Leases & Licences *

Question 1

Why are leases safer than licences?

Answer 1

1. Leases create legal interest in the land, can bind 3rd parties
2. Protected by legislation
3. Gives exclusive possession. (vs permission to occupy)

Question 2

Requirements for a lease: [4]

[Street v Mountford]

Answer 2

1. Exclusive possession
2. At best rate
3. Term Certain
4. Formalities

Question 3

How can a licencee get protection?

Answer 3

If the contract is like a lease= courts will treat it as a lease.

If ≥ 6 months, tenant may seek protection from Landlord and Tenant Act 1954
(grants permission to stay on expiry and request renewal on same terms)

Question 4

An example of INDEPENDENT agreements (Hint: 4 rooms to separate individuals at different times and under independent agreements) [PRETENCE]

Answer 4

AG Securities v Vaughan

• Court will look into substance and reality of transaction (not just apparent form)

Question 5

Example of INTERDEPENDENT agreements (Hint: Unmarried couple, owner insisted they enter separate agreements w a clause letting the owner occupy the flat or nominate another to occupy the flat)

Answer 5

Antoniades v Villers

• Lease if all parties exclusive possession intended

Question 6

Example of UNITY OF INTEREST in agreements [NOT A JOINT LEASE] (Hint: Identical licences, one person wanted to move out and other couldn’t pay)

Answer 6

Mikeover Ltd v Brady

• 2 agreements imposed on each tenant individual and separate obligations
• If only exclusive possession but NO unity of interest and joint tenancy.

Question 7

“Contractual Lease” = tenancy creating proprietary interest

Lease can be created even where leasor does not have right to issue a lease

Answer 7

Bruton v London and Quadrant Housing Trust

• Agreement fulfilled all tenancy requirements.
• Tenancy creates interest (not other way)

Question 8

Leases granted out of a licence are revoked when the licence is removed (Related to Bruton)

Answer 8

Kay v Lambeth
• When Lambeth terminated LQ Housing Trust’s licence, tenancies granted were extinguished

• Sought to rely on Art8 ECHR

Question 9

Courts should consider proportionality of evicting a vulnerable tenant (high threshold for private owners)

Answer 9

McDonald v McDonald
• S21 Housing Act 1988 cannot allow proportionality-> go through s4 HRA

• S6 HRA (public authorities)
• S8 ECHR (respect for fam)

Question 10

[Exclusive possession][Grant to occupy}

Legal exclusive possession [Licensee] VS Legal right of exclusive possession [Tenant]

(Social policy cases for charities)

Answer 10

Watts v Stewart
• Almshouse can kick out tenants if inconsistent with its purpose

• Gray v Taylor- denial of security of tenure is a proportionate means for legitimate aim

Question 11

Property owners should be careful not to grant exclusive possession in theory AND practice

Answer 11

Camelot Guardian Management v Greg Roynon

Question 12

Formalities required for a lease?

Answer 12

— REGISTRATION —
• S27(1) Land Registration Act 2002
• Land Registration Rules 2003
• Creates a legal right

— IN WRITING —
• S2(1), (3) LPMPA 1989: In writing, signed by parties
• S53(1) LPA 1925
• Alone, it creates equitable right

— DEED —
• S52(1) LPA 1925: All conveyances void unless made by deed
• S1(2), (3) LPMPA 1989: Must be expressly a deed “on its face” and signed by drafter in the presence of witness, delivered by drafter

— PAROL —
• S54(1) LPA 1925: Alone, it creates an equitable right
• S54(2) LPA 1925: BUT creates legal right for leases equal or under 3 years at best rent
• With a deed, makes a legal right

Question 13

4 Unities for Joint Occupancy?

Answer 13

1. Possession
2. Interest
3. Time
4. Title

Question 14

[Term Certain] Uncertain terms are considered void (‘till the end of war’)

Answer 14

Lace v Chantler

Question 15

[Term Certain] Uncertain terms now until life (90 Years)

Answer 15

LPA s149(6)

Mexfield v Berrisford

Question 16

[Term Certain] Periodic term common law for yearly tenancy notice is 6 months + Term MUST be determinably certain

Answer 16

Prudential Assurance

• Lord Templeman: “A term…cannot be partly certain…and partly uncertain.”

Question 17

[Term Certain] Monthly periodic tenancies can quit by end of month + supports Prudential

Answer 17

Mexfield v Berrisford

Question 18

[Exclusive possession] Do retention of keys circumvent exclusive possession?

Answer 18

Aslan v Murphy
• if for limited purposes, does not negate EP.

• Labelling agreement as a licence and retaining keys are not conclusive that an agreement is not a lease

Question 19

[Non-Exclusive Possession] Do limited-mobility clauses circumvent EP?

Answer 19

Clarke

• Yes; restrictions on his mobility and ability to have visitors enforced that he only had a licence

Question 20

[Pretence] Can LL increase rent with the intent to evict?

Answer 20

Bankway Properties v Pensfold-Dunsford
• CoA: Clause to raise rent drastically after 2 years not genuine

• Inconsistent w purposes of statutory protection (housing act)

Question 21

[Grant to Occupy]

Occupier requires property to enable them to perform duties better

Answer 21

Norris v Checksfield
• Service occupancy does not equate to a tenancy

• Test: Whether occupier needs the property to perform duties better