Essential requirements of a lease Flashcards
What is a licence?
Personal premission to be on land
How will courts determine whether there is a lease or a licence?
Substance not label
What are the requirements of a lease?
- Certainty of term
- Exclusive possession
- Correct formalities
What are the types of certainties of term?
Fixed
Periodic
How may there be an implied periodic term?
look objectively at relevant circumstances including payment/acceptance of rent on periodic basis
How is the length of the term calculated for periodic terms?
period which rent calculated
What was the effect of the Prudential case and uncertain terms in leases?
Uncertain term may not be lease but an implied periodic tenancy may arise by virtue of possession and payment of rent
What is exclusive possession?
Right to exclude all others
What are the facts that indicate that there is not exclusive possession?
a) Landlord retains key and has right of access
b) Landlord provides services
c) Sharing clause
d) Landlord retains right to relocate tenant
When will the courts be more likely to accept a licence rather than a lease?
Business tenancies
What determines whether multiple occupiers hold a joint tenancy lease?
- Unity of possession: no exclusive use of any part
- Unity of interest: same term, same conditions, jointly liable for rent
- Unity of time: start at same time
- Unity of title: same document or separate but identical and interdependent
If the four unities do not exist and neither do individual tenancies, where there are multiple occupiers what can there only be?
Individual licensees
What are the factors that defeat a lease?
Intention to create legal relations
Service occupancies
When may there be a lack of intention to create legal relations?
Family arrangement, act of friendship or generosity
what may evidence an intention to create legal relations even where there is a family relationship?
degree of formality and/or market rent paid
What is considered a service occupancy?
required to live in premises for better performance of duties as an employee
If there is rent paid, will a service occupancy be a lease?
No
What are the formalities for a legal lease?
Deed –
* Clear on face intended to be deed
* Validly executed
* Delivered
Based on the term of a legal lease, how are the interests noted?
Over 7 years = registration
7 years or less = overriding interest
What is the short lease exception for the formalities for legal leases?
lease 3 years or less need not be by deed where –
a) Takes effect in possession
b) Granted at best rent
c) Not subject to fine or premium
What are the types of arrangements that fall into the short lease exception?
- Short fixed term leases
- Express periodic tenancies
- Implied periodic tenancies
What are the formalities for an equitable lease?
- In writing
- Contains all agreed terms
- Signed by both parties
- Remedy of specific performance available
