land law, estates in land. Flashcards

Question

What did estates look like prior to the LPA 1925?

Answer 1

Multiple Legal Estates * Fee tail – an old estate, no longer do these exist, a form of estate which could be used to lock up an estate in a family forever, inheritance through male lines, article by Sir Gunter trial. * Life estate – this old estate was for life for one individual, a way for providing for children, binding estates up again. After 1925 transmissibility was a large aim of their statute. * Estate pur autre vie - an estate for the life on another, causes a state to subsist for a long time, language was swept away as well for clarity in English law.

Answer 2

Simplification of Estates (Ownership Rights – Lease & Freehold) We now only have two types of estates in land.

Answer 3

(1) The only estates in land which are capable of subsisting or of being conveyed or created at law are— (a) An estate in fee simple absolute in possession; (b) A term of years absolute.

Answer 4

All other estates, interests, and charges in or over land take effect as equitable interests. Old estates continue to be recognised by Equity.

Answer 5

A look at leases, (lease hold estate) Academic opinion.

Answer 6

Leases must be for a certain term (know when they started, how long they will, and when they will end). - Sparks key argument ‘certainty of term’ the length of the lease, was a key quality to be focused on because it permits predictability for business transactions. - Leases must be for a certain period, when does it start and end and therefore last for. If you have a lease for an uncertain term, that is an indefinite term, it is complex for landlords, Peter Sparks states leases have to be for a certain amount of time.

Answer 7

Is a lease realty or personalty?

Answer 8

Law of Property Act 1925; s.205 (1) (xxvii) Bright thinks because of definitional provisions such as the one above, we can think of a lease in the sense as a contract. However, we have already seen that they are classed as ’estates’, alongside the freehold estate.

Answer 9

- He takes us through the distinction between realty and personalty. - Is a lease an element or personalty or realty. Harwood - Personalty Personalty is MOVABLES on the Land Types of movables. Harwood - Realty Realty is THE LAND itself. The building and the land upon which it sits, not the chattels within it which are presonalty. The land, not the cars which are parked upon it.

Answer 10

Harwoods argument Is how can you fix a lease into this binary? He argues a lease is a part of land because attached to a lease brings a realty connotation. In law, real property includes a leasehold according to Harwood

Answer 11

Lease vs a license

Answer 12

Key point between the two – idea of exclusive possession. This distinction is technical however this is the key distinction. If exclusive possession is present, this is more likely a lease as opposed to a licence.

Answer 13

The right to exclude others from the property.

Answer 14

‘[a licence] properly passeth no interest nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful.’

Answer 15

This is mere permission, not ownership, not proprietary, not an estate.

Answer 16

Easier to get rid of an individual with a licence as opposed to a lease. Permission may be revoked. This is why there is a tension between having a lease or a licence.

Answer 17

A License is a mere Permission, but a Lease is an Estate □ A license is just a legal permission to take an action (e.g., live in Crown Place) □ In the land context, a license is the entitlement to use premises. It is enforceable against whoever granted the license (e.g., the University of Liverpool)

Answer 18

Licenses Are Not Binding on Successors, but Leases are so Binding.

Answer 19

A lease grants a tenant exclusive possession of a property for a set period of time, while a license gives a licensee permission to use a property for a specific purpose. A lease is a legal agreement that creates a property right, while a license is a personal right that can be terminated more easily.

Answer 20

Errington v. Errington & Woods [1952]

Answer 21

* Leases as binding estates. * Case involved a father, his wife and a son and daughter in law. * In 1936 the father bought a house for his son and daughter in law to live in. * He put down £250 of his own money. * He also borrowed £500 from a building society. * The son and daughter in law paid this 500 back as mortgage. * The father said the house will be your property when the mortgage is paid. * It was clear the house was not the couple’s property; they had permission to live in it until the mortgage was paid. * This is just a licence, there was also no gift (no presumption of advancement). * Until they paid the mortgage, no lease. * The father died before they had paid off the mortgage and he left all his property in his will to his wife. * She tried to take possession, she was the successor in title, at law she had the right to take possession at law. * Because of this unfairness you would hope the COA may act, through equity, they were given a right to occupy the property. * Leases bind successors, they would have been fine as even though she had the leasehold she would have been bound by the lease.

Answer 22

- This is a case which helps us think about leases and their qualities. In particular the case helps us think about rent as one of Lord Templeman's three hallmarks of the lease. - We know that exclusive possession is a key part of a lease - that is to say the right to exclude others. It is interesting to note that rent is NOT necessarily an necessary condition for there to be a lease. - This is what the Asburn case stands as authority for. - In Ashburn Anstalt v. Arnold [1988] 2 All ER 147 a Mr Walter John Arnold had sold his own property (the red house on the diorama), a very valuable shop premises in Kensington, to a re-developer on a lease back agreement. - But he had arranged that the lease back on the shop would occur without his paying rent. - He still believed he had a lease despite the lack of rent, this was held up in the courts. - This was a lease not a licence. - He had exclusive possession. - Normally, we do see rent as exclusive possession. - Exclusive possession has a great importance.

