Leases

Question 1

• National Provincial Bank v Ainsworth

Answer 1

• Sole proprietor/matrimonial home/propriety interest
• Facts
• Mr Ainsworth sole registered proprietor of the matrimonial home.
• He moved out
• Wife obtained a judicial separation
• As part of the agreement she would live in the house rent-free and Mr Ainsworth would pay reduced maintenance
• Mr Ainsworth transferred the house to his company
• He defaulted in making payments
• Company claimed the house
• Mrs Ainsworth claimed to have an overriding interest in the property by occupying it
• Held – HL
• Mrs did not have a proprietary interest hence lacked an overriding interest in the property
• She had a personal right

Question 2

• *Street v Mountford

Answer 2

• Lease or licence?/no protection from Rent Acts
• Facts
• Mr Street granted Mrs Mountford the right to occupy a property
• The procedure used was an agreement that stated to be a licence
• The court had to decide whether the agreement was, as expressed in the agreement, a licence or a lease.
• The agreement stated that the licence does not and would not give a tenancy and conferred no protection from the Rent Acts.
• Held
• The agreement was a lease
• Lord Templeman
• Tenancy is a term of years absolute
• He noted that Mrs Mountford was given exclusive possession, and then landlords will only have a limited right, to enter, view and repair the house.
• Significance
• Tenancy or lease only exists if there is exclusive possession ‘a dwelling’

Question 3

• Somma v Hazelhurst

Answer 3

• Licence/truthfulness/no sham
• Facts
• A couple paid a weekly rent
• Landlord obliged them to enter separate agreements which stated that they were licensees
• In practice, they enjoyed exclusive occupation of the room
• The court questioned whether the agreements were licences as expressed by the parties or whether they created tenancy
• Held
• Agreements were licences – as there is no reason that the intentions were a sham

Question 4

• AG Securities v Vaughan and ors; Antoniades v Villiers

- Licences/ sham

Answer 4

• Facts
• 1st appeal = In the first appeal AG Securities (an unlimited company) had a long lease of a flat and it was rented out to four occupiers. Nigel Vaughan and three others. The four had not moved in as a group: each moved in as and when a former occupier left and a room became available.
• Mr Vaughan had arrived in 1982; two of the other occupiers, in 1984 and the fourth occupier in 1985.
• In May 1985 AG Securities attempted to terminate the occupation of the four. The four claimed that together they jointly had a lease, and AG Securities sought declaration that each had an individual licence.
• Held
• At first instance – found in favour of AG Securities
• CA – found a joint lease
• HL – found for AG Securities
• 2nd appeal = An unmarried couple occupied a flat – they shared the same bed and other factors signal they were together
• They signed separate but identical agreements, each agreement containing a clause that said, ‘The licensor shall be entitled at any time to use the rooms together with the licensee and permit other person to use all of the rooms together with the licensee.’
• Owner insisted they enter into separate agreements described as licenses meaning each one would be responsible to pay half the rent each
• The agreements contained a clause that allowed each of them to nominate another to occupy the flat and to reserve the owner the right to occupy it
• Held
• At first instance the judge found the occupiers to have a lease, in the CA these were held to be licences. And the HL reversed the decision and said the couple had a lease.
• HL considered the clause a sham and held them to be tenants in joint possession.
• Lord Templeman
• The Rents Act protects a tenant but they do not protect a licensee. A document which expresses to be a licence must be examined by the court to decide if the rights and obligations imposed created a licence or a tenancy.
  • The case raises questions about how multiple occupiers of land can claim a lease.
  • The decision that the agreement created a lease even though the clear effect of the clause was to deny occupiers the right to exclusive possession.

Question 5

• Mikeover Ltd v Brady

Answer 5

• Case concerning the definition of leases
• Facts
• Mikeover Ltd had leased a property. Then it let it out to Mr Brady and Miss Guile
• Both signed separate and ‘identical’ licence agreements that allowed them to share the property for six months and pay individually
• After the 6 months Miss G moved out
• Mr Brady offered to continue paying her share alongside his
• Mikeover said not – it could only hold him responsible for his share only
• Mr Brady fell behind in payments and Mikeover tried to removed him
• Issue
• Mr Brady claimed to have a lease to obtain protection from the Rent Act
• Held
• Both parties had licences
• Slade LJ – to have held otherwise, there must be the 4 unities: possession, interest, tittle and time
• They held exclusive possession, but there was no joint tenancy + the payments did not create a joint tenancy. Finally, there was no unity of interest as they had the obligation to pay for the rent and also required the existence of ‘joint rights’ and ‘joint obligations’
  • The case illustrates the problems caused to occupiers by the approach adopted in AG Securities. The individual rent obligation would not have prevented Mr Brady from showing that he and Miss Guile held a lease as tenants in common, each with 50 per cent share of the lease – but it did prevent him from showing that they held a lease as joint tenants
  • Each party only held a licence.

