Leasehold v License, requirements Flashcards
‘Term of years’
LPA 1925, s. 1 requires that a leasehold estate should be for a ‘term of years’ - a defined period.
LPA 1925 205(1): “less than a year, or for a year or years and a fraction of a year or from year to year.”
Smallwood v Shephards [1895] - legal lease could be create for a period of three successive bank holidays, three separate days.
Periodic tenancy
Runs indefinitely, period to period, until one of the parties wishes to discontinue.
House of Lords in Hammersmith LBC v Monk [1992]: “the tenancy continues no further than the parties have already impliedly agreed upon by their omission to serve notice to quit.”
Basic requirements for a lease, (3):
LPA defines a lease as: ‘the grant of a right to the exclusive possession of land for a determinate term less than that which the grantor has himself in the land.’
1) Exclusive possession;
2) Determinate term;
3) Term less than that of the grantor.
Landlord attempting to avoid statutory requirements of lease, despite basic requirements met:
Street v Mountford [1985] - House of Lords rejected the view that the parties’ intention to create a license was of importance. If the landowner had agreed to grant the occupier exclusive possession for a term, he would have granted a lease even if the contract stipulated it was a license.
Lord Templeman: “if the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy.”
So, tenant protected by Rent Acts.
Cannot be a lease if does not meet basic requirements, opposite to Street v Mountford:
Berrisford v Mexfield Housing Co-operative Ltd [2011] - Supreme Court held that due to lack of a determinate term, would take effect as a license despite being described as a lease.
(1) Exclusive possession:
Exclusive possession is the right to use premises to the exclusion of all others, including the landlord himself.
Street v Mountford, Lord Templeman said: “a tenant armed with exclusive possession can keep out strangers and keep out the landlord.”
(2) Determinate term:
LPA 1925 requires that a leasehold estate should be for a ‘term’, definite.
Must have a definite beginning and end - Lace v Chantler [1944] (‘duration of the war’).
Periodic tenancy allowed - Prudential Assurance v London Residuary Board [1972] (as if both parties made a new agreement at the end of each term for the next term), if fetters power of landlord to determine at the end, is inconsistent with requirement of a determinate term.
Creation of leases:
Longer than seven years
- LPA 25 s. 52(1), must be granted by a deed;
- registered: register on landlord’s title; unregistered: triggers compulsory first registration.
Short leases (less than three) - LPA 25 s. 54(2), may be granted orally or in writing, all other longer lengths in writing.
Legal v equitable lease:
Walsh v Lonsdale - a long lease was granted but not by deed. Thus only equitable, can be enforced based on the maxim that ‘equity looks on that as done which ought to be done.’ Agreement for a lease can grant a valid lease.
Must fit requirements of LPA (MP) Act 1989.
Supreme Court Judicature Acts, now contained in the Supreme Court Act 1981, held that where the rules of law and equity conflict, the equitable rule should prevail.
Antoniades v Villiers
A couple entered into two separate but identical agreements under which they were given the right to occupy rooms and each had separate responsibility for half of the rent. Agreement provided they were to use the rooms either in common with the owner or with other licensees permitted by him.
Held that despite attempting to make it look like license agreements, it was in fact a lease. Vital point was they chose to share a double bed, together had exclusive possession.
Contrasts with AG Securities v Vaughan.
Where a landlord retains a set of keys?
This does not prevent a lease, Aslan v Murphy.
“Rent is not necessary for the creation of a tenancy…”
Ashburn Anstalt v Arnold
