Leases

Question 1

What is a lease?

Answer 1

• s205 LPA 1925 definition.

Common law characteristics set out in Street v Mountford.

1) Exclusive possession
2) Certainty of maximum duration
3) Rent (usual but not essential)

Question 2

1) EXCLUSIVE POSSESSION

What is it?

Answer 2

Of ‘first importance’ in determining whether an occupier is a tenant (Lord Templeman). Key element in distinction between lease and licence.

Important as licence is merely permission for occupier to be on land, does not confer proprietary rights.

Question 3

Exclusive possession:

Street v Mountford
How do the courts decide?

Answer 3

Street v Mountford

• S granted M right to stay in premises for £37 per week. Labelled as licence but facts suggested that it was lease. - Said would provide cleaning services but never did.
• Only retained limited rights of inspection and maintenance.

Look at substance not form. Court will look at the true bargain and assess the behaviour of the parties to determine their true intentions behind the agreement. Sham terms/pretend device will be disregarded.

Question 4

EP: 1) Labels

Answer 4

Street v Mountford

Irrelevant if the agreement labelled as licence because the court will look at substance not form

Question 5

EP: 2) Joint/multiple occupants

PITT

Answer 5

PITT

All occupants need to have EP together, must show 4 unities.

Possession = all occupants need to be able to access all parts of the premises. ie if person 1 is restricted to bedroom 1 etc. no EP

Interest = occupants jointly bear all obligations and rights. ie. if one occupant is unable to pay their share of the rent the others would have to pay more

Title = the occupants derive their interest from the same document

Time = the occupants acquired their interest at the same time

Question 6

AG Securities v Vaughan (multiple occupants)

Answer 6

4 occupants shared 4 bedroom mansion flat
All signed separate agreements (no unity of title)
Arrived to accommodation separately (no unity of time)
Were only liable for their share of the rent (no unity of interest)
Landlord could end the agreement any time and introduce another person.

It was a licence and not lease. Nothing to indicate they were sham terms.

Question 7

Antoniades v Villiers (multiple occupants)

Answer 7

Couple signed separate but IDENTICAL agreements to occupy a one bedroom flat.
Terms that landlord could share the room with them and introduce another person were clearly sham terms.

The fact the couple chose a double bed was indicative of fact they intended to occupy jointly. The agreements were held to be interdependent.

Question 8

Mikeover v Brady (multiple occupants)

Answer 8

Similar facts to Antoniades but the landlord has genuinely intended that the occupants are liable for their own share of the rent only as when one left he only asked the other person for their share of the rent.

Licence.

Question 9

Stribling v Wickham

Answer 9

Gave further guidance in determining whether joint tenancy

1) Any relationship between prospective occupiers
2) Course of negotiations
3) Nature and extent of accommodation
4) Intended and actual mode of occupation

Question 10

EP: 3) Right to introduce another person

Answer 10

If landlord can introduce another person then no EP

AG Securities v Vaughan
- nothing to indicate sham term

Antoniades v Villiers
- the space/size of the accommodation meant it was not possible to introduce another person. Clearly a sham term.

Question 11

EP: 4) Provision of services

Answer 11

If landlord retains right to unrestricted access to provide services then no EP.

Question 12

EP 4) Provision of services

Two tests of unrestricted access

Answer 12

Aslan v Murphy =

• did LL actually exercise the right to enter and provide services?
• term in agreement that LL would enter any time to provide cleaning services and fresh linen. On facts never occurred, sham term.

Crancour v Da Silvaesa

• what degree of access did LL retain to provide services? Have to look at surrounding circumstances.
• LL to provide cleaning services, rubbish collection and fresh linen. Licence not lease.

Question 13

EP 4) Provision of services

Refusal of services?

Answer 13

Eurotemp

- refusal of services where the LL is contractually obliged to provide does not mean occupier will have EP

Question 14

Huwyler v Ruddy

Answer 14

Provision of cleaning services for 20 mins a week amounted to unrestricted access because LL could let himself in

The fact the services stopped was not relevant as the original terms of the agreement continued

Question 15

Vandersteen v Agius

Answer 15

Occupant used bottom of house as a clinic and landlord lived upstairs.

Entered into separate agreement for provision of cleaning services for the clinic for a yearly sum.

Did not affect grant of EP as separate agreement.

