Leases Flashcards
Give the two bare requirements for a lease?
- Certainty of term
- Exclusive possession
Bruton v London and Quadrant Housing Trust [2000] 1 AC 406
Facts: A licensee of a block of flats purported to give a homeless person a license over one of the flats. HL found the homeless person to have a ‘lease’ since he enjoyed exclusive possession for a term at a rent. However the ‘lease’ only amounted to a mere contractual arrangement, not a proprietary interest.
Principle: An apparent distinction exists between a lease which amounts to a mere contractual arrangement and a term of years which is a proprietary interest.
What are the two stages for assessing whether an agreement qualifies a lease?
1) Consider if at face value it satfiifes EP and certainty of term. If yes -> Lease
2) If no consider whether features preventing it from being a lease are a sham or pretence
Street v Mountford [1985] AC 809
Facts:
Occupancy was based unpin a ‘license agreement’ which gave M, in return for a weekly ‘license fee’ , exclusive occupancy of self contained flat. Despite the agreement contain a clause stating a tenancy was not intend to arise, M was found to have a tenancy.
Principle: There are 3 (now only 2 following Ashburn which removed ‘rent’) requirements for tenancy:
- Exclusive Posession
- Certainty of Term
Define Certainty of term (2)
- Fixed and maximum duration -
- Certain start date (although see s.149 LPA 1925); when nothing is specified it is assumed the lease commences upon the tenant taking possession.
Aslan v Murphy [1990] 1 WLR 766
Facts:
Mr Murphy occupied a small basement room owned by Mr Aslan. The agreement stated that the licensor was not willing to grant the licensee exclusive possession of any part of the room and that the licensor may permit others to use the room. The rent was referred to as a licence fee. The agreement also reserved Mr Aslan the right to retain keys. Mr Aslan was to provide services in the form of cleaning the room, rubbish collection, provision of and laundering of bed linen. However, in practice no others were permitted to enter the room and no services were actually provided.
Held to be a lease
Reasoning: The provisions relating to exclusive possession, permitting others to use the room and the provisions for services were a SHAM for the sole purpose of defeating the Rent Act.
Principles Look to the nature of the accommodation when considering whether a clause excluding EP is real or sham Retention of keys by landlord does not automatically prevent tenancy.
Antoniades v Villiers, [1990] 1 AC 417; 52 MLR 408
Facts:
A co-habiting coupled signed separate but identical licence agreements contemporaneously giving them the right to occupy a small one bedroom flat. The agreement stipulated exclusive possession had not been granted and the licensor had the ability to invite other to share the flat.
Held to be a lease
Reasoning:
The non-granting of EP and ability to invite others to share was held to be SHAM because:
- Occupiers were a quasi-matrimonial couple with intentionto create family home
- Flat was too small to share with others - Clause itslef specified ‘NO MAXIMUM NUMBER therefore if real any number of person could be introduced to share with the couple -
- Clause to introduce others had never been exercised
Prinicples:
- Look to the nature of the accommodation and the relationship between the occupiers when considering whether a clauses excluding exclusive possession is real or a sham.
- Signing separate agreements will not defeat unity of title provided the agreements can be seen as interdependent (one occupant would not have signed their agreement without the other signing theirs)
AG Securities v Vaughan [1990] 1 AC 417; 52 MLR 408
Facts:
Four separate license agreements had been signed on different days relating to the occupancy of a four-bedroom flat. Each agreement stipulated for different payment amounts and each excluded exclusive possession and stipulated sharing with a maximum of three other people.
Held to be licenses
Principle Look to the nature of the accommodation and the relationship between the occupiers when considering whether a clause excluding exclusive possession is real or a share. All FOUR UNITIES must exist for a joint tenancy to arise.
What are the additional requirements required for a lease to arrive in joint-tenancy ( 4 unities)
FOUR UNITIES
- POSSESSION - all occupiers entitled to posses whole property
- TITLE - all occupiers obtain interest by virtue of the same doc, however what case gives an exception to this?
- TIME - occupants must obtain their interest in the prop simultaneously
- INTEREST - occupants must occupy the prop with the same rights and obligations for which they are jointly liable. Which case gives an example of this?
Mikeover v Brady [1989] 3 All ER 618
Each occupant was found to be liable for just his own monthly payment. Therefore no unity of interest was found to exist and occupancy of the accommodation was based upon a license.
Stribling v Wickham [1989] 2 EGLR 35
Facts: 3 friends entered into seperate agreement to share P’s flat. Agreement included clause denying EP adn giving landlord permissino to invite other people to share the flat.
Held not to be a lease.
Agreement was NOT a sham. . In “substance and reality” it was a case of contractual licence.The flat’s nature was to have a “shifting population” which makes it impossible to consider it a joint tenancy.
LPA 1925 s 149(3)
Certainty of start date; if nothing specified it is assumed that lease commences upon the tenant taking possession Start date can be delayed by up to 21 years
What is the policy argument dictating the court’s willingness to strike down pretence clauses?
Freedom of contract
vs.
Protecting the occupier (inequality of bargaining power).
FOC favoured in commercial instances. Occupier favoured in domestic instances.
Berrisford v Mexfield Housing Co-operative Ltd [2012] 1 AC 955
PLEASE CHECK THIS FURTHER
Facts: UKSC found that an uncertain term should be treated as a lease for life and thus converted into a term for 90 years under s 149(6) LPA 1925 Analysis; UKSC expressed clear disapproval for the requirement of certainty of term suggesting that it should be abandoned altogether
Javad v Aqil [1991] 1 WLR 1007
Facts:
Both parties were in the process of negotiating a 10 year lease over land. During negotiations, the potential lessee was let into possession of the land, for which he paid quarterly. Negotiations broke down and the potential lessor sought to evict.The potential lessee refused to leave on the basis that his possession had created an implied quarterly periodic tenancy, which gave rise to protection under landlord and tenant legislation.
Issue: Had a periodic tenancy been implied
Decision: No
Reasoning:
- The potential lessee was merely a tenant at will. The parties had not intended for there to be anything more than this whilst formal negotiations were taking place.
- Although the payment of rent is a good indicator of an implied periodic tenancy, allowing possession during negotiations is a classic case giving rise to a tenancy at will.