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

• 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)

• 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

• 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)

• 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)

• 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

• 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

• 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

• 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

• 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

• 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)