Question 6

• *Bruton v London & Quadrant Investment

Answer 6

• Case examines the right of a tenant where the landlord is a charitable organisation with no authority to grant a tenancy, but in which the tenant sought to enforce against the association
• Facts
• The council gave London and Quadrant Housing Trust, a charitable organisation, a licence to accommodate homeless people.
• There was a provision that the council and LQHT had access to the property at limited times
• Mr Bruton claimed that he was a tenant and that the trust had the obligation to repair the flat under the Landlord and Tenants Act 1985
• The Housing Trust argued that the law principle of (nemo dat non quod habet) meaning that no one gives what he does not have
• Hence Mr Bruton did not have a lease, therefore the council and the Housing trust were under no obligation to repair his property
• Held
• CA – the landlord can only give what he has
• HL said the agreement did create a tenancy/lease and was therefore under an obligation to repair
• Lord Hoffmann – the character of the agreement, not the nature of the landlord was the key point for deciding whether a lease existed
  o It did not matter that the landlord did not have a property right in his tittle
  o Irrelevant that the agreement purported to be a licence

Question 7

• How do you determine whether a lease is created when an owner of a flat allows a single person/several occupiers to occupy it?

Answer 7

♣ As noted by Lord Templeman in Street v Mountford, a lease is created (in the sense of a property right in land) if and only if he or she has a right to exclusive possession of land for a limited period given by the person who has such power to give the property right.
♣ Two complications can arise:
♣ Firstly, the agreement between the tenant and the landlord must be analysed to see what rights it creates. For example, a ‘pretence’ may be in place where the landlord did not intend to enforce the term granting exclusive possession.
♣ The second complication occurs when two people acting together claim to have a lease. Both parties can only have a lease if they are genuinely joint tenants – that is the four unities of possession, interest, time, and title are all present. On one view this decision can be doctrinally justified. On another this overlooks the possibility that B1 and B2, acting together, can acquire a lease as tenants in common and thus without the need to show unity of interest, time or title.

Question 8

• *Bruton v London & Quadrant Investment

Answer 8

• Case examines the right of a tenant where the landlord is a charitable organisation with no authority to grant a tenancy, but in which the tenant sought to enforce against the association
• Facts
• The council gave London and Quadrant Housing Trust, a charitable organisation, a licence to accommodate homeless people.
• There was a provision that the council and LQHT had access to the property at limited times
• Mr Bruton claimed that he was a tenant and that the trust had the obligation to repair the flat under the Landlord and Tenants Act 1985
• The Housing Trust argued that the law principle of (nemo dat non quod habet) meaning that no one gives what he does not have
• Hence Mr Bruton did not have a lease, therefore the council and the Housing trust were under no obligation to repair his property
• Held
• CA – the landlord can only give what he has
• HL said the agreement did create a tenancy/lease and was therefore under an obligation to repair
• Lord Hoffmann – the character of the agreement, not the nature of the landlord was the key point for deciding whether a lease existed
  o It did not matter that the landlord did not have a property right in his tittle
  o Irrelevant that the agreement purported to be a licence

A non-proprietary lease is a licence
Always discuss the problems related to the question
Look at the tenancy by estoppel option

• Points to note from the case
♣ Millet LJ –
♣ At 843 ‘In Street v Mountford Lord Templeman gave only three examples of exceptional circumstances where the grant of exclusive possession does not create a tenancy. First, where the circumstances negative any intention to create legal relations at all. Secondly, where the possession of the grantee is referable to some other legal relationship such as vendor and purchaser or master and servant. Thirdly, where the grantor has no power to create a tenancy.’

Further points on the case

Reasons why Mr Bruton wished to claim that he had lease:
• It was provided that s 11 of the Landlord Tenant Act 1985, essentially ensures that where B has a lease for less than seven years, the landlord is having duties under s 11 (see) (WHICH THEREFORE IMPLIES THAT THE LANDLORD HAS A PROPERTY RIGHT ON THAT LAND/ESTATE/PROPERTY). Those duties include the general repair of the structure. The purpose of the duties is that if the tenant has a short term leasehold it would be unreasonable for him to bear the costs of repairs which in the long term will benefit the landlord when he regains exclusive possession of the land.

