Characteristics of a Lease Flashcards
Characteristics of a Lease
- Creates an estate in land – proprietary interest
- Tenant has exclusive possession against all others, including landlord
- Overall control of property for term of lease
- Can be transferred
- Binds new owners of the freehold
Characteristics of a Licence
- No estate in land, but a permission on the land
- Not a proprietary interest
- Cannot bind new owners of freehold
Street v Mountford [1985]
Definitional requirements of a lease
- CERTAINTY OF TERM + EXCLUSIVE POSSESSION = LEASE
Ashburn Astalt v Arnold [1989]
s205 (xxvii) LPA 1925
Definitional requirements of a lease
Rent is not an essential characteristic of a lease
Lace v Chantler [1944]
Certainty of Term
Maximum Duration
Duration of 2nd World War not a fixed term as didn’t know how long would last
Prudential Insurance Co Ltd v London Residuary Body [1992]
Certainty of Term
Maximum Duration
Land let until needed for road widening – failed because not know when road would be widened.
Exact date doesn’t need to be known, but maximum duration must be known.
Berrisford v Mexfield Housing Co-operative [2011]
Characteristics of a Lease
Maximum Duration
Uncertain terms can be interepreted as leases for life
s.149(6) LPA 1925
Leases for Life
Maximum Duration
s.149(6) LPA 1925 – converts leases for life into fixed terms for 90 years and brought to end early on death of tenant;
Doesn’t apply to companies
Hammond v Farrow [1904]
Certain Duration
Periodic Term
Short terms presumed to be for not more than 3 years
Exclusive Possession
Characteristics of a Lease
Occupier can exclude everyone from property, including the Landlord.
Landlord having to ask permission to come round to look at property is acceptance of this
Retention of a Key
Scenarios where there may be no exclusive possession
- Retention of a key by a landlord may indicate that the occupant does not have exclusive possession
- However, if the key is used only in an emergency or by arrangement, then exclusive possession may exist.
- Must Distinguish restricted/unrestricted access e.g. landlord may require possession to manage works in the property (restricted access)
Aslan v Murphy [1989]
Retention of a Key
Scenarios where there may be no exclusive possession
Retention of key was a sham and just an attempt to try and distinguish between lease and licence
Antoniades v Villiers [1990]
Clauses reserving the right to share or introduce others
Scenarios where there may be no exclusive possession
- If a landlord reserves the right to share the property with the occupiers or reserves the right to introduce others to share, that may mean there is no exclusive possession.
- Clause in the ‘license’ to say landlord could reserve the right to share or introduce others to a property – trying to dispel exclusive possession to make it look like a license not a lease
- Couple living together in a one-bed bedsit with a double bed – not appropriate for someone else to come and share the property
AG Securities v Vaughan [1990]
Clauses reserving the right to share or introduce others
Scenarios where there may be no exclusive possession
- If a landlord reserves the right to share the property with the occupiers or reserves the right to introduce others to share, that may mean there is no exclusive possession.
- V large flat with rooms with own locks, share bathroom, shared kitchen. Used by young professionals
- Clause in the ‘license’ to say landlord could reserve the right to share or introduce others to a property up to a maximum of 4
- Parties were strangers when they took the property, there were 4 bedrooms
- Court said it was a genuine clause and the occupants had licences
Markou v da Silvesa [1986]
Provision of Services
Scenarios where there may be no exclusive possession
- If landlord provides services, occupant is termed as a lodger and if they have a key for this it is unrestricted access
Facchini v Bryson [1952]
No Intention to create legal relations will defeat a lease
Exceptions to Street v Mountford criteria
-
Although rent is not an essential element, the fact it is not paid may demonstrate no ICLR
- Where there is an act of generosity, friendship, family, presumption is no ICLR and can be terminated at any time.
Heslop v Burns [1974]
No Intention to create legal relations will defeat a lease
Exceptions to Street v Mountford criteria
Husband and wife provided with a cottage rent free as an act of generosity. Rates, costs and maintenance paid by benefactor – No ICLR
Foster v Robinson [1951]
No Intention to create legal relations will defeat a lease
Exceptions to Street v Mountford criteria
- Farmer allowed former employee to live rent free in cottage for rest of his life. On his death, daughter claimed to be entitled to remain, paying the old rent. Held to be a licence as no ICLR.
Norris v Checksfield [1991]
If Service Occupancy, there is no Lease
Exceptions to Street v Mountford criteria
- Heavy goods vehicle coach driver given accommodation at depot to enable him to drive coaches in an emergency;
- sacked as he didn’t have a HGV licence; argued he had exclusive possession and certainty of term so he had a lease;
- employer claimed was a service occupancy – only had the premises to do the job; court agreed.
Royal Philanthropic Society v County
If Service Occupancy, there is no Lease
Exceptions to Street v Mountford criteria
- Mr County was a school teacher and housemaster (service occupancy). While he was still employed, he got married and moved to a different house but still in school premises.
- When he left, the school tried to kick him out, but he said that it was no longer a service occupancy as he was not using this house to perform his duties; was just a perk of the occupation. Therefore, he had a lease and could stay in it until the end of the lease. Court agreed.
Bruton v London and Quadrant Housing Ltd [2000]
Exceptions to Street v Mountford criteria
- Homeless man living in short-term occupation argued he had a lease granted to him. He had exclusive possession and did not share it with the Trust or anyone else.
- Only rights trust had were specifically reserved for it in agreement, which was clear acknowledgement Trust did not automatically have these rights
Westminster CC v Clarke [1992]
Exceptions to Street v Mountford criteria
- Homeless man signed a ‘licence to occupy’ which acknowledged he did not have exclusive possession and that council could require him to change rooms or share. Therefore, a licence.
Vesely v Levy [2007]
Exceptions to Street v Mountford criteria
- Trustees bought flat for occupation by the beneficiary who had mental health problems. Miss Vesely lived with the beneficiary as companion and carer. Had exclusive possession of some parts of flat and claimed tenancy.
- CoA held even though exclusive possession and fact payment of rent not necessary, circumstances still meant didn’t have tenancy.
Holland v Oxford City Council [2017]
Exceptions to Street v Mountford criteria
- Claimant member of Showman’s Guild and claimed tenancy over 2 sites at an annual fair organised by defendant.
- Court looked at context of arrangements and held no exclusive possession.
- Council had high degree of control, involving right to enter sites freely, and an implied licence for public to enter the fair site too.
