Leases: Exclusive Possession

Question 1

When will an occupier have exclusive possession?

Answer 1

This is a question of fact

Substance of the agreement has to be examined

Scenarios that indicate that occupier does not have exclusive possession are:

1. landlord retains a key and has right of access
2. landlord provides services
3. there is a sharing clause

Question 2

What is the importance of the landlord retaining the key?

Answer 2

It is the purpose for which the key is retained that matters

eg if for use in emergencies - you may still have exclusive posession

Court will look to see if any right of access the landlord has is restricted or unrestricted

Question 3

What happens where the landlord provides services?

Answer 3

Then this is a license and not a tenancy

Services include cleaning

Occupier may be a lodger provided the services are actually carried out and a lodger will never enjoy exclusive possession of the premises

Question 4

What if there is a sharing clause?

Answer 4

if landlord reserves the right to share the property with the occupiers or right to introduce others to share that may mean that there is no exclusive possession as the occupier cannot exclude whoever landlord is able to introduce.

Question 5

What are the circumstances that can indicate that the sharing clause is a sham?

Answer 5

1. The size and nature of the accommodation
   - would it be realistic to introduce others into the accommodation given its size?
2. Relationship between the occupiers
   - would it be appropriate to introduce another to share given the relationship between the parties?
3. The wording of the clause
   - how widely it is drafted - the wider the more likely it is to be a sham
4. Whether the clause has ever been exercised
   - if not then this may indicate it is a sham

Question 6

What is the impact of certainty of term on business tenants?

Answer 6

They must also show they have exclusive posession

Business tenants, BUT NOT LICENSEES, are protected by the Landlord and Tenant Act 1954 - which entitles them to remain in the premises at the end of the lease term and request a new lease

The court will look to see if the landlord retains control over the property as a whole.

Question 7

What if the agreement contains a right for the landlord to relocate and move the tenant to alternative premises?

Answer 7

It will not be a lease