Clearer facts

• The London Borough of Lambeth (the council) owned a block of flats. It planned to demolish the block and build new flats, but there were delays of that project. In the mean time the council gave the London & Quadrant Housing Trust, a charitable body that sought to provide accommodation to the homeless and those in need, a licence to use the flats for that purpose. It was clear that its agreement with the council gave the Trust only a licence: in particular, the council had no statutory power in the circumstances to give the Trust a lease. Mr Bruton was one of the parties housed by the Trust.
• The agreement between Mr Bruton and the Trust was described as a licence.
♣ Arguments:
♣ The agreement between Mr Bruton and the Trust: the property would be offered to Mr Bruton on the condition that he will vacate upon receiving notice from the Trust (a minimum number of weeks will be given) Contrast this with Islington that said: the licence use was ‘temporary’ there is however little difference.
♣ Mr Bruton claimed that his agreement with the Trust gave him a lease, therefore the Trust was under a statutory repairing duty imposed by s 11.
♣ The Trust argued that Mr Bruton could not have a lease as the Trust had no power to grant Mr Bruton a property right in the land because it had no such right itself, it only had a licence from the council.
• At first instance the court found in favour of the Trust.
• The CA dismissed Mr Bruton’s appeal
• The HL found that Mr Bruton did have a lease, thus the Trust was under a statutory repairing duty.
CA

• Judgment says there is not a lease.

HL

• Lord Hoffmann
♣ 413-6 – ‘The fact that the parties use language more appropriate to a different kind of agreement, such as a licence, is irrelevant if upon its true construction it has the identifying characteristics of lease.’ MY COMMENT – those characteristics being a right to exclusive possession.
♣ ‘It is simply a question of characterising the terms which the parties have a greed. This is a question of law. In this case, it seems to me that the agreement, construed against the relevant background, plainly gave Mr Bruton a right to exclusive possession.’
♣ Lord Hoffmann goes on to say that a ‘tenancy by estoppel’ could have come into existence if the grantor had purported to create a lease and in this case the trust had not done so.

The decision in Bruton was controversial and CORE considers four different explanations for it. 837-841 (I only considered the most convincing arguments from my point of view)

• A tenancy by estoppel?
♣ Routley, ‘Tenancies and Estoppel: After Bruton v London & Quadrant Housing Trust’ CORE 839.
♣ ‘Routley’s argument is that the House of Lords in Bruton reached the correct result, but by the wrong route. The argument is that Mr Bruton and the Trust entered the agreement for a short amount of time which under s 11 of the Land Lord and Tenant Act would be unreasonable for the Trust to avoid its repairing duties by using its lack of property right. Therefore, this form of estoppel does not necessarily give Mr Bruton a lease but prevents the landlord from denying that he had a lease. 840.
♣ Routley’s argument is convincing, however, he admits that this is not what the HL reasoned on.
• An example of purposive statutory interpretation?
♣ McFarlane and Simpson argue two key points the same article.
♣ 1. McFarlane and Simpson, ‘Tackling Avoidance’ CORE 842 – ‘the fact that the occupation agreement is technically unable to confer a lease in the full legal sense is not the fault of the occupier.’ P 175-76
♣ P 177 -

Question 9

*Islington LBC v Green

Answer 9

• Sub-tenant case. (A grants licence permission to B, in turn B grants tenancy agreements to C, D…) this is the same as Bruton.
• But in Bruton the licence was found to be a lease because the licence gave C exclusive possession thus being a lease.
• Facts
♣ The claimant was the freehold owner of a residential property and granted a licence to a community housing association (PW). The terms of the licence were that PW could use the property for temporary housing, but in the event of termination of the licence, PW had to ensure that the property was vacated and in any event the claimant was not responsible for re-housing any occupants (This is similar to Bruton). The claimant passed a written notice to PW to terminate the licence and vacate the property.
♣ The first and second defendants were occupants of the property, and had obtained tenancy agreements through PW.
♣ Contrast the facts and decision to Bruton because the outcomes are different (in here the licence terminated, in Bruton a date as such was not given, contrast the facts)
♣ The defendants contended that PW had acted as an agent of the claimant and therefore the tenancy agreement should be enforced. An order for possession of the property was made, the first defendant vacated and the second one appealed against that decision. The appeal was refused. The judge held that when the licence with PW was terminated, the defendant’s interest in the property ‘fell to the ground’. The defendant appealed.
♣ The defendant submitted that PW as acting as an agent of the claimant and therefore the defendant was a tenant of the claimant, not just PW. The appeal was dismissed.
There was no charity involved here like in Bruton.
♣ The court found that the claimant had granted the licence to PW with the strict intention of bearing no responsibility towards its tenants, as reflected in the terms of the licence. The licence was created to enable PW to provide short-term accommodation.

