essential requirements of a lease Flashcards
what is a lease?
when one person with an estate in land (the Landlord) grants the temporary right to another person (the Tenant) to use and enjoy that land exclusively
what are the other names of a lease?
- leasehold estate
- tenancy
what is another name of a landlord?
lessor
what is another name for a tenant?
lessee
what is a licence?
confers a personal permission
(personal right) to be on someone’s land (would otherwise be a trespass)
what are the characteristics of a lease?
- proprietary right in the land
- capable of being enforced against third parties
- tenant can sue a 3rd party for nuisance or trespass
- can confer the right of security of tenure
- enforceable in rem
- various statutory protections available
what are the characteristics of a licence?
- personal permission to be on someone’s land
- can only be enforced against the grantor
- licensee is not entitled to sue a third party for nuisance or trespass
- no security of tenure
- enforceable in personam
- no statutory protection for licensees
what is security of tenure?
the right of occupants of residential or commercial accommodation (if
certain circumstances exist) to remain after the formal arrangement ends and request a new lease.
facts in Street v
Mountford [1985] AC 809
Facts: Mr Street granted to Miss Mountford a right to occupy rooms. The parties entered into a
written agreement which described the arrangement throughout as a ‘licence’ and called the
agreed payment a ‘licence fee’.
outcome in Street v Mountford [1985] AC 809
The House of Lords held that this was in substance a tenancy, a lease, rather than a licence.
Street v Mountford makes it clear that for a lease to exist there must be:
- Certainty of term; and
- Exclusive possession.
is rent also essential?
no (Ashburn
Anstalt v Arnold [1989])
what are the requirements for a lease?
- certainty of term
- exclusive possession
- the correct formalities
what is meant by ‘certainty of term’?
the tenancy must be granted for a certain
duration. This means you need to know when the arrangement will end:
- fixed; or
- periodic
example of leases failing for lack of certainty
a lease ‘for the duration of the war’ (Lace v Chantler [1944] KB 368)
what is a fixed term
maximum duration of the arrangement is known from the outset
how can a party unilaterally bring a lease to an end before the fixed term expiry?
break clause
periodic tenancy
a lease for one period:
- weekly
- monthly
- quarterly
- yearly
how does a periodic tenancy end?
landlord or tenant serves notice to quit
until then, goes on extending itself
automatically
example of a periodic term
A landlord and tenant enter into a monthly tenancy of a storage locker. Technically there is a
lease of one month, then another, then another (which could go on for years) until either the
tenant or the landlord give one month’s notice to terminate the arrangement.
how can a periodic term be created?
- expressly
- impliedly
express periodic tenancy
where there is a written agreement documenting the agreement
implied periodic tenancy
where there is nothing set out in writing, but the certain term arises
by looking objectively at all relevant circumstances including payment and acceptance of rent on
a periodic basis.
what does the term of the periodic tenancy depend upon
depends upon the period by reference to which the rent is calculated, rather than the intervals at which it is payable
(this may often be the same)
if the rent is £12,000pa, the term will be YEARLY. This means notice to quit must be served six months before the term ends.