Leases Flashcards
(46 cards)
Lord Templeman’s definition of leases in Street v Mountford
A lease is an arrangement that gives a person the (1) right of exclusive possession of land, for a (2) term of years absolute, at a (3) rent
What is the significance of the label attached by the parties to the arrangement?
The test is one of substance taking into account the purpose and terms of the grant and the surrounding circumstances, and not the intentions of the parties as professed through the label.
That being said, the courts place more weight on the label attached by the parties to the agreement in commercial settings, as the parties are more likely to have equal bargaining power in such contexts (Clear Channel)
Clear Channel (exclusive possession)
It is of the essence of a right of exclusive possession, and hence of a tenancy, that the area of land over which the right is said to exist should be capable of precise
identification at the date when the right is said to be created
What is the significance of the label attached by the parties to the arrangement?
The test is one of substance taking into account the purpose and terms of the grant and the surrounding circumstances, and not the intentions of the parties as professed through the label.
That being said, the courts place more weight on the label attached by the parties to the agreement in commercial settings, especially if they have received legal advice, as the parties are more likely to have equal bargaining power in such contexts (Clear Channel)
What is the significance of the label attached by the parties to the arrangement?
The test is one of substance taking into account the purpose and terms of the grant and the surrounding circumstances, and not the intentions of the parties as professed through the label.
That being said, the courts place more weight on the intention evinced by the label attached by the parties to the agreement in commercial settings, especially if they have received legal advice, as the parties are more likely to have equal bargaining power in such contexts (Clear Channel)
What is a “pretence” and what is the judicial attitude towards it?
The court has the power to ignore “pretences” or”sham devices” – essentially clauses inserted into the agreement deliberately in order to avoid the creation of the lease by ensuring the Street v Mountford test is not fulfilled (Antoniades)
What is the significance of exclusive possession?
If T lacks exclusive possession he is ALWAYS a licensee; Street v Mountford.
What is the significance and definition of exclusive possession?
If T lacks exclusive possession he is ALWAYS a licensee; Street v Mountford.
“The tenant possessing exclusive possession is able to exercise the rights of an owner of land, which is in the real sense his land albeit temporarily and subject to certain restrictions…he can keep out strangers and generally keep out the landlord”.
What is the significance of services provided by the landlord to the requirement of exclusive possession?
Clarke - if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises, the agreement is a licence.
Vandersteen clarifies that the right to enter the premises and perform services must be exercised in L’s capacity as landlady as part of the occupation agreement; a right to enter to perform ancillary services (i.e. if L did not perform the services T would just get someone else to) does not suffice.
In signing an occupation agreement with T, L includes a clause expressly reserving to him the right to reenter and make repairs. Is L likely to have exclusive possession?
Street - The fact that L sees the need to expressly reserve the right to reenter indicates he recognizes T’s right to exclusive possession and is indicative of a tenancy.
In signing an occupation agreement with T, L includes a clause expressly reserving to him the right to reenter and make repairs. Is L likely to have exclusive possession?
Street - The fact that L sees the need to expressly reserve the right to reenter indicates he recognizes T’s right to exclusive possession and is indicative of a tenancy.
In signing an occupation agreement with T, L includes a clause expressly providing that he is to retain the keys and that the locks are not to be changed w/o his consent. Is L likely to have exclusive possession?
Aslan – where there is a provision that L is to retain a key, the crucial question is why the provision was included, for the existence of the provision of itself cannot prove anything
i. If the key is for L to perform his responsibilities (read meters, do repairs), the retention does not of itself indicate that T is lodger
ii. If the key is for L to perform genuine services which can only be provided by having keys (e.g. bed-making, cleaning), then this may support an inference that the occupier is a lodger.
When will L’s express reservation of the right to enter another lodges be indicative of a license?
Duke v Wynne - If L truly intended to have two lodgers but merely could not find them simultaneously, then T would have de facto occupation of the premises until the second T was introduced but not de jure occupation and thus could not claim to be a tenant.
Conversely if L reserves the right to introduce another lodger, but never sees this as a serious possibility, then the court will find that T has exclusive possession of the premises.
A, B C and D are renting out rooms in E’s property. They each moved in a year apart, A being the first to move in, and the amount of their rent is proportional to the size of their room. They have use of the common kitchen and living room. Are they lodgers or tenants?
It is possible for a multiple occupancy agreement to be a mere licence re the entire property; each party may have a lease over their own room but the four unities must be present to support a joint tenancy of the leasehold estate. Here, as in Vaughan, there is no unity of interest or time; thus this is likely to be a case of separate licences over the whole property (and perhaps individual tenancies over their rooms).
A, B C and D are renting out rooms in E’s property. They each moved in a year apart, A being the first to move in, and the amount of their rent is proportional to the size of their room. They have use of the common kitchen and living room. Are they lodgers or tenants?
It is possible for a multiple occupancy agreement to be a mere licence re the entire property; each party may have a lease over their own room (Antoniades) but the four unities must be present to support a joint tenancy of the leasehold estate. Here, as in Vaughan, there is no unity of interest or time; thus this is likely to be a case of separate licences over the whole property (and perhaps individual tenancies over their rooms).
A and B have been dating for 8 years and finally decide to move in together into the top floor of C’s maisonette. They sign separate residency agreements, each for £300 rent a month. Discuss the nature and equitable ownership of their estate.
In Antoniades the court was willing to read separate agreements as one agreement in substance such that the unities were present – probably motivated in part by the fact that, as here, the “multiple occupancy” was that of a romantically linked couple. Thus it is likely that here A and B have a joint tenancy over the leasehold estate at monthly rent of £600.
What is meant by the requirement that a lease be for “a term certain”?
Berrisford - the maximum duration of the term must be certain from the moment when the lease takes effect
Is a periodic tenancy for a “term certain”?
A periodic tenancy is not uncertain because
there is a succession of periodic tenancies each of certain term; the only uncertainty is over how many terms there will be (Prudential). However, Baroness Hale thought in Berrisford that if either party was forbidden to give notice except in circumstances which might never arise this would be uncertain
Berrisford discussed a way to circumvent the requirement of a “term certain”. What was it, and give an illustration.
- A lease w/ a fixed maximum duration made determinable upon an uncertain conditional event is sufficiently certain
E.g. if the uncertain term is granted to an individual, it may be treated as a lease for life (converted to a lease for 90 years under S.149(6) of the LPA 1925), terminable on the occurrence of the uncertain event/death of tenant.
When will a periodic tenancy be found?
The question is whether the period tenancy is consistent w/ the parties’ common intention, though the payment of rent will usually be an important factor (Javad).
Discuss 3 criticisms of the rule that a lease be for “a term certain”.
- Defeating the parties intentions (Prudential Assurance)
- Easily circumvented, illustrating its lack of practical utility (Berrisford)
- Producing an arbitrary distinction between an uncertain term of years granted to an individual (enforceable due to S.149(6) of the LPA 1925) and that to a company, which is unenforceable (criticism by Dixon)
Can the rule that a lease be for “a term certain” be justified?
(a) Prudential – there is potential injustice in recognizing that the lease continues into perpetuity where the determining condition never arises
(b) It maintains the doctrinal distinction between leasehold and freehold
What is the relevance of rent to the definition of a lease?
Rent is no longer a necessary element of a lease (Ashburn Anstalt). However, the payment of rent remains legally relevant as it
(i) Demonstrates ICLR
(ii) Supports the inference of a periodic tenancy (Javad)
How may we distinguish “rent” from payments rendered for lodging?
Veseley – the label given to the payment is not decisive; the test for rent is whether payment is made for the exclusive use and occupation of the premises.