Question 10

Lace v Chantlerse

Answer 10

• Held
• The tenancy agreement failed as there was no certainty as the maximum duration
• Lord Greene MR
• A leasehold tenancy agreement must be expressed either with certainty and specifically
• In the present case, when the tenancy agreement took effect, the term was completely uncertain in terms of duration

Question 11

• Prudential Assurance v London Residuary Body

Answer 11

• Facts
• London County Council let a strip of land to Mr Nathan
• The agreement stated that the tenancy was to continue until the Council required the land for road widening
• The agreement was intended to be temporary, however, the road widening scheme never materialised and the occupation continued for many years
• The benefit of the agreement was then transferred to Prudential Assurance
• Did the agreement create a tenancy?
• The lease was implied periodic yearly tenancy?
• Clearer facts
• Prior to 1930 Mr Nathan owed shop premises. The London City Council (LCC) owned the land itself. LCC planned to widened the road. This would lead to its encroaching on part of the strip of land owned by Mr Nathan. So LCC bought Mr Nathan’s freehold of that strip of land, agreeing that Mr Nathan could continue to use it until the road widening project went ahead. The agreement stated that the strip was leased back to Mr Nathan for continued use, until it would be required for road widening; in return. Mr Nathan agreed to pay a sum of money yearly in rent. It was clear that both parties intended this to be a temporary agreement.
• By 1988, the road widening had not occurred. London Residuary Body, a successor to LCC, now held the freehold of the strip of land and the shop premises were now owned by Prudential Assurance Ltd which also had the benefit of the 1930 agreement.
• LRB attempted to end Prudential’s right to use the strip of land.
• Held
• CA – note that Millet J found in favour of Prudential that LRB could not regain possession of the strip because the land was not yet needed for road widening.
• Points to note about the HL decision
• HL –
• 1. The contractual agreement entered in 1930 did not create a lease because it did not give Mr Nathan a right to exclusive possession for a limited period, he and later Prudential nonetheless acquired a lease. That lease did not arise from agreement, but instead resulted from Mr Nathan’s payment of rent and the LCC’s acceptance of that rent. This form of lease is known as an ‘implied periodic tenancy’
• 2. The dispute in Prudential did not involve the initial parties to the 1930 agreement
• Held
• A grant for an uncertain term or duration did not create a lease since the term was uncertain. Accordingly, the 1930 agreement did not create an estate in land because the agreement was granting a term of uncertain duration.
• However, the tenant had entered the agreement paying yearly rent he had become a tenant from year to year and that tenancy was then for a term certain because each party had the power to determine by six month’s notice. Since the landlord, the LRB, had served such a notice the plaintiff’s tenancy had been validly terminated. The appeal would be allowed.
• Lace v Chandler applied.
• Lord Templeman
• A period of time must be certain or uncertain. It cannot be partly certain because the tenant can determine it at any time and partly uncertain because the landlord cannot determine it for an uncertain period.

Question 12

• Berrisford v Mexfield Housing Corp

Answer 12

• Facts
• The tenant appealed against an order granting possession saying that it was worded to create a lease for life
• Lease being paid to the bank – so someone is in the house – do not want to move an enter into a leasehold
• She does not want a month to month because they can kick her out
• Clearer facts
• Ms Berrisford owned a property, she was having difficulty paying the mortgage. In 1993 as party of her ‘mortgage rescue scheme’ she sold the property to Mexfield, a fully mutual hosing co-operative. Mexfield then agreed to allow Ms Berrisford to continue in occupation of the property, and she became a member of Mexfield co-operative.
• The statutory protection available to social tenants does not apply to members of housing co-operatives: Parliament took the view that such protection was unnecessary, as in a co-operative the ‘interests of the landlord and tenants as a whole are in effect indivisible.’ Lord Hope CORE 788.
• In the SC Ms Berrisford did not directly challenge the traditional rule affirmed in Prudential Assurance, that a lease must have a maximum duration. Therefore, the SC was not invited to overrule Prudential Assurance and to discard that rule. Ms Berrisford therefore accepted that the occupation agreement did not create a lease therefore her arguments were:
• 1. The occupation agreement would have been treated as a tenancy for the life of of Ms Berrisford which could be terminated by Mexfield during her life only under clause 6.
• 2. Ms Berrisford second argument accepted by Wilson LJ in his dissent in the CA was that even if clause 6 could not form part of a valid lease, it was nonetheless contractually binding on Mexfield and so Mexfield could be prevented from removing her in breach of the terms of clause 6.
• General point on the case: the common law did not convert the lease for an uncertain term into a lease for life; it rather converted it into a freehold life state.
• Held
• The tenant’s appeal succeeded
• Despite the agreement being from month to month, it was clearly intended only to be determinable.
• A periodic tenancy should be treated in the same way as a tenancy for a fixed, if indeterminate term.