Answer 23

Ashburn Anstalt v. Arnold [1988] 2 All ER 147

Answer 24

No, but exclusive possession is and rent often indicates exclusive possession and therefore a lease but not always.

Answer 25

"We treat the case as one where no rent was payable. Did that prevent the provisions of clause 5 from creating a tenancy? We do not think so, We are unable to read Lord Templeman's speech in Street v Mountfordas laying down a principle of "no rent, no lease."

Answer 26

Yes, □ Licences might be revocable if that is part of the agreement. □ Leases are for a certain term requirement – Professor Sparks.

Answer 27

Lace v Chantler [1944] KB 368

Answer 28

Term Certain Birk’s article – land law is to do with time Freehold – lasts forever Leasehold – lasts only for a ‘term certain’.

Answer 29

* (Black adders patch diorama) – about WW1, talks about length. * In this case, the house was let for the duration of the war. * It was held he did not have a lease, because the duration of the way is not determinable or certain by any means. * He had a revokable licence due to a lack of certainty in time frame. * Need to know how long a lease will last for, when will it start and when will it end. So, in answer to the question of whether what existed was a lease or a licence the court was able to hold that what was in place was a licence. This is because we did not know how long the war would last in 1944. For a lease you need to know from the start how long it will last.

Answer 30

 A license is a permission to use land, but a lease is an estate in land.  Being a powerful ownership right, the lease binds successors, but the license does not.  Leases last for a certain (determinable) term, whereas licenses might be revocable at any point (depending on the terms of the permission).

Answer 31

Prudential Assurance Co Ltd v London Residuary Body [1992] 3 All ER 504

Answer 32

Bright Article □ Bright ‘The uncertainty of certainty in leases’ (2012) L.Q.R. 337 □ Gives really clear definitions of some core concepts. Read this. - “Leases provide a recognised means of regulating through contractual terms the occupancy of land in return for a rent paid to the owner”. (We have seen rent is not always necessary). Secondly, she describes certainty clearly, in exam when introducing a lease, as bright demonstrates - “a lease should have a beginning a duration and an end date” “these should be ascertainable at the commencement of a lease”.

Answer 33

* London county council let Mr Nathan a strip of land for a market stall, * They said in agreement it would last until the road his market was placed was widened. * The council planned to widen the road in the near future, they never did. * This left him with the land for 60 years with low revenue. * The council sold the land and the purchaser wished to revoke his tenancy; they were able to do so. * Because the initial agreement was not for a certain term, he did not have the protection of a lease, no certainty.

Answer 34

Skipton Building Society v. Clayton (1993) 66 P&CR 223 Berrisford v. Mexfield Housing Co-op [2011] UKSC 52

Answer 35

Law of Property Act 1925, s.149(6)

Answer 36

This is an exception – if you set up a lease to last for a life of someone, because of this subsection, the law does not allow the lease to fail. Instead, it imports the idea the lease will last for 90 years. This is surprising because we think a lease for the life of someone would be uncertain.

Answer 37

* A couple sold their home subject to agreement that they may live in it for free for the rest of their lives. * They had a lease for 90 years in application of this subsection. * Lease for life is uncertain, but lease for 90 years is allowed.

Answer 38

* Mrs Beresford owned property in north London originally had freehold. * Difficulty paying her mortgage, sold it to Maxfield. * Attempt to remove her years later from the property. * She expected to live here for life, subsection came to the rescue, lease for 90 years, she could stay.

Answer 39

Core Summary □ Leases must be for a fixed term determinable at the outset. That is, you must know when the lease begins and ends and how long it will last. □ Law of Property Act 1925, s.149(6) provides an exception, turning ‘leases for life’ (which are not for a fixed term) into 90-year leases.

Answer 40

Periodic terms  A MAJOR exception to the fixed term rule because periodic terms can just roll on indefinitely.  Tenancy ‘month to month’ or ‘week to week’  Terminable at the end of a month, or a week.

Answer 41

Javad v. Aqil [1991] 1 W.L.R. 1007

Answer 42

* Illustrates the rule in operation. * No periodic lease in this case. * Aqil lost their place of business, nowhere to manufacture. * Needed a place for his stock, landlord too pity and provided him with premises. * LL gave him keys on brick lane in London. * This was an anticipation that in due course, they would discuss the terms of a lease. * They never could agree a formal lease in negotiations to last for a long period. * Aqil agreed to pay rent quarterly. * He argues he had a periodic lease, paying rent every 3 months. * The court held a lease could arise in these circumstances and periodic leases do exist however the intentions of the parties must be considered. * In this case, it was clear Aqil had not go along well with the landlord so there was no intention for a periodic lease. * Case clarifies they do exist, but you have no lease unless the parties have intended to create one.

Answer 43

Intention □ This is the first time that we have come across intention. □ The key ‘take-away’ is that in order to create a lease (of any sort) the parties must intend to do so.

Answer 44

Prudential Assurance Co Ltd v London Residuary Body [1992] 3 All ER 504: □ ‘[certainty is provided] because each party has power by notice to determine at the end of any year. The term continues until determined as if both parties made a new agreement at the end of each year for a new term for the ensuing year.’ □ In the context of a ‘year to year’ lease. - it is certain in some sense, it continues until it is determined.

