Introductory elements to a leases problem question Flashcards
(This may need alteration upon feedback)
What must I outline first?
That the problem question presented pertains to leases, one of the two estates in land which remain.
Upon acknowledging that the question concerns a type of estate, what must i do?
Define the two estates which still exist in England and Wales since 1925.
Where are they defined?
Section 1(1) of the Law and Property Act 1925 delineates the two estates in land capable of subsisting in England and Wales.
How are they defined?
The only estates in land which are capable of subsisting or of being conveyed or created at law are—
(a) An estate in fee simple absolute in possession;
(b) A term of years absolute.
More simply, how do we understand these terms?
More simply we understand these are our freehold and leasehold estates.
Much of our modern land law finds its origins in the reforms to the fuedal sysytem imposed by who?
William the Conqueror following his conquest in 1066.
In his reforms post 1066, what was determined?
It was determined that all land was owned by the King.
Essentially, the kind retained ownership and the terms on which rights were enjoyed on land were reffered to as what?
Tenure.
Therefore, the ultimate lord paramount from which our freehold and leasehold estates are carved remains who?
The Crown Estate.
Today, is tenure relevant?
Today, the doctrine of tenure has little practical importance but remains the theoretical basis on which land is held.
This shows a histroical hangover of what two doctrines?
The doctrines of bona vacantia and escheat.
The concept of ‘an estate’ flows from what?
The concept of ‘an estate’ flows directly from the idea of tenure, if citizens ‘hold’ land, they need to know how long for.
Therefore, what is an estate in land?
An estate in land describes how long a person is entitled to enjoy rights of use and possession of that land.
How do Megarry and Wade in ‘the law of real property’ explain an estate?
As Megarry and Wade explain ‘an estate is an interest in land for some particular duration’.
In the contemporary context, it is widely acknowledged a leasehold estate is typically carved from what?
In the contemporary context, it is widely acknowledged a leasehold estate is typically carved from the freehold.
This is how leaseholds arise, they are carved out of another estate in land.
In the Walsingham case (1573), what was it said an estate reflects?
The land itself is one thing, and the estate in the land is another thing, for an estate reflects a time in land or land in time’.
With what intentions in modern society are leaseholds carved from freeholds?
A leasehold estate is typically carved from the freehold, often with the intention of generating value.
Who is supportive of this intention?
Professor Birks.
A leasehold can be interpreted as a type of estate in the land which signifies a form of ‘ownership’ for a specified duration, in regard to land ownership, how does Birks suggest we should consider land?
As illustrated by Birks, it is highly beneficial to understand ownership of land in consideration to slices of time.
To consider ownership in slices of time allows for what?
To consider ownership in slices of time allows for a broader, more dynamic view of property rights, where ownership can be viewed as a spectrum of rights distributed over time.
To recap, what is a lease?
An estate describes enjoyment of the land in time; a leasehold denoted enjoyment of land for a specified period.
A lease is commonly understood where a landowner permits another rperson to use their land for a period of time, unually in return of rent.
While leases are defined under common law and statute, what is the most insightful approach to understanding their nature?
While leases are defined under common law and statute, the most insightful approach to their nature is by reference to Lord Templeman’s renowned judgement in Street v Mountford (1985).
In his decision, Lord Templeman articulated three fundamental characteristics of a lease, what are these often referred too?
‘Lord Templeman hallmarks’
What did Lord Templeman say in his classic statement regarding leases and their nature?
Lord Templeman,
“My Lords, there is no doubt that the traditional distinction between a tenancy and a licence of land lay in the grant of land for a term at a rent with exclusive possession”
Regarded as the starting point for consideration of a modern law lease, Lord Templeman provides us with three essential elements of a lease, what are they?
Exclusive possession, certain term, rent.
What else did he state in his famous judgement?
“To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodic payments”.
These elements serve as critical indicators to distinguish a lease from a licence, why is this important?
Because, as Vaughan articulates licenses ‘passeth no interest nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful’.
Such distinction is therefore significant because it indicates what?
Such distinction is therefore significant as it indicates licenses are purely personal interests whereas leases are proprietary.
How must I conclude my introduction?
By outlining who i will advise and what i will advise them on.
Example: I will advise Emma and Chiso as to whether they have a lease or a licence by reference to their “licence agreements” for 3 Harlequin Drive.
