Leases - Requirements Flashcards
(27 cards)
What is a lease?
A lease is a proprietary right to use land exclusively for a certain term. It grants possession enforceable in rem.
What is a licence?
A licence is a personal permission to occupy land, enforceable only against the grantor and not against third parties.
Why is distinguishing a lease from a licence important?
It determines enforceability, statutory protections, and rights against third parties, including security of tenure.
What are the three key requirements for a lease?
Certainty of term
Exclusive possession
Compliance with legal formalities
What does ‘certainty of term’ mean?
The duration of occupation must be known at the outset, either as a fixed or periodic term.
What is a fixed term lease?
A lease granted for a defined duration, e.g. 5 years. Cannot end early unless a break clause exists.
What is a periodic tenancy?
A lease renewing automatically each period (week/month/year) until terminated by notice.
Can periodic tenancies be implied?
Yes, if occupation and rent payment exist without a fixed-term agreement
How is the period of a periodic tenancy determined?
By reference to how rent is calculated, not how it is paid.
What is exclusive possession?
The right to exclude all others, including the landlord, from the premises.
Does landlord retention of a key defeat exclusive possession?
Not necessarily. Depends on purpose and extent of access
Do services provided by the landlord prevent exclusive possession?
Yes, if services are essential (e.g. cleaning/linen), the arrangement is a licence
How are sham sharing clauses assessed?
Courts look at accommodation size, relationship of occupiers, wording, and exercise of the clause
How do courts treat exclusive possession in business tenancies?
More weight is given to the label and contractual terms, assessing whether the landlord retains control
Can a relocation clause defeat a lease?
Yes. If landlord can relocate tenant to another site, no exclusive possession exists
Can multiple occupiers have a lease?
Yes, as joint tenants if they collectively have exclusive possession.
What are the four unities required for a joint tenancy?
Possession
Interest
Time
Title
What if occupiers do not satisfy all four unities?
They cannot be joint tenants. If no individual tenancy exists, they are licensees
Can separate but identical documents satisfy unity of title?
Yes, if the documents are interdependent and the arrangement is joint
Can a family or generous arrangement create a lease?
No. If no intention to create legal relations exists, it is a licence
What is a service occupancy?
Where occupation is tied to employment and required for better job performance. No lease exists
What formalities are needed to create a legal lease generally?
A deed is required
What if the lease term is over 7 years?
Deed + registration required
What if the lease term is 7 years or less?
Deed required but no registration. Lease binds as overriding interest