Points to note from the case

• In this case Lord Browne-Wilkinson noted that the need for certainty of term may produce ‘bizarre’ or ‘extraordinary’ results. Berrisford is an example of an injustice that may lead.
• The basis on which Ms Berrisford sold her home and then entered into an agreement with Mexfield was that she would be secured in her occupation: she could be removed only if one of the events set out in clause 6 occurred.
• The SC’s solution does not reform or remove the rule applied in Prudential Assurance, that a lease involves exclusive possession of land for a limited period. The SC rather, found that Ms Berrisford had a right to exclusive possession of her home for a maximum period of 90 years, with Mexfield having a power to end that right only on her death or if one of the events set out in clause 6 occurred.

We have identified –
Convert the lease to S to obtain a 99-year lease as you cannot longer have a lease for life.

Question 13

Hammersmith & Fulham LBC v Monk

Answer 13

• Held
• The continuance of a joint tenancy requires the will of all the joint tenants to take from period to period.
• Facts
• Mr Monk and Mrs Powell cohabited in a flat under a joint weekly tenancy given to the by Hammersmith London Borough Council. As the landlord was a local authority, the grounds on which it could recover possession of the flat were limited by statute. The couple separated and Mrs Powell left the flat. She consulted with the council who agreed to provide her with alternative accommodation, if she terminated the periodic tenancy of the place she previously occupied.
• Without Mr Monk’s knowledge or consent Mrs Powell gave this notice to quit to the council who then sought possession of the property.
• The council’s argument was that Mr Monk had occupied under a succession of weekly periodic tenancies and each new tenancy only arose only because of Mr and Mrs Powell never gave notice to terminate the tenancy. Therefore, when Mrs Powell gave the notice to quit the periodic tenancy would end and Mr Monk could be removed from the land.
• Held
• At first instance: Mrs Powell’s notice to quit could not end the joint tenancy.
• CA = Allowed the councils’ appeal
• HL = agreed that Mrs Powell’s notice to quit meant that the succession of joint weekly periodic tenancies and Mr Monk’s right to occupy the flat was brought to an end and the council was free to repossess the flat.

Comments on the case

• The decision in Monk is a rule.
• A periodic tenancy like any lease has to be renewed if it is to continue from one term to the next. And the renewal of a periodic tenancy, like the renewal of any contract requires the consent of all the parties to that tenancy.
• However, this seems concerning for Mr Monk as his security of tenure was removed without his consent. Therefore, The Law Commission has proposed that it should be possible for one joint tenant to give notice to quit/terminate his/her involvement with the tenancy without ending the joint tenancy itself.
• Therefore the decision in Monk has been subject to Human Rights challenges + questioning with the compatibility with Art 8 and with Art 1 of the First Protocol of the ECHR.

Question 14

Sims v Dacorum – SC 2014.

Answer 14

• Mr and Mrs Sims had a joint weekly tenancy, which was protected under the Housing Act 1985 as a secure tenancy. As long as it continued, the grounds on which either tenant could be removed were limited by statute.
• When Mr and Mrs Sims separated, Mrs Sims served a notice to quit, so under Monk the joint periodic tenancy and Mr Sims’ security of tenure came to an end.
• The point to note from the case is that whilst the rule in Monk gives a local authority the option of regaining possession after one joint tenant fails to renew a periodic tenancy, the local authority will have to bear Art 8 in mind when exercising its discretion as to whether to use that option. This is rose by Manchester CC v Pinnock, which concerns human rights.

