Topic 4 - Leasehold Estates and Covenants

Question 1

LCLRA definition of a leasehold estate

Answer 1

An estate which arises when a tenancy is created for any period of time or any recurring period: captures leases which are a) in the future b) subject to another legal estate or interest c) is for an uncertain term

Question 2

Periodic tenancy

Answer 2

Lasts for a definite period of time; upon expiry renews automatically. Terminated with notice

Question 3

Leases for a term certain

Answer 3

Time frame is pre-determined and terminates automatically on expiry

Question 4

Lease; Lease/License distinction

Answer 4

Lease confers property rights

Question 5

License; Lease/License distinction

Answer 5

License confers a personal right

Question 6

Key features; Lease/License distinction

Answer 6

• Intention
• Exclusive Possession
• Payment of Rent

Question 7

Whipp v Mackey [1923]; Lease/License distinction

Answer 7

It is acceptable practice to look behind the label of a leasehold agreement.

Question 8

Irish Shell and BP Ltd v Costello Ltd [1981]; Lease/License distinction

Answer 8

Label was not conclusive and a conclusion could be drawn from practical use;
Exclusive possession, periodic payment of ‘hire fee’.
Found that the facts indicated a lease

Question 9

Street v. Mountford [1985] (HoL); Lease/License distinction

Answer 9

Presumption of a lease where there is exclusive possession.

Question 10

Governors of National Maternity Hospital v McGouran [1994] (HC); Lease/License distinction

Answer 10

Case regarding the running of a coffee shop in a hospital.
Intention: licence expressly denied her exclusive possession: acknowledgment of the right to do this was sufficient, did not have to be actually exercised.
Hospital was seen to continue to exercise domain over the the premise.

Question 11

Smith v Irish Rail [2002] HC; Lease/License distinction

Answer 11

Concerned a newsagent shop under arches in Tara station.
Can look past the intentions of the parties, even where the intent is unequivocal.
Looked at the agreement in practice and found that there was exclusive possession and licence fee which was held to be rent.
Held to be a lease.

Question 12

ESSO Ireland Ltd v Nine-One-One Retail Ltd [2013]; Lease/License distinction

Answer 12

Company which operated food services out of ESSO filling stations.
Found that the owner had access to the whole premises and as such no exclusive possession.
Courts should be slow to look behind terms negotiated at arms length where both parties had legal advice.

Question 13

Equitable Lease

Answer 13

Where parties have entered into a contract to create a lease, but the lease itself has not actually been created between them, equity might intervene.

Question 14

LCLRA; Equitable Lease

Answer 14

In cases of part performance of alleged oral contract, the court can accept the part performance as evidence of the existence and contents of that original oral contract.
“equity sees as done that which ought to have been done”

Question 15

Walsh v Lonsdale [1882]; Equitable Lease

Answer 15

Equitable lease will be created where indicia of a tenancy are present and that the parties had the required intention to create a landlord-tenant relationship.
-Must conform with the maxims of equity.

Question 16

Landlord and Tenant (Amendment) Act 1980; Express covenants

Answer 16

Maintains that a landlord will not be entitled to unreasonably withhold her consent.

Question 17

White v Carlisle Trust [1976]; Reasonable withholding of consent

Answer 17

Wanted to change the use of a tailors to a sweet shop.
Onus on the tenant to prove unreasonableness.
No evidence that the landlord would suffer any detriment and as such was not unreasonable.

Question 18

Green Properties Company Ltd v Shalaine Modes Ltd [1978]; Reasonable withholding of consent

Answer 18

General hardware store was used to sell toys for two years without written consent.

• Undue delay was not accepted: not estopped now because they had previously failed to refuse.
• Found not to be unreasonable on the basis on good estate management.

Question 19

OHS v Green Properties Company Ltd [1986]; Reasonable withholding of consent

Answer 19

Concerned greengrocers within a shopping centre, wanted to sell residue to building society.
Court found refusal was reasonable here on the basis of good estate management, already large amount of financial business and lack of window in financial businesses.

Question 20

Dunnes Stores (Ilac Centre) Ltd v Irish Life Assurance Plc [2008] (HC): Reasonable withholding of consent

Answer 20

Dunnes wanted to change clothes store in a supermarket.
Landlord claimed good estate management but court found that it was unreasonable on the grounds that the landlord had the ulterior motive of wanting to make improvements in the centre.

Question 21

Cregan v Taviri [2008] (HC); Reasonable withholding of consent

Answer 21

Unreasonable to withhold consent where use of the premises is to be same or similar and there will be the same economic return without damage to the premises.

Question 22

Parol Ltd v Friends First Pension Funds Ltd; Remedies for breach of covenant: damages

Answer 22

Covenant requiring tenant to stay open (keep open clause).
Breach of this covenant significantly devaluated the property.
Landlord recovered damages for breach of covenant here.

Question 23

Remedies for breach of covenant: forfeiture.

Answer 23

Breach of a term does not automatically trigger forfeiture; must also show forfeiture clause.

Question 24

Conveyancing Act 1881 S14 (1); Forfeiture

Answer 24

Non-remedy of issue means landlord may retake possession physically or legally (through the courts)