Characteristics of a Lease

Question 1

Characteristics of a Lease

Answer 1

• Creates an estate in land – proprietary interest
• Tenant has exclusive possession against all others, including landlord
• Overall control of property for term of lease
• Can be transferred
• Binds new owners of the freehold

Question 2

Characteristics of a Licence

Answer 2

• No estate in land, but a permission on the land
• Not a proprietary interest
• Cannot bind new owners of freehold

Question 3

Street v Mountford [1985]

Definitional requirements of a lease

Answer 3

• CERTAINTY OF TERM + EXCLUSIVE POSSESSION = LEASE

Question 4

Ashburn Astalt v Arnold [1989]

s205 (xxvii) LPA 1925

Definitional requirements of a lease

Answer 4

Rent is not an essential characteristic of a lease

Question 5

Lace v Chantler [1944]

Certainty of Term

Maximum Duration

Answer 5

Duration of 2^nd World War not a fixed term as didn’t know how long would last

Question 6

Prudential Insurance Co Ltd v London Residuary Body [1992]

Certainty of Term

Maximum Duration

Answer 6

Land let until needed for road widening – failed because not know when road would be widened.

Exact date doesn’t need to be known, but maximum duration must be known.

Question 7

Berrisford v Mexfield Housing Co-operative [2011]

Characteristics of a Lease

Maximum Duration

Answer 7

Uncertain terms can be interepreted as leases for life

Question 8

s.149(6) LPA 1925

Leases for Life

Maximum Duration

Answer 8

s.149(6) LPA 1925 – converts leases for life into fixed terms for 90 years and brought to end early on death of tenant;

Doesn’t apply to companies

Question 9

Hammond v Farrow [1904]

Certain Duration

Periodic Term

Answer 9

Short terms presumed to be for not more than 3 years

Question 10

Exclusive Possession

Characteristics of a Lease

Answer 10

Occupier can exclude everyone from property, including the Landlord.

Landlord having to ask permission to come round to look at property is acceptance of this

Question 11

Retention of a Key

Scenarios where there may be no exclusive possession

Answer 11

• Retention of a key by a landlord may indicate that the occupant does not have exclusive possession
• However, if the key is used only in an emergency or by arrangement, then exclusive possession may exist.
• Must Distinguish restricted/unrestricted access e.g. landlord may require possession to manage works in the property (restricted access)

Question 12

Aslan v Murphy [1989]

Retention of a Key

Scenarios where there may be no exclusive possession

Answer 12

Retention of key was a sham and just an attempt to try and distinguish between lease and licence

Question 13

Antoniades v Villiers [1990]

Clauses reserving the right to share or introduce others

Scenarios where there may be no exclusive possession

Answer 13

• If a landlord reserves the right to share the property with the occupiers or reserves the right to introduce others to share, that may mean there is no exclusive possession.
• Clause in the ‘license’ to say landlord could reserve the right to share or introduce others to a property – trying to dispel exclusive possession to make it look like a license not a lease
• Couple living together in a one-bed bedsit with a double bed – not appropriate for someone else to come and share the property

Question 14

AG Securities v Vaughan [1990]

Clauses reserving the right to share or introduce others

Scenarios where there may be no exclusive possession

Answer 14

• If a landlord reserves the right to share the property with the occupiers or reserves the right to introduce others to share, that may mean there is no exclusive possession.
• V large flat with rooms with own locks, share bathroom, shared kitchen. Used by young professionals
• Clause in the ‘license’ to say landlord could reserve the right to share or introduce others to a property up to a maximum of 4
• Parties were strangers when they took the property, there were 4 bedrooms
• Court said it was a genuine clause and the occupants had licences

Question 15

Markou v da Silvesa [1986]

Provision of Services

Scenarios where there may be no exclusive possession

Answer 15

• If landlord provides services, occupant is termed as a lodger and if they have a key for this it is unrestricted access

Question 16

Facchini v Bryson [1952]

No Intention to create legal relations will defeat a lease

Exceptions to Street v Mountford criteria

Answer 16

• Although rent is not an essential element, the fact it is not paid may demonstrate no ICLR
  
  • Where there is an act of generosity, friendship, family, presumption is no ICLR and can be terminated at any time.

Question 17

Heslop v Burns [1974]

No Intention to create legal relations will defeat a lease

Exceptions to Street v Mountford criteria

Answer 17

Husband and wife provided with a cottage rent free as an act of generosity. Rates, costs and maintenance paid by benefactor – No ICLR

Question 18

Foster v Robinson [1951]

No Intention to create legal relations will defeat a lease

Exceptions to Street v Mountford criteria

Answer 18

• Farmer allowed former employee to live rent free in cottage for rest of his life. On his death, daughter claimed to be entitled to remain, paying the old rent. Held to be a licence as no ICLR.

Question 19

Norris v Checksfield [1991]

If Service Occupancy, there is no Lease

Exceptions to Street v Mountford criteria

Answer 19

• Heavy goods vehicle coach driver given accommodation at depot to enable him to drive coaches in an emergency;
• sacked as he didn’t have a HGV licence; argued he had exclusive possession and certainty of term so he had a lease;
• employer claimed was a service occupancy – only had the premises to do the job; court agreed.

Question 20

Royal Philanthropic Society v County

If Service Occupancy, there is no Lease

Exceptions to Street v Mountford criteria

Answer 20

• Mr County was a school teacher and housemaster (service occupancy). While he was still employed, he got married and moved to a different house but still in school premises.
• When he left, the school tried to kick him out, but he said that it was no longer a service occupancy as he was not using this house to perform his duties; was just a perk of the occupation. Therefore, he had a lease and could stay in it until the end of the lease. Court agreed.

Question 21

Bruton v London and Quadrant Housing Ltd [2000]

Exceptions to Street v Mountford criteria

Answer 21

• Homeless man living in short-term occupation argued he had a lease granted to him. He had exclusive possession and did not share it with the Trust or anyone else.
• Only rights trust had were specifically reserved for it in agreement, which was clear acknowledgement Trust did not automatically have these rights

Question 22

Westminster CC v Clarke [1992]

Exceptions to Street v Mountford criteria

Answer 22

• Homeless man signed a ‘licence to occupy’ which acknowledged he did not have exclusive possession and that council could require him to change rooms or share. Therefore, a licence.

Question 23

Vesely v Levy [2007]

Exceptions to Street v Mountford criteria

Answer 23

• Trustees bought flat for occupation by the beneficiary who had mental health problems. Miss Vesely lived with the beneficiary as companion and carer. Had exclusive possession of some parts of flat and claimed tenancy.
• CoA held even though exclusive possession and fact payment of rent not necessary, circumstances still meant didn’t have tenancy.

Question 24

Holland v Oxford City Council [2017]

Exceptions to Street v Mountford criteria

Answer 24

• Claimant member of Showman’s Guild and claimed tenancy over 2 sites at an annual fair organised by defendant.
• Court looked at context of arrangements and held no exclusive possession.
• Council had high degree of control, involving right to enter sites freely, and an implied licence for public to enter the fair site too.

Question 25

Stewart v Watts [2016]

Exceptions to Street v Mountford criteria

Answer 25

• Charity owned almshouses for single, poor women over age of 50. Appellant allocated a house in a letter of appointment in 2004 with these terms:
  
  • Weekly maintenance contribution
  • Specifically declared not a tenant or to have any legal interest
  • Trustees had right to require her to move to another almshouse any time
  • Visitors not permitted to stay unless trustees consented
• Trustees granted a possession order against her for disruptive behaviour. Argued she had a lease, but terms of letter showed she had no exclusive possession and so a licence.