Leases Flashcards
Case which gives us the test for a lease?
Street v Mountford:
1. Exclusive possession
2. For a certain term
3. With rent (abolished in Ashburn)
Estates in land vs interests?
Estates: Freehold and leasehold (s1(1) LPA)
Interests: Charge, easement, restrictive covenant (s1(2) LPA)
Lease v license?
Leases are proprietary, so they can be enforced against third parties.
Licences are not.
Certainty of term as an ingredient of a lease
Max possible duration must be determined from the outset - Prudential Assurance.
Here, no lease as the max duration was too uncertain
Periodic tenancies - Express, Statutory and Implied
Express:
These run from period to period and are ended by serving notice to quit (Hammersmith v Monk), and may be implied from rent payments.
Statutory: Arise when an assured shorthold tenancy (AST) (lease of a dwelling to people who occupy the dwelling as their only or principal home), expires. Creating a new tenancy to prevent homelessness.
Implied: Period inferred from rent payments, but no periodic tenancy if parties have contrary intentions (Javad v Aqil)
If a party’s right to terminate is fettered, there is not a periodic tenancy - right to terminate is essential
Berrisford v Mexfield
Mrs B occupied home as part of a housing scheme. Mexfield rented house to her, with no fixed term.
She paid rent monthly and could terminate, but Mexfield’s right to terminate was fettered.
Held:
Certainty of term could be found and she did have a lease, as she would have had a lease for life pre-1925.
LPA 1925 s149(6) automatically converts these to leases for 90 years (or determinable on death)
Conditions for the Berrisford workaround:
- Would the agreement have been treated as a lease for life pre-1926? (Has it been granted to a human and is it explicitly said to be a lease for life/is it a lease of uncertain term)
- Is s149(6) LPA 1925 engaged, transforming it into 90 year lease determinable on death (is rent or a fine being paid)
If yes to both of the above, workaround applies.
Southward Housing v Walker - additional criteria to the Berrisford exception
Asks: is a lease for life consistent with the parties’ intentions?
Ingredient of a lease 2: Exclusive possession
Street v Mountford - If landlord has unrestricted access, occupier is a lodger.
If occupier has exclusive possession, with landlord providing neither attendance nor services, grant is a tenancy.
Limited rights for landlord to enter and repair does not take away from exclusive possession.
Crancour v Da Silvaesa - Exclusive possession, provision of services
If there is unrestricted access for the purpose of providing services, points toward license, not lease.
Here, landlord had access for purpose of providing services - indicative of lodger relationship.
Keys - Aslan v Murphy
If landlord has a key, we look at the reason for why a key was retained.
A key for emergencies is generally fine as it does not indicate unrestricted access and is only to be used in rare situations, a key for services likely isn’t fine.
How else may we determine exclusive possession? Control - Hunts Refuse
Deeds did not grant full liberty to use the site at all times and for any purpose.
Landlord limited what the person could do on site so much, that it was found that C was a licensee rather than a tenant.
How does exclusive possession interact with multiple occupancy?
With multiple people, you cannot have exclusive control unless you are seen as one in the eyes of the law - you can do this by having a joint tenancy.
4 unities for joint possession
Unity of title - lease must be from same source - however it does not matter if they sign separate but identical agreements (Antonaides v Villiers)
Unity of interest - same right, on same terms, on same duration
Mikeover v Brody - no joint obligations, so no joint tenancy
Unity of time - applies at same time and ends at same time
Unity of possession - Entitled to possess the whole, cannot exclude each other
AG v Vaughan
Four occupiers argued they had a lease.
They all signed separate agreements, with non-identical terms, and paid rent separately, all starting at different times.
No lease as they did not have exclusive possession nor the 4 unities to create a joint lease.
Shams
Terms which are not intended to be enforced but are there because the landlord does not want the agreement to be a lease (due to rights which come with a lease).
Courts consider:
- Is the term genuinely intended by the parties
- Has subsequent practice demonstrated that the term was not genuinely intended?
Sham cases
Crancour - Clause which required tenant to vacate premises for 90 mins every day was blatantly not intended, had never been enforced and was extreme.
Antonaides - Couple lived together as ‘licensees’
Clause was included that the landlord could move in or introduce a third licensee.
Held: Sham, as it was unthinkable on the facts that the landlord would actually move into such a small one-bedroom flat.
When are courts less likely to find exclusive possession?
Care homes - They will likely need right of entry to give services (Abbeyfield v Woods)
Homeless housing - Westminster v Clarke
Property guardianship - Global 100 Ltd v Laleva
Exceptions where there is no lease despite exclusive possession
- Where there is no intention to create legal relations (eg friendship/familial arrangement) although if rent charged, intent likely to be found
- Occupier has particular relationship with landlord eg service occupancy
- Landlord no capacity to grant a lease (except non-proprietary leases)
Bruton and non-proprietary leases
D housing trust had license from local authority to provide temp accomodation for homeless people.
D gave one of these to a homeless person on weekly license with exclusive possession, albeit with right for trust to inspect cleanliness.
Man wanted to enforce the repairing obligations under the Landlord and Tenant Act, but first had to show he had a lease.
HL: Non-proprietary leases can exist if Street criteria satisfied. Held that the trust granted him exclusive possession, certain term and rent, creating a tenancy.
Didn’t matter that the landlord did not have a property right as it was the character of the agreement/relationship which is significant for whether a lease exists.
The proprietary interest called a ‘leasehold estate’ requires a proprietary right to grant it, but a non-proprietary lease does not.
Since these leases are non-proprietary, it will not bind third parties or successors other than the grantor.
Dixon - Why is Bruton bad?
Leases have certain inherent characteristics - it is an estate in land springing from an estate in land.
He thinks proprietary element is essential for a lease to exist, and this is just a contractual relationship.
Also, may result in higher costs for trusts which serve public benefit and aim to prevent homelessness, causing higher costs for providing homeless housing and potentially disincentivising homeless housing or reducing the benefits to which homeless people are entitled (such as exclusive possession)
When does a lease end? Expiry of term
When the term of a lease ends, it will cease to exist.
However, landlord-tenant legislation may provide for a new lease to arise immediately when the old one expires.
Where landlord rents out property to tenants who use it as their only home - this creates an AST, which is regulated by the Housing Act 1988.
When the old AST expires, a new statutory periodic tenancy automatically springs up.
Ending a lease 2: Surrender
If tenant no longer wishes to remain in possession.
If landlord accepts, lease will come to an end.
Requires a deed, and is consensual.
Ending a lease 3: Merger
Tenant buys the landlord’s reversionary interest, merging their two interests.
Ending a lease 4: Notice to quit - s21 notices.
If tenancy is for a fixed term, you generally need a break clause permitting it.
Where it is a periodic tenancy, notice has to be served generally one full period in advance - eg if monthly tenancy, need to provide one full month.
However, for annual periodic tenancies, the period is 6 months.
Landlord and tenant legislation may affect when and how notice is served - eg Protection from Eviction Act 1977 s5 - requires min 4 weeks notice.
Housing Act 1988, s21 - Requires 2 months notice, if no-fault eviction is being made.
Also, no notice to quit can be served in first 4 months of an AST.
If the AST is a periodic tenancy, it can then be served at any time.
Landlord must give more than 2 months notice where the periodic tenancy is 6 monthly or annual. At that point, the common law rule of one period, would still apply (3 months or 6 months).
