Head 17: 1

Question 1

What is a lease?

Answer 1

A contract under which a person (the landlord) grants to another (the tenant) an exclusive right to occupy property for a certain period, in exchange for which the tenant agrees to tender payment, in money or otherwise

Question 2

What types of lease has there been statutory intervention for?

Answer 2

1. residential tenancies
2. agricultural tenancies
3. tenancies of shops

NOT COMMERCIAL LEASES

Question 3

When can a tenant acquire a real right?

Answer 3

1. When the tenant takes possession (short leases)

2. When the tenant registers the lease in the Land Register.

Question 4

What are the four cardinal elements of leases?

Answer 4

1. Parties
2. Subjects (the property)
3. Rent
4. Definite duration

Question 5

What forms can rent take?

Answer 5

May be in money terms, or in kind, or services. May be ascertained by reference to a mechanism for calculation. May be a nominal sum.

Question 6

Does the tenant require exclusive possession under a lease?

Answer 6

Yes - if possession is shared then NOT A LEASE

Question 7

How long can a lease be?

Answer 7

Under the common law a lease can be in perpituity (Carruthers v Irvine 1717) or 999 years (Welwood v Husband 1874)

Question 8

How long can leases be since the Abolition of Feudal Tenure (S) Act 2000?

Answer 8

175 years only.

Question 9

Effect of the Long Leases (S) Act 2012

Answer 9

Automatically convert ultra long leases (>175 years) to ownership from the 20th September 2015

Question 10

How long can residential leases last?

Answer 10

Leases in relation to residential property cannot be granted for more than 20 years

(however the tenant often has security of tenure - so although the contractual lease cannot be >20 years, the statute provides that a tenant cannot actually be kicked out unless they breach the terms)

Question 11

What happens if either the rent or duration (two of the cardinal elements) are missed?

Answer 11

Although officially all four are required the courts have shown some flexibility where the tenant has taken possession.

Question 12

If the parties have agreed everything except duration and the tenant is in possession and occupying the property then…

Answer 12

The law will imply a duration of 1 year (*Gray v Edinburgh University 1962)

Question 13

*Gray v Edinburgh University 1962

Answer 13

If the parties have agreed everything except duration and the tenant is in possession and occupying the property then the law will imply a duration of 1 year

Question 14

If the parties have agreed everything except the rent and the tenant is in possession then…

Answer 14

The law is slightly unsettled. The practical problem is that if someone is possessing then they ought to pay something, otherwise they would be getting the land for nothing.

1) In some cases the courts imply a market rent as if the tenancy were a yearly tenancy. (Glen v Roy (1882))
2) The other approach is where the court holds there to be no lease but nonetheless the person in possession must pay. Under this approach the recovery of the payment is on the basis of U/E (GTW Holdings v Toet 1994)

Question 15

Glen v Roy (1882

Answer 15

In some cases where there is no agreed rent the courts imply a market rent as if the tenancy were a yearly tenancy.

Question 16

GTW Holdings v Toet 1994)

Answer 16

In some cases where there is no agreed rent the court holds there to be no lease but nonetheless the person in possession must pay. Under this approach the recovery of the payment is on the basis of U/E

Question 17

Joint Administrators of Rangers Football Club Plc, Noters 2012

Answer 17

There was merely a licence for season ticket holders over their seat because their right of possession was not exclusive.