Licences/Leases Flashcards
What does Bright (2007) say about leases?
Leases can be short-term or long term.
With shorter-term leases, the leaseholder is likely to be more dependent on the landlord for maintenance.
What is the leading case on the requirements of leases? Who was the important judge and what did he say?
Street v Mountford - Lord Templeman - gave three requirements for finding a lease;
- It confers exclusive possession of the land.
- It must be for a fixed term.
- It must be in return for a ‘premium’.
What did Lord Templeman say about ‘lodgers’ in Street v Mountford? Is this a good test?
If a person appears to be the landlord’s ‘lodger’, he cannot have exclusive possession.
It is not a very good test, it can only be applied to residential property and it does not have clearly defined boundaries.
What is the key difference between licences and leases?
Licences are property rights, governed by S1(1)(b) LPA 1925.
Licences are contractual rights.
What does Ashburn Anstalt v Arnold say about the premium?
It does not necessarily have to take the form of money.
What issue relating to leases came up in Hunter v Canary Wharf?
In order to claim in nuisance (and to make other claims) you need to hold a property right in the land - Lord Goff.
Why did Lord Templeman reach the decision he did in Street v Mountford?
Street had contracted out of the Rent Act 1977 so as to avoid the statutory requirement of a fair housing tribunal.
The House of Lords saw it as unjust that people could contract out of the law by granting leases and then telling people that they are not in fact leases - sham transactions.
You can’t create a five-pronged digging tool (a fork) and call it a spade - not the best reasoning as the presence or absence of exclusive possession is not necessarily this determinative.
What is a ‘pretence’? What could this look like?
Originally called a ‘sham’ in Street v Mountford, but now referred to as a ‘pretence’ following Antoniades.
An artificial transaction which has the objective of disguising the grant of a tenancy so as to exclude statutory duties.
In Antoniades this took the form of entering into two separate licence agreements
Equally a clause allowing a further person to move in was clearly in place to disguise the grant of a tenancy - there was only one bedroom and it would be physically impossible for someone else to move in!
What did Prudential Assurance v London Residuary Body say about the term of the lease?
A lease must be for a fixed maximum duration.
Lord Browne-Wilkinson - an uncertain period of time such as ‘until further notice’ cannot constitute a fixed period.
What are the important facets of exclusive possession? How does Lord Templeman see things differently?
To have exclusive possession means that you have the right to occupy the property on your own if you wish.
There is not exclusive possession if you need permission to invite people over or if the owner can enter the property at any time.
In Antoniades v Villiers, Lord Templeman suggested that there should still be exclusive possession even if there are provisions in the agreement contradictory to this right.
How was the decision in Westminster CC v Clarke different from that in Street v Mountford?
The occupier had to share his room with others so could not be said to have exclusive possession.
What are the two important types of licences?
- Bare licence - an invitation onto the land.
2. Contractual licence - a licence in return for consideration i.e. a gym membership.
Why would you rather have a lease over a licence?
King v David Allen - established that contractual (and bare) licences don’t bind third parties due to privity of contract.
Whereas a lease is a property right enforceable against everybody else.
Leaseholders have statutory rights i.e. those under the Housing Act 1988.
Give an example of a statutory protection granted to leaseholders under the Housing Act 1988.
Leaseholders cannot be evicted without due process.
Explain the landlord’s duty. Why is it not available to a licence-holder?
Under S11(c) Landlords and Tenancy Act 1985, a tenant can call upon the landlord to upkeep installations in the house i.e. heating and water.
Only the holder of a lease can invoke the landlord’s duty.
