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What is a lease

  • A lease is a form of ownership of land, it lasts for a specified peiord of time
  • A lease may take the form of a legal estate or it may be an equitable interest depending on the formality used to create it
  • If a person occupies under a lease they have more protection than one who occupies under a licence
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Grant of exclusive possession

  • The most contentious and complex requirement for a lease
  • Looks to legal entitlement rather than what is actually going on in practice
  • Needs to be distinguished from exclusive occupation which does relate to what  is happening in practice
  • If a person has exclusive possession this raises a presumption of exclusive possession
  • If a person does not have exlusive possession then they do not have a lease
  • It is therefore necessary to establish exclusive possession (Somma v Hazellhust) (Street v Mountford)
  • Exclusive occupation is also required in commercial agreements
  • Terms permitting the landlord to enter at a reasonable hour for the purpose of inspecting the state of repair and cleanliness was not inconsistent with exclusive possession (Bruton v London and Quadrant Housing Trust)
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  • A lodger is a licencee as oppose to a tenant
  • A lodger is one who shares occupation of the premises with the owner
  • A lodger does not have the right to exclude the owner from the premises
  • The owner may provide services to the lodger such as means and cleaning services
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Provision of services

  • Provision of services is likely to be indicative of a lodger relationship and will generally prevent a finding of exclusive possession (Crancour v De Silva) (Marchant v Charters)
  • Long term hotel residents are licensees due to the provisions of services (Appah v Parncliffe Investments Ltd)
  • The majority of residents in care homes are also mere licensees (Abbeyfield Society v Woods)
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Retention of keys

  • Where the owner retains the keys, this does not automatically prevent a finding of exclusive occupation. It depends on the reason they keys were retained (Aslan v Murphy)
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Shared Occupancy

  • Where there is shared occupancy this could be classed as individual licenses or a joint tenancy
  • This will depend upon the facts of the case and decided on a case by case basis
  • AG Securities v Vaughan
  • Antoniades v Villiers
  • Mortgage Corporation v Ubah
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Service Occupancy

  • Where the occupation arises through employment this is likely to create a licence as oppose to a tenancy
  • To determine if an occupation is one of service, the test applied is whether the servant is required to occupy premises in order to better perform his duties as a servant (Smith v Seghill Overseers)
  • This covers occupation by those in the armed forces (Fox v Dalby)
  • A clergyman in a church (Glasgow Corp. v Johnstone)
  • If the terms of the employment do not require the servant to reside in the premises, a lease may be granted
  • Murray Bull v Murray
  • Facchini v Bryson
  • Norris v Checksfield
  • Lord Denning seemed to suggest otherwise
  • Crane v Morris
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Social and domestic agreements

  • In social and domestic agreements between friends and familiy, it is presumed that there is no intention to create legal relations and therefore a licence is created rather than a lease
  • Jones v Padavatoon
  • Cobb v Lane
  • Booker v Palmer
  • Heslop v Burns
  • The presumption may be rebutted on the facts of the case
  • Nunn v Dalrymple
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For a period of time which is certain

  • According to Street v Mountford, to create a lease the grant must be for a certain period of time
  • There must be an identifiable start date and there must be certainty as to the duration of the lease

Commencement Date

  • When no commencement date is specified in the agreement, it will not create a valid lease (Harvey v Pratt)
  • If the commencement date is not certain but clearly defined this will create a valid lease
  • Brilliant v Michaels
  • Swift v Macbean
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Certainty as to the maximum duration

  • A lease is invalid unless it has a fixed maximum duration
  • Say v Smith
  • Berrisford v Mexfield Housing
  • Hardy v Haselden
  • Difficulties arise when the duration of the tenancy is defined by the happening of an event
  • Lace v Chantler
  • Great Northern Railway v Arnold
  • Ashbury Anstalt v  Arnold
  • Prudential v London Residuary
  • A lease granted for life would be saved by s 149(6) LPA 1925 which provides that such leases are to take effect as a lease granted for 90 years determinable on death of that person
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Payment of rent

  • Whilst Street v Mountford refers to the requirement of rent to create a tenancy, this is not always strictly enforced (Ashburn Anstalt v Arnold)
  • Absence of rent may be indicative that no tenancy was intended (Colchester Council v Smith)
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