Question 15

S Nield [2013] Conv 326

Answer 15

(Human Rights and the rule in Hammersmith and Fulham LBC v Monk)

• Discusses the CA decision in Sims v Dacorum BC on whether a secure periodic joint tenancy could be terminated by one of the parties serving notice to quit under the housing Act 1985 according to the rule in Monk, or whether that was incompatible with the remaining tenant’s rights under the European Convention on Human Rights 1950 art 8.
♣ Sarah Nield says that Sims does not further improve the situation a tenant would be under Monk neither provides a solution under human rights.
♣ 327 - Nield makes an important point, ‘The implications of Monk for the remaining joint tenant can be serious where the tenancy enjoyed statutory protection. For instance, where the tenancy is a secure tenancy under the Housing Act 1985, the remaining joint tenant will lose his or her substantial security of tenure at below market rent…’
♣ 328 - Nield brings up two possible grounds that were risen in Sims with regard to the incompatibility of the ECHR with domestic law. Both grounds were argued in Sims. ‘The first one is an infringement of the right to respect for the home found in Sch.1 art.8 of the HRA 1998 that arises from the threat proceedings. The second stems from an alleged deprivation of the remaining joint tenant’s possessions under Sch.1 art.1 Protocol 1 ECHR, resulting from the unilateral termination of the joint tenancy.’
♣ 330 – Nield highlights the decision for the CA to refuse permission to appeal to the SC. The CA took the view that if the needed to be reformed then Parliament should address the problem and not the court. That was addressed by Mummery L.J.
♣ 331 – Monk leaves the remaining tenant with no legal right to occupy their house and any possession proceedings will be incompatible with the Pinnock test. Therefore, the court could be found as being in breach of its duty as a public authority in accordance with human rights.
♣ 333 – Nield points out that ‘The Law Commission has recommended the reform of Monk. They have proposed that a joint tenant be granted a right to withdraw from the joint tenancy upon giving notice to the landlord and their fellow joint tenant.’ Nield also points out that ‘[v]iolent behaviour is a ground for termination where a court is satisfied that eviction is a reasonable response.’
♣ 334 - Nield concludes by saying that the judgment in Sims is not satisfactory as it does not satisfactory address the two ground issues mentioned above (green).
♣ The decision in Sims is also unsatisfactory because of the tension between contract and property law in the sense of the termination of a joint tenancy by one joint tenant and the ECHR.

Question 16

Manchester CC v Pinnock

Answer 16

• The case establishes that although an occupier is entitled to question the proportionality of the eviction from his or her home by a public authority, a finding that the eviction is disproportionate and thus a breach of Article 8 is unlikely. This has been described as ‘exceptional’ by Lord Neuberger in the case of Pinnock.
• Facts
♣ Manchester City Council had granted had granted Mr Pinnock a secure tenancy of a property. Mr Pinnock lived at the property with his partner and varying times with one or more of their five children. There had been a history of anti-social behaviour and as a result of the anti-social behaviour, the council brought possession proceedings against Mr Pinnock.
♣ Issues on appeal
• Whether the jurisprudence of the ECtHR before making an order for possession of property pursuant to a claim made by a public authority, a domestic court should be able to consider the proportionality of evicting that person from his house under Art 8,
• What conclusion on the above issue meant in relation to claims for possession and residential property?
• Whether the tenancy regime could properly be interpreted so as to comply with the requirements of Art 8, or whether at least some aspects of that regime were incompatible with the occupiers’ Art 8 convention rights and;
• How the appeal should be disposed of in light of the answers on the above issues.
♣ Held
• Lord Neuberger who gave the leading judgment said that where there ‘is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.’
• In light of this the SC went on to hold as a general rule that the occupier of a home had the procedural entitlement to a determination by the court of the proportionality of eviction in every possession claim by a public authority, even if it was clear there was no domestic law right to remain, it was for the occupier to raise the issue by way of defence. In other words, the issue of HR can be raised by saying that expulsing the occupier does not satisfy Art 8 and Protocol 1. However, this is unlikely to succeed.
♣ Comments on the case
• The judgment of the SC has opened the door for courts to see occupiers as raising incompatibility/proportionality challenges in the context of the Housing Act (scenarios such as those of Pinnock).
• The judgment leaves open the question of whether issues of proportionality ought to be taken into account in private landlord and tenant possession claims. The question remains as to whether domestic courts will accept the same issue of proportionality for private landlords as they have in respect of public authorities.

