasons,
as well as the doubts as to the interpretations of the legal history in <em>Mexfield</em>, the result in
<em>Walker</em> deserves consideration.</p>
</blockquote>
<p>Antonia Layard, <em>Thompson's Modern Land Law</em> (8 edn, 2022, OUP), pp. 319n20.</p>

<p>A <a href="https://england.shelter.org.uk/housing_advice/eviction/eviction_notices_from_private_landlords" rel="nofollow noreferrer"><strong>notice to quit</strong></a> is a technical term for a particular type of document, given to a tenant by a landlord to inform the tenant that they must move out.  To &quot;quit&quot; generally means to leave a place or situation; it is commonly used to refer to leaving a job, but in this case it means to leave the property that is being rented.</p>
<p>To <a href="https://en.wikipedia.org/wiki/Service_of_process" rel="nofollow noreferrer"><strong>serve</strong></a> a notice to quit is to formally deliver this document to the tenant, following certain prescribed procedures that are meant to ensure it is actually received.</p>
<p>The <strong>right</strong> to serve such a notice is, well, the right to do that.</p>
<p>A <strong>fetter</strong> on the right to serve the notice is something that would prevent or restrict the landlord from doing so.  It literally means a chain that keeps a prisoner from moving, and is used here metaphorically as something that prevents someone from doing something.</p>
<p>A fetter of <strong>uncertain duration</strong> is a restriction for which it is not clear how long it would last.</p>
<p>The issue here appears to be that the landlord and tenant did not clearly specify how long the tenancy would last.  It could be argued that in such a case, the tenancy effectively lasts for life, and the landlord cannot terminate it at all (except for cause such as nonpayment).  If so, that would certainly be a &quot;fetter&quot; on their right to serve a notice to quit, and its duration would be uncertain.</p>

<h2>A fetter is a restraint: just not a physical one</h2>
<p>The phrase means a restriction that prevents quitting the duration of which cannot be determined.</p>

england-and-wales landlord tenant