Lease/Licence Flashcards
Lease/Licence - What is it
Lease is a proprietary right in land, right of exclusive possession enforceable against everyone, repair - may move obligation for repair to the landlord, statutory protection, binding on new landlord, security of tenure. Licence - personal only, easily terminated, can’t be enforced against 3rd party
Street v Mountford
Characteristics of a lease: certainty of term and exclusive possession. Plus look at the substance NOT the form
LPA 1925 s 205 (xxvii)
No need for rent
Ashburn v Astalt Arnold
Confirmed no need for rent
Lace v Chandler
For a fixed term lease, need to know the maximum duration of the term from when the lease starts. Until the end of WW2 not sufficient
Prudential Insurance v London
Until land needed for road widening - not fixed. But it was an implied periodic because payment was by reference to a defined period
Break clauses and forfeiture clauses
Can still be a fixed term
Berrisford v Mexfield
Uncertain lease interpreted as a lease for life = 90 year fixed term determinable on an uncertain event/death of grantee
Hammon v Farrow
Period will be by reference to agreed mode - monthly, weekly, etc. £500 per month = mostly periodic tenancy
Javad v Aqil
you won’t have periodic tenancy if the payments are temporarily arrangement - ‘until we sort out the lease’ - if there’s no intention to create periodic
Implied periodic
automatically renewed until either party serves a notice to quit - with nothing in writing but looking at:
i. Ladies Hosiery v Parker - agreed mode of payment used
ii. Barclays Wealth v Erimus - can also be other factors looked at by court
Aslan v Murphy
whether the L has they key - whether he can enter. If the L has the key for emergency - does not defeat possession. But if it has the right to enter the building whenever he wants - not exclusive possession. But if he never does - it’s a sham
AG Securities v Vaugh
Right to exclude others - here, genuine. Type - very large flat, 4 locking bedrooms, shared kitchen and bathroom. Relationship - 4 young professionals who answered adverts, didn’t know each other. Wording - introduce others up to a maximum of 4 and there were 4 bedrooms. Had been exercised - if they couldn’t find a new housemate he would find one for them and pay for adverts etc. Genuine reservation of the right, exclusive possession defeated
Antonaides v Villiers
Right to exclude others - here, sham so still exclusive possession. Clause saying landlord could introduce others and landlord himself could share. Type - 1 room bedsit. Relationship - unmarried couple, double bed. Wording - share introduce others without limit - just put in to defeat exclusive possession, unrealistic. Had never been exercised. “An air of complete unreality”
Marchant v Charters and Huwler v Ruddy
If landlord provides services and has unrestricted access to provide them, not exclusive if not sham. Lodger not a tenant - making beds or breakfast
Service occupancy defeats the lease - Norris v Checkserfield
coach driver - given accommodation given where he worked but he didn’t have driving licence. This was a service occupancy. There must be a factual nexus - the employment to do and the occupation must improve it thanks to the lease
Royal Philantropic v County
When housemaster at school, service occupancy because lived in school house. Then moved out of school house to another house owned by the school, and it was held that this was a perk of the job, not service occupancy. Won’t be a service occupancy if it’s just a perk of the job - employment needs to be material
No Intention to create legal relations - Facchini v Bryson
Although rent not essential - if not paid then it might mean that it’s just an act of generosity not a lease - no ICLR. Also family or friends relationship makes lease less likely
Heslop v Burns
No intention, letting them live there was complete act of generosity
Nunn v Dalrymple
No generosity, paid rent, did renovation works - there was ICLR
Exclusive possession and business tenancies
Street v Mountford is applicable to business tenancies. Affects security of tenure because tenants, but not licensees, are protected by Landlord and Tenant Act 1954.
Does the landlord retain control over the property? Construe documents as a whole. Court more likely to accept the label because parties have legal advice, should understand what they’re doing
Dresden Estates v Collinson
Agreement labelled as a license and landlord reserved right to require Collinson to move into another property. Looking at all circumstances and provisions, changing the property wasn’t compatible with tenancy, so only a license - no exclusive possession
Esso Petroleum v Fumergrange
3 separate agreements. Esso had high degree of control - dictate colour scheme, layout, what could be sold, terms of car wash, right to come in and inspect the accounts. Agreements looked at as one, the level of control meant was a license
Clear Channel v Manchester City Council
Advertising sites - looking at substance of arrangement was a license - business had chosen to enter an agreement called a license, they should have known what they were doing
Formalities/enforceability
If conclude it’s a lease, need to discuss whether it’s legal or equitable and whether it binds purchaser
s1(1)(b) LPA 1925
Lease is capable of being a legal interest in land
s52(1) LPA 1925
a lease of more than 3 years must be created by deed
s 54(2) LPA 1925
A lease 3 years or less doesn’t need to be created by deed to be legal if no premium, best rent, in possession
s1 LP(MP)A
Deed must be clear on face that deed, signed, witnessed, delivered
7+years
deed must be registered
Schedule 3 para 1 LRA 2002
A lease of 7 years or less is an overriding interest
Unregistered Land
automatically binding
Equitable
Agreement to create lease, failed legal lease, L has equitable estate
s2 LP(MP)A 1989
if a lease isn’t legal, will be equitable if it complies with this - contract
s32 LRA 2002
an equitable lease must be protected with a notice (reg.land)
Sched 3 para 2 LRA 2002
won’t need to be registered if overriding interest -if the lessee is in actual occupation
Unregistered land
register equitable lease with a C4 Land Charge
Repair
License - repair obligations unchanged; lease - may have moved from tenant to landlord
Regis Property v Dudley
Tenants won’t be normally liable for fair wear and tear but you are liable for limiting consequential damage
Lurcott v Wakely
Repair/renewal - repair includes replacement of a part of a property. Renewal means replacing all/substantial part
s13 LTA 1985
Applies to residential leases with terms of less than 7 years
s12 LTA 1985
restricts contracting out of s11 by imposing a repair covenant
s11 LTA 1985
landlord is obligated to repair the structure, exterior and installations of the building
Irvine v Moran
structure = anything which gives building its appearance, stability and shape
Grand v Gill
plaster = structure, wallpaper does not account
Douglas-Scott v Scorgie
roof of building = structure
Quick v Taff & Ely
windows apply
Edwards v Kumarasamy
uneven paving stone on the path outside is not part of the exterior
O’Brien v Robinson
L’s liability does not arise until they have notice of the defect
McGreal v Wake
Damage consequential to the original damage falls to the party liable for the original damage
s11(2)(a) LTA 1985
Landlord may be able to pass liability back to tenant if they fail to act in a tenant-like manner
Warren v Keen
Failure to act in tenant like manner = not doing the jobs you should do as owner, taking care of property
Remedies
If against tenant - damages. If landlord - specific performance
Jonathon Earle v Sotos Charambous
Damages can include for distress
Jeune v Queen’s Cross Properties
Specific performance for the landlord to carry out repairs
Rainbow Properties v Tokenhold
Specific performance available against tenant if landlord can’t do repairs