Question 17

Akerrem-Livingstone v Aster Communities

Answer 17

• Facts
♣ D a 47-year-old man suffered from a severe mental health illness which was categorised as a disability pursuant to the Equality Act 2010. He became homeless and the housing local authority accepted that it had a duty under the Housing Act 1996 to secure that accommodation was available to him. D was then provided with temporary accommodation in a flat which the claimant held under a fixed-term lease.
♣ D joined the authority’s choice-based scheme for the allocation of social housing. Various attempts were made to find a home for him but he refused them. The local authority thus notified D that its duty under the 1996 Act had been discharged and that it would be terminating the current provision of temporary accommodation for him.
♣ Accordingly, the claimant served a notice to quit and issued a claim for possession.
¬ Issues
♣ The D contended that the proceedings amounted to a disability discrimination within the meaning of s 15 of the Equality Act 2010
♣ The proceedings were in breach of Art 8 of the ECHR 1950.
¬ Held
♣ 1. The substantive right to equal treatment protected by section 35(1)(b) of the Equality Act 2010 was different and stronger than the substantive right protected by Article 8. Basically you are unlikely to win if you raise Articles.
♣ 2. Dismissing the appeal would strike a fair balance between the landlord’s need to accomplish its objectives and the disadvantages thereby caused to the defendant. It was simply not disproportionate to evict D and therefore the eviction would not amount to discrimination contrary to section 35(1)(b) of the 2010 Act.

Question 18

Central issues:

Answer 18

1. A = Person who can pass the property right, B = Third party, C = Claimant, the person who obtains the lease first.
   • 22-24 chaps examine leases
   • In considering the content question, the major difference between a lease and a licence is its ability to count as a property right. In considering the acquisition question, ways in which a lease can come to an end are considered.
   ♣ The three principles that apply to a property right are:
   ♣ The content questions: When would C’s right count as a lease?
   ♣ The acquisition question: How can C acquire a lease?
   ♣ The defences question: If C has a lease of A’s land, when can B (a party later acquiring a lease to A’s land) have a defence to C’s lease? (so when can a new party have a defence to the lease that C already holds in A’s land?)
2. • One important consequence of having a legal lease or equitable lease is that such a right is capable of binding B, a third party who later acquires a right from A.
   • In addition, if C can show that he/she has a lease, this may impose additional duties on A: in particular, such duties may be imposed by statutes that provide protection to C if C has a lease.
3. Chap 23, the statutory protection available to C if he/she has a lease.
   ♣ Even if C has no property right, this suggests that there are two sort of leases: a proprietary lease, and a non-proprietary lease.
4. • The Content question of a lease can be defined as C having exclusive possession of land for a limited period. In practice, this definition may be problematic, for example when dealing with cases where B1 and B2 occupy land together? And what is the effect of a term inserted by A into an occupation agreement with C with the sole purpose of denying C exclusive possession of land?
5. In considering the acquisition and defences questions
   • Consider the impact of the Land Registration Act 2002 on leases.
   • When considering the A and D questions you also need to consider the possibility of C having an equitable rather than a legal lease
6. This is a discussion point.
   • The recurrent debate about the conceptual nature of a lease: should it be seen as primarily a contractual right, or instead primarily a property right?
   • The debate rests on the misconception that, there is no reason why a right cannot be both contractual acquired as a contractual agreement between A and C, and also proprietary, that is having a content that can count as a legal proprietary right.
7. Chap 24 – the concept of leasehold covenant
   • This is where proprietary rights can bind A, C and parties later acquiring rights of A and C.

1 – The effect of a lease

• Having a contractual licence, as opposed to a lease also means a secure position.
• Lord Templeman provides an analysis for an attempt to define the content of a lease or to distinguish a lease from a contractual licence. (Street v Mountford).
• Lord Templeman sets out a test for the existence of a lease: C can only have a lease if he or she has exclusive possession of land for a term (so the term is a limited period).
• The Street v Mountford case also raises an important question of whether, and if the court’s approach to defining a lease has been affected by forms of statutory protection available only where C has a lease.
• The key point to take from the case is that like Mrs Mountford, C may claim that he or she has a lease in order to show that A is under statutory duties to C. Bear in mind that now The Statutory duties imposed by the Rents Act 1977 are relevant.
• When talking about Street v Mountford you must talk about the case of Bruton v London and Quadrant Housing Trust.
♦ In here the HL held that Mr Bruton had a lease, at least for the purposes of the Landlord and Tenant Act 1985, even though his agreement with A did not give him a property right.
♦ Analysis point on the case: The idea that C can have a lease even if he has no property right is a controversial and important one. Chap 23 focuses in this point.
♦ Statutory protection continues to apply in residential cases not involving private landlords. For example, if C can show that he or she has a lease from a local authority, the Housing Act 1985 will apply to impose extra duties on the local authority. For example, the statute limits the grounds on which C can be removed and thus confers on a tenant (but not a licensee) a form of security of tenure. In contrast if C has a licence there is no such a statutory duty.

