F106LAW Leasehold and Licence

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Leasehold or Licence

Principles for lease and licence issues are set out in Street v. Mountford where Lord Templeton held that it was a Tennancy although discribed as licence it was in fact a lease

Apply the essentials principles to determine.

  • Is there in 'reality' exclusive possession- should confer this in the contract
  • Certainty of term fixed periodic - check against income from rent
  • Have the correct formalities been undertaken s.52(1) LPA

Contrast with Licence: Basic permission to enter land and do something which there would otherwise have no right to do.

they are not protected by the LTA 1954 part II, do not offer a proprietary interest; not binding on 3rd parties ie buyer of a reversion; covenants can only be applied in some circumstances ie contractural licences; not always exclusive posession, released on death of grantor/ee and on assignment by grantor/ee

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Characteristics of Lease

Grants an interest in land and as such must be made by deed s.52(1) LPA 1925 and the grantor must retain a reversionary interest

Term must be certain or periodic which can be voided under uncertainty

Lace v. Chantler duration of the war (too uncertain)

Prudential Assurance v. London Residary Body lease granted until 2 months notice was give

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Characteristics of lease

The reality of a lease agreement (tennancy)

exclusive possession confered in the agreement

intention if not in writing then what is intended

factual matrix everying in context of the actual facts

sham agreements disguise a tenancy, no exclusive tennancy rights, installing themselves on the premises

AG Securities v.Vaughan & Antoniandis v. Villiers seperate and joint agreements

Aslam v. Murphy provision for sharing unrealistic

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Characteristics of lease

Special Circumstances that will rebut exclusive possession

  • owner in possession
  • mortgagee in possession
  • a trespasser
  • no intention to create legal intentions Cobb v.lane family arrangements and Booker v. palmer act of generoisty
  • service users Norris v. checksfield as part of employment better perform duties
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