Question 16

EP 5) Retention of keys

Answer 16

Aslan v Murphy
- retention of keys per se will not negate EP unless landlord uses them to enter the property freely

Street v Mountford
- retaining keys to exercise limited rights to enter and view the property does not necessarily negate EP

Question 17

6) Further examples

Answer 17

Aslan v Murphy
- term to leave 90 mins a day was a sham

Duke v Wynn

• under true bargain occupants had a lease. Despite LL saying she wanted them on temp basis she did not intend to act on the terms
• just wanted flexibility in terms of what to do for property

Question 18

Special cases where no lease

Answer 18

Employees
Smith v Sedgehill
- where occupant occupies property for purposes of employment then no lease even if EP

Family / friends
Faccini v Bryson
- where there seems to be family arrangement, act of kindness or generosity that shows no intention to create legal relations

Errington v Errington Woods
- father did not intend to create legal relations with son and daughter in law

Question 19

2) CERTAINTY OF MAXIMUM DURATION

Key case + commentary

Answer 19

Prudential Assurance v London

• needs to be certain start and end date
• agreement was to end when council needed road for road widening
• no lease
• decision met with reluctance by some judges
• Lord BW: result ‘bizarre’ and no one has produced a satisfactory rationale for this rule

Williams Cambridge Law Journal - argues reason for certainty rule is because of feudal system - in theory the king owns all of the land and if you have uncertainty the king would not be able to reclaim land

Question 20

Lace v Chantler

Answer 20

Lease was to go on for duration of second world war.

Uncertain duration.

Question 21

Mexfield v Berrisford

Answer 21

If lease intended to be for life, can be construed as 90 year life time lease

B sold property to Mexfield as part of debt relief, so she would lease it back so can stay in home. But wanted to evict from property. No end date - uncertainty. Judges managed to get around rule - life interest LPA 1925, transformed into 90 year lease which prevented eviction.

Commentary : Susan - what would happen if it was a company? Could not have life interest. What are the rights and obligations in 90 yr lease?

Question 22

Periodic tenancies and certainty of duration

Answer 22

Periodic tenancies (leases of indefinite term) are saved from being uncertain by virtue of the fact either parties can bring the agreement to an end by serving notice

Question 23

3) RENT

Case?

Answer 23

Ashburn v Arnold
- rent is merely a pointer to a lease, not essential

Is there any other form of remuneration?

Question 24

4) FORMALITIES

Answer 24

Where lease is less than 3 years does not need to comply with formalities s52(d) and s54(2) LPA 1925

Over 3 years requires deed

Failure to use deed? If there is a valid contract may be an equitable lease if formalities in s2 LP(MP)A 1989 met
- more vulnerable for claimant

Question 25

5) COMMON IMPLIED COVENANTS OF THE LANDLORD

Answer 25

1) Quiet enjoyment
2) Not to make land unfit for purposes granted
3) Covenants to repair

Question 26

Quiet enjoyment

Answer 26

Common law covenant that LL will not interfere with the peaceful possession of the land (Budd v Daniel)

Kenny v Preen

• LL tried to get rid of tenant by banging on doors, sending threatening letters and scattering her belongings
• breach of covenant

Southwark LBC v Mills

• C complained of noise coming from neighbouring flats
• No breach as caused by poorly constructed walls
• LL did not interfere with lawful enjoyment, problem was there before start of tenancy

Question 27

Not to make land unfit for purpose

Answer 27

Browne v Flower
- LL erected iron staircase outside of flat. Could sometimes see through the window. No breach

Harmer v Jumbil

• 21 year lease granted to C to store explosives
• LL let neighbouring property for purposes of mining
• C sought injunction

Question 28

Covenants to repair

- the three main covenants and cases

Answer 28

3 main covenants

i) Fit for human habitation at start of tenancy
Sarson v Roberts
- applies to start of tenancy only

Smith v Marrable
- premises had bug infestation, breach

ii) Keep common areas in good repair
Liverpool CC v Irwin
- term necessary to give agreement business efficacy
- council obliged to maintain common areas of access and stairways so that tenants could access flats

iii) Keep dwelling house in repair where lease less than 7 years
s11 Landlord and Tenants Act 1985

meaning of repair:
Lee v Leeds CC
- took restrictive approach
- condensation and mould caused by poorly constructed windows was not a structural problem
- the windows were poorly built from start
- public sector, would it have been diff if private sector?

meaning of structure and exterior:
Edwards v Kamasary
- question of fact
- if disrepair on inside LL obliged to repair when tenant gives notice
- if disrepair on outside LL obliged to repair whether T gives notice or not
- front path way leading up to house constituted structure