The effects of a lease

• Briefly, because this case is not mentioned in my hand out, the HL in Hunter v Canary Wharf reveals the point that a property right imposes a duty on the rest of the world. So the rest of the world is under a prima facie duty not to interfere with C’s use of that land.
• Lord Goff’s judgment stating a ‘licensee with exclusive possession’ may be able to sue in nuisance. The problem disappears when distinguishing between the two types of exclusive possession.
• CORE 759. The first one highlighted by the case of Street v Mountford. The second arises from the case of National Provincial Bank v Ainsworth. This is where A has a freehold and lives with his partner B. A moves out and B remains in occupation at each stage with a licence. There is no agreement between A and B giving B a right to exclusive possession of the land. But when A moves out B assumes sole factual control of the land. Therefore, B acquires a second type of exclusive possession: A right arising from B’s conduct in having sole physical control of the land thus giving rise to a legal freehold alongside his licence. Therefore, the ability to sue comes from the legal freehold, not the licence.

The Content Question

• The LPA 1925 makes clear that a lease referred to as ‘term of years absolute’ can count as a legal estate in land.
• There are a number of points to consider when applying Lord Templeman’s test in S v M of a lease.

The questions to ask:

1. Whether C’s right can count as a lease even if A when making the agreement with B, makes clear that he or she does not intend to grant C a lease. This was answered by the HL in S v M where A’s lack of intention to grant C a lease does not necessarily prevent C’s right from counting as a lease
   ♣ Street, ‘Coach and Horses Trip Cancelled? Rent Act Avoidance after Street v Mountford – (Utility article)
   ♣ The article points out that prior to the decision of the HL in Street, the CA had developed a rule that if A did not intend to grant C a lease, no lease would arise.
   ♣ The question is whether the HL had a good reason for the departure.
   ♣ The article of Hill, ‘Intention and the Creation of Proprietary Rights: Are Leases Different? – (Doctrinal article)
   ♣ Says that the HL created a special exception to the general approach of creating a lease (A and C consenting, as we know A did not consent in S v M), thus protecting vulnerable residential occupiers.
   ♣ McFarlane, The Structure of Property Law
   ♣ The article justifies the decision in S v M from a doctrinal perspective as well as from a utility perspective.

Law of Property Act 1925, s 149(6)

• Certain form of leases for example a lease for life are validated by interpreting the lease as a lease for a fixed term (90 years), with the landlord having the power to determine the lease following the occurrence of a particular event.
• In Berrisford, reform of the Act was considered.

Exceptions?

• This question is mainly dominated by Street v Mountford, and Bruton v London Quadrant Housing Trust – See CORE 803 if notes not clear enough or see the case summaries in Lexis.

The Acquisition Question

• Distinguish between legal and equitable leases. In legal leases the property right is passed from one person to another. In equitable lease, the person acquires the property right by relying on the conduct of the other person who has the property right.

Formality requirements to passing a lease

1. A contract to grant a lease must be signed by both parties as required in s 2 of the LP(MP)A 1989.
2. A’s grant of lease to B must in general be made in deed, as required by s 52 of the LPA.
3. The registration requirement in s 4 of the LRA 2002. This is where B will become the registered holder of the legal estate.

Law of Property Act 1925, s 54(2)

• B can obtain a legal lease from A by oral grant. Registration is not needed; nor a deed; nor even any writing. The policy is simply for matters of convenience. For a lease to be obtained in these terms it must be: for three years or less; take effect in possession and is at the best rent reasonably obtainable without taking a fine.

Joint tenants and tenants in common explained

Joint tenants: Joint tenants own the whole property without a separate share or distinction between them. On death of one of the Joint Tenants the whole of the property passes to the survivor or survivors. Normally the survivor can sell the property. A Will made by a Joint Tenant, which leaves the land to anyone other than another Joint Tenant would be ineffective.

Tenants in Common: This form of ownership is preferable when co-owners are not married or have different contributions to the purchase price. This form of ownership is regarded as having separate and distinct shares. Therefore, they can sell, give away or mortgage their shares. On death of a co-owner their share passes under the terms of their Will.

Why should a married couple hold their property as Tenants-in-Common?
• To protect their share of the property and ensure it passes to their children in the event that the surviving spouse remarries or if this is a second marriage
• To protect a share of the property in the event that one spouse enters residential care
• To reduce inheritance tax

Chap 23 – Regulating Leases and Protecting Occupiers

Central Issues

1. As previously mentioned the key feature of a lease is to count as a property right.
2. The statutory protection available to B depends on the B’s landlord. If the A the landlord is a private individual the statutory protection available to B is very slight; where A is a local authority, however, significant statutory protection is still available to B is the form of ‘security of tenure.’