2. The Leasehold estate


The Leasehold Estate

  • capable of being legal as per s1(1)(b) LPA 1925
  • inferior to freehold because : endures smaller slice of time- freehold only comes to an end when there is no more heirs to inherit it!
  • posessory rights are more limited to owner of leasehold because subject to limitations placed upon it by the landlord. 
  • BRUTON- made distinction between term of years- which confers proprietary estate and a lease which is merely a contractual agreement. 
  • three essential characteristics of Lease defined by Lord Templeman in STREET V MOUNTFORD- 1. A term certain ( certainty of term)
  • 2. exclusive posession
  • 3. rent- however in Ashburn Astalt v Arnold, deemed no longer an essential aspect of a lease.
  • lease will NOT exist without the first two. 
  • Certainty of term: must be a fixed and certain maximum duration! as per Lace v Chantler. Provided max duration is known WHEN the lease is granted, it is irrelevant that the lease may in fact terminate earlier. e.g presence of a break clause in the lease
  • + A certain start date: Where nothing is specficied, we assume that the lease commences upon tenant taking possession. The start date can be delayed for up to 21 years!- s49- LPA 1925 
  • S205(1) (xxvii) LPA 1925- can include a term of less than a year or for a year or years and a fraction of a year or from year to year.
  • If term appears uncertain?- courts willing to resolve uncertainty by implying a periodic tenancy where : tenant has taken posession and has started paying rent by reference to a period.
  • Prudential assurance case: period implied will be calculated on the basis upon which the rent itself has been calculated, ireesepctive of how it is being paid- martin v smith!
  • law regards a periodic tenancy as a lease for a period( the fixed and certain term) followed by a lease for that period and so on until the lease is terminated in an appropriate way- this approach is in by no means automatic and parties intentions are taken into consideration- Javad v Aqil
  • recent development in resolving uncertainty: MEXFIELD HOUSING CO-OPERATIVE LTD- supreme court found that an uncertain term should be treated as a lease for life and thus converted into a term for 90 years under s149(6) LPA- reasoning based upon pre 1926 approach in PRUDENTIAL case.
  • supreme court went further and expressed clear disapproval for the requirement of certainty of term- suggested it should be abandoned altogether.
  • BERRISFORD- the finding of a lease for life would not be possible where the tenant is a corporate body.
  • SOUTHWARD HOUSING CO-OPERATIVE LTD- high court declined to find a lease for life as it would have been directly contrary to the parties intentions and fundemental aspects of the agreement. 
  • Exclusive posession: This is the ability to exclude all others from the property, including the landlord. Without it, lease cannot exist. Posession of the land would instead be


No comments have yet been made