Answer 45

- critical analysis, I disagree to an extent, is it really certain, not in the Lace and Chantler sense, no beginning, duration and end date.

Answer 46

□ Periodic terms do exist at law, if the parties intend to create them □ They are very difficult to reconcile with the wider rule that all leases must be for a certain term.

Answer 47

Leases and exclusive possession

Answer 48

Key hallmark – the ability to exclude others from your property to use it.

Answer 49

Street v Mountford [1985] AC 809

Answer 50

This case is a key authority for leases, indeed, the case is a landmark case in the history of land law. The House of Lords opinion of Lord Templeman gives us the classic definition of the ingredients of a lease within this case. You will remember that Lord Templeman talked about accommodation that had been "granted for a term at a rent with exclusive possession." The rest of the Law Lords (Scarman, Keith, Bridge, Brightman) agreed with Lord Templeman

Answer 51

A sham lease attempt, The facts of the case also provide a classic example of facts where "landlords" attempt to circumvent statutory protection for "tenants" by asserting that agreements are "licences" as opposed to "leases".

Answer 52

- The key protagonists in the case were Mr. Roger Street (the landlord) and Ms. Wendy Mountford (the tenant). - The property was located at 5 St Clements Gardens, Boscombe (pictured below). - The rooms which Mrs. Mountford agreed to take were numbers 5 and 6. - The agreement contained use of the term 'licence' on six occasions. - The 'Licence agreement' granted Mountford the right to occupy the two rooms for £37 per week. - The agreement also included a declaration signed by Wendy Mountford that she understood that the agreement did not give her a tenancy protected under the Rent Acts. - The House of Lords allowed Mrs Mountford's appeal. - They held that where residential accommodation had been granted for a term at a rent with exclusive possession, the grantor providing neither attendance nor services, the legal consequence was the creation of a tenancy. - Therefore, on its construction the agreement between Street and Mountford , notwithstanding the use of the term 'licence' had the effect of creating a tenancy.

Answer 53

Aslan v Murphy [1990]

Answer 54

- In this case, we had an owner who went through a lot of trouble to ensure she had not created a lease. - She wished to create a mere licence which is revokable. - 3 qualities – the right to place other occupiers in the property, the right to come in with cleaners and provide a service, the owner was to keep a key. - Despite these clauses, the court held the occupiers did have exclusive possession. - Cleaning services never provided other occupiers never entered. - This was a lease after all.

Answer 55

AG Securities v Vaughan [1988]

Answer 56

- Couple renting top floor flat of the same building, identical but separate agreements. - Agreements said further people could be moved in, no one ever did. - The courts thought this was a sham, believing the couple had exclusive possession

Answer 57

Westminster City Council v Clarke [1992]

Answer 58

-- Council of premises for 31 single rooms, used as a hostel for the homeless. - Eventually to transition to more permeant accommodation. - D provided accommodation the hostel ‘a licence to occupy’ he signed this which stated there was no intention to provide him with the rights of the tenant - He argued a lease that the council could not take. - No exclusive possession here.

Answer 59

Gray v Taylor [1998] 4 All ER 17

Answer 60

- The occupier was in charity accommodation, usually for the old. - The occupier behaved badly. - The court held the lease would be contrary to the nature of the agreement, she was held to have a license.

Answer 61

Bruton v. London Quadrant Housing Trust [1999] 3 WLR 150 - In the case Mr. Bruton was the occupier of a flat in Oval House. - This flat was owned by Lambeth Borough Council (LBC). - In this case this means that LBC had the freehold estate of the flat. - LBC granted a licence to a Trust. This trust was called the London & Quadrant Housing Trust (the Trust). - The Trust was set up to provide accommodation to people who were homeless. - Mr. Bruton was one of these homeless people. Mr Bruton complained to the Trust because his flat was in poor condition. - Mr Bruton said that his agreement to live in the flat was in the nature of a lease, as opposed to a licence. - If the agreement was a lease then Mr Bruton argued that the Trust were in breach of their implied obligations to repair the property pursuant to the Landlord and Tenant Act 1985. - The Trust argued that they had no legal estate from which to grant a lease - Remember that LBC owned the freehold and they had given the Trust only a licence to use Oval House for housing homeless people. - In other words the Trust were only licensees as well. - They argued they could not therefore extend a lease to Mr Bruton. - So the question before the court was whether or not a licence holder like the Trust could grant a lease.

Answer 62

In his opinion in the House of Lords Lord Hoffmann (and his brethren) said that Mr. Bruton was in fact a tenant. This was because in the House of Lords view the agreement between Mr. Bruton and the Trust fulfilled all the criteria to create a tenancy. The agreement conferred exclusive possession. This exclusive possession was also for a period and in return for rent. So, in others words, the agreement fulfilled all of the hallmarks of a lease that Lord Templeman described in Street v Mountford.

Answer 63

□ Exclusive possession is a core concept in a lease □ Courts take a case-by-case and fact-sensitive approach to finding it.

land law, estates in land. Flashcards

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