Land Topics Leases

Question 1

What are the essential characteristics of a lease?

Answer 1

1. certainty of time
   - not certain if dependant on outside event (end of war, death of tenant etc.)
   - fixed term or periodic term
2. Exclusive possession
   - right to exclude all including landlord

Question 1

What might court consider for exclusive possession?

Answer 1

1. Landlord retains keys and has right of access
   - purpose of key matters (if for emergency then still exclusive possession)
   - if right of access is restricted (eg for repairs) then still exclusive possession
2. Landlord Provides Services
   - such as cleaning, changing bed etc.
   - defeats exclusive possession if carried out
3. Sharing Clause
   - courts to look at if it is a sham (if yes then will be lease)
   - would it be reasonable for others to be introduced (size, nature of the building)

Question 2

When might exclusive possession not be enough to show lease?

Answer 2

1. occupancy based on friendship / family generosity with no intention to create legal relations
2. occupancy based on services as an employee where provision of occupation is for better performance of employees duties

Question 3

When will multiple occupiers be found to have a lease?

Answer 3

Either

1. each having separate leases
   - must have exclusive possession of defined area
   - licence may apply to common areas
2. Joint Tenant Between them
   - together they are single entity entitled to exclusive possession
   - must share 4 unities (possession of whole of property, obtain interest from same title, must obtain interest at same time, must have same rights and obligations)

Question 4

If something is not a lease what is it?

Answer 4

Licence
- Mere right to occupy property, normally for specific purpose. Can be cancelled at short notice and generally provide fewer rights (no exclusive possession, no legal interest in land)

Question 5

What is a fixed term tenancy?

Answer 5

• granted for a fixed amount of time from the outset
• cannot be terminated subject to a break clause or breach of covenant

Question 6

What is a periodic tenancy? How can it be brought to an end?

Answer 6

Granted initially for certain period which automatically renews until it is brought to an end.
- may be implied if person takes possession and pays rent by reference to a period

Brought to an end by notice (typically of same period as lease)

EXCEPTION
- if period is 1 year = notice 6 months
- if for a dwelling = notice of at least 4 weeks

Question 7

What is a tenancy at will?

Answer 7

Personal relationship between parties which either party can terminate at will

If tenants starts paying periodic rent then periodic tenancy may be implied
- only if there is sufficient intuitions

Often used when tenants needs to occupy immeadiatly but negotiations are ongoing.

Question 8

Requirement to create a lease?

Answer 8

Legal Lease
- generally must be by deed
- if over 7 years must be registered (first time or subsequent)

Short Lease (up to 3 years)
- can be orally or in writing and will be legal if:
– tenant takes possession
– is at market price and tenant does not need to pay premium

Question 9

How can a short lease be assigned?

Answer 9

Only by deed

Question 10

When is an equitable lease created?

Answer 10

If there is a valid contract:
- in writing
- include all terms
- signed by parties

Failed Legal Lease
- over 7 years and not registered
- incorrectly executed deed

Should be Protected in Registers
- Unregistered Land: Class C(iv) Land Charge
- Registered Land: notice on charges register
- may give rise to overriding interest through actual occupation (subject to requirements)

Question 11

What rights can a tenant of an equitable lease claim?

Answer 11

Specific performance for breach of contract

Question 12

What are the requirements for assigning a lease?

Answer 12

Legal Lease
- deed (irrespective of term)
- registered if lease being assigned is already registered (regardless of of duration of term)
- registered if has 7 more years to run
(otherwise assigned lease will be equitable)

Equitable Lease
- in writing, signed by assignor

Question 13

When is a lease enforceable against 3rd parties Registered Land?

Answer 13

Legal
- if up to 7 years is an overriding interest
- if over 7 years only if notice on charges register

Equitable
- binding if no consideration
- otherwise must be entered as notice on charges register
- (may be part of overriding interest of person in actual occupation)

Question 14

When is a lease enforceable against 3rd parties Un-registered Land?

Answer 14

Legal
- always binding

Equitable
- binding if no consideration
- otherwise must be registered as C(iv) land charge