Lease v Licence

Question 1

Street v Mountford

Answer 1

Lease if: exclusive possession, for a determinate term, at a rent (but rent is not really necessary); BUT for legal lease for less than 3yrs or less necessary - s54(2)LPA25

Question 2

Westminster City Council v Clarke

Answer 2

the construction of the term that Westminster could oblige C to change rooms defeated the exclusive possession. If he had exclusive possession, he could have stayed. It made it a licence because it lacked exclusive possession.

Question 3

Aslan v Murphy

Answer 3

the clause denying exclusive possession had no purpose other than to defeat the claimant’s exclusive possession → LEASE; the tenant is not entitled to exclusive possession – that is an avoidance provision and void; look at the substance, not the form

Question 4

AG Securities v Vaughn and Ors

Answer 4

4 tenants, each moving at different time; The company (AG Securities) attempted to terminate the agreement of the fourth and he claimed that acting together they all jointly held a lease and they therefore qualified for statutory protection. The HL held that they were all licensees. They didn’t hold EP together; no unity of time and unity of possession – no tenancy because lack of exclusive possession

Question 5

Antoniades v Villiers

Answer 5

Two tenants moved in at the same time and signed a tenancy agreement each at the same time. They were a couple. The HL held that they were tenants jointly because (per Lord Templeman at 460) their tenancy agreements were interdependent: either they would have moved in together or not at all.

Question 6

Leases taking effect in time

Answer 6

1) In possession (immediately)
2) in reversion (in future), start: within 21yrs of creation

No requirement about length of duration, but must be certain, lease for lifetime void

Payment of rent not required for creation

Question 7

Types of leases

Answer 7

Fixed - granted for fix term i.e. 10 years

Periodic - for shorter term (weekly, monthly), renewed automatically unless notice by either party

Question 8

Non-leases

Answer 8

Tenancies at will & licenses

Question 9

Facchini v Bryson

Answer 9

Tenancy will not be created even if meets Street requirements,

1) where no intention to create legal relations,
2) service occupancies (i.e. in place only to do his work, employee)
3) lodgers (guest in house that pays)

Question 10

Landlord’s authority to grant the lease

Answer 10

1) Legal authority to grant premises i.e. not subject to covenant prohibiting so
2) Sufficient interest in property, i.e. if has 50y lease, can not sublet for 100y xD

Question 11

Failure to create lease by deed

Answer 11

1) Equitable lease (Walsh v Lonsdale) though must comply with formalities of contract s2 LPMPA89
2) Implied legal periodic tenancy, if tenant enters into possession and pays rent on regular basis

Question 12

Termination of lease

Answer 12

1) Effluxion of time
2) Notice to quit
3) Surrender
4) Merger
5) Break clause
6) Forfeiture

Question 13

Effluxion of time

Answer 13

where the lease is for fixed term, then it ends automatically at the end of the term = effluxion of time

Question 14

Notice to quite

Answer 14

Where the lease is periodic in nature, either party may serve notice to quit to end the tenancy

Question 15

Surrender

Answer 15

Where tenant forms an agreement with landlord to give up their lease before the end of term

Question 16

Merger

Answer 16

Where tenant buys landlord’s interest in property, thus becoming their own landlord; the lease will cease to exist

Question 17

Break clause

Answer 17

If there is a break clause in the lease, either party may be allowed to bring the lease to an end before the end of the term by the service of notice on the other at specified times

Question 18

Forfeiture

Answer 18

Right of landlord to re-enter and reclaim possession of premises where tenant is in breach of covenant(s) in the lease; not automatic, must be reserved in terms of lease;
Methods:
1) Court order
2) Peaceable re-entry

Question 19

Peaceable re-entry

Answer 19

L literally retakes possession by i.e. changing keys, could be charged with offence in criminal law, thus rare

Question 20

Forfeiture if not paying rent

Answer 20

L must first make formal demand for rent, if not paid then can legally take possession (unless not exempted in lease terms) = forfeit immediately

Question 21

Forfeiture in breach of other covenants

Answer 21

L first must serve notice under s 146 LPA25, notice must:

1) Specify the breach
2) Require B to be remedied with reasonable time if capable of remedy
3) Require tenant to pay compensation for the breach, if L requires it

Bs of positive covenants are remediable; negative - not
If remediable, L must give T a reasonable time for that

Question 22

Relief from forfeiture

Answer 22

• if for non-payment: must pay all areas, has up to 6m from granting forfeiture, up to court’s discretion
• if for other, tenant can only seek relief before L re-enters premises; no standard right to apply, depends on circumstances

Question 23

Waiver of forfeiture

Answer 23

L will los right to forfeit if aware of breaches acts as recognising continuance of the lease

Once waived, L cannot forfeit for same one (‘breach once and for all’) i.e. breach of covenant not to assign; if one like to repair premises, cannot forfeit only for the rental period for which rent was received

Question 24

Ashburn Anstalt v Arnold

Answer 24

establishes that in English law rent is not required for the creation of a tenancy

Question 25

Prudential Assurance v London Residuary Body

Answer 25

A grant for an uncertain term does not create a lease

Question 26

London Borough of Southwark v Mills

Answer 26

nuisance of neighbours, sued Council for authorising it; failed; use of flat (walking, peeing) reasonable

Question 27

Mexfield Housing Co-operative Ltd v Berrisford

Answer 27

order granting possession; T appealed; restricted right of L to recover possession, T argued lease terms worded to create a lease for life
T succeed; Despite the agreement being from month to month, it was clearly intended only to be determinable under the relative provisions. A periodic tenancy with an invalid fetter on the landlord’s right to determine should be treated in the same way as a tenancy for a fixed, if indeterminate, term.