Leases

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  • Created by: Hope
  • Created on: 12-05-16 21:01
What is a lease?
A legal estate in the land
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What is the dual nature of the lease?
On one hand, it is a contract for temporary and conditional use of land, on the other it is a property right in the form of a leasehold estate
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What is a Landlord?
They grant the lease to the tenant, they have a superior state in the land, aka lessor
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What is a tenant?
Tenants can sub-let to other people aka Lessee
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What are the types of leases? What are the main ones?
fixed term, periodic, tenancy at will, tenancy at sufferance. Fixed term and period are most important
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What are the characteristics of a fixed term lease?
Lease granted for fixed period, long or short, lease is created expressly and terminates when the fixed period has expired
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What are the characteristics of a periodic lease?
It continues from period to period, it may be created expressly, if so the lease will state the relevant reference period, it may also be created by implication
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What are the characteristics of a tenancy at will?
Person occupies land as T with consent of LL, but either T or LL can end the tenancy at any time, usually arises when T moves in as negotiations are on-going
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What are the characteristics of a tenancy at sufferance?
Arises where T 'holds over' at the end of a tenancy, LL expresses neither consent nor dissent - consent = tenancy at will, dissent = trespass
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Which statute provision defines leases?
s205 (xxvii) LPA
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What are the characteristics of a lease? Authority?
Street v Mountford - exclusive possession, maximum certain duration, rent
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What are the two basic principles of maximum certain duration?
Lease must have a start time which is certain, lease much have an end time which is certain
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Which case set out this principle? Which case confirmed it?
Lace v Chantler - war wasn't certain enough. Prudential Assurance Co Ltd v London Residuary Board- maximum time on a lease but you can still end it with notice if you want
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What is the alternative contractual approach? Authority?
Ashburn Anstalt v Arnold- court gives effect to whatever was agreed, certainty of duration doesn't matter
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Do we still use it?
No, it was overruled by Prudential
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Which case ignited the discussion again? What was the ruling?
Maxfield Housing Co-op Ltd v Berrisford- when an agreement was concerning an individual and had no maximum duration but was intended for their lifetime, then a lease for life was created- not often used
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What was the other rule in Maxfield?
Potentially when an agreement fails as a lease because it contains uncertain terms, the the occupant would have a contractual licence on the terms of the lease- less secure though
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What is the rule concerning the importance of rent? Authority?
Ashburn Anstalt v Arnold- rent is a pointer to the existence of a lease, but not the end all.
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How important is exclusive possession?
The defining character of a lease, central distinction between lease and licence
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What is a case example that turns on the existence of EP?
Street v Mountford
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What does EP mean?
The tenant has the right to control the premises; right to decide who enters and when, immunity from supervision etc.
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What can a tenant do?
They can exercise the rights of an owner of the land
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What is a licence?
A licence basically stops you from being a trespasser, its a personal permission to use the land, not a property right. You don't get a lot of remedies/protection
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Why is the distinction important?
You don't get a lot of statutory protection as a licensee
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What are the advantages of having a licence?
More flexibility at common law, you can transfer your licence, or if the freehold owner transfers their right of reversion, its easier to be a licensee than a lessee
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How do courts decide whether a tenant has EP?
Look at the substance of the agreement- LL has an incentive to make it look like a licence when it isnt
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What are 'sham' terms?
Terms inserted into the agreement to make it look like a licence but don't represent the intentions of the LL
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What was the old approach to testing for EP? Example?
Taking the agreement at face value; Somma v Hazelhurst
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What is the new test? Authority?
Street v Mountford overruled Somma, look at substance not form and ask "what did the parties really intend?"
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What kind of terms make leases look like licences?
Multiple occupants, services, right to introduce a 3rd party, retention of keys, vacate the premises, labels
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How can you show EP if there are multiple occupants/the right to introduce a 3rd party?
You have to show that all the people occupying the premises are effectively one person with EP. They need to show they have a JT and so the 4 unities
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What happens if you don't have the 4 unities?
The occupants can't be JTs and can't have EP= no lease
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What is the effect of a term introducing a new occupant into the premises on EP? Example?
The critical question is what is the true nature of the arrangement?- AG Securities v Vaughn- looked like a licence, was a licence
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What can you compare this ruling with?
Antoniades v Villiers- never introduced anyone, operated like one person = lease
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Are there any guidelines of surrounding circumstances to look for? Authority?
Stribling v Wickham- Any relationship between occupiers, course of negotiation, nature and extent of accommodation, intended actual mode of occupation
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What happens if the true bargain is that the LL provides services which require unrestricted access to the premises? Authority?
If that is the case, there is no EP.- Street v Mountford
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What does unrestricted access mean? Authority?
Huwyler v Ruddy- 20 mins a week of unrestricted access still counts. Vandersteen v Agius- service was for an extra sum- separate agreement
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How can the courts decide whether the term giving the LL access is a pretend term?
There are two approaches; Aslan v Murphy (did the LL ever exercise their right to enter?), Crancour (what was the degree of access the LL required in order to provide the service)
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Does refusing to accept services mean EP?
No, if it looks like the LL was truly intending to provide services- if you changed your mind later and wanted to get the services, then the LL has to provide them
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What else can indicate 'sham' term of EP?
Is it part of a collection of sham terms, does the rest of the agreement look truthful, did the LL ever provide them, would anyone likely provide those services/ask for them?
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What do you need to show to satisfy the Crancour test?
That the parties never intended that the service provision would operate between them
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What is the basic rule concerning retention of keys by the LL? Example?
If the LL retains keys to exercise unrestricted access there is no EP, and if the LL retains keys only to exercise right to 'enter, view and repair' the occupier can still have EP. Aslan v Murphy
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What rule was confirmed in Aslan v Murphy?
It didn't matter what labels were attached to the agreement, they are never conclusive
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Can there ever still not be a lease with EP? Under what circumstances?
In some circumstances- employees, friends/family
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When can employees not have a lease? Example?
When they occupy the land as a consequence of their employment, under a service occupancy. Smith v Sedgehill Overseers- when employee is required to occupy premises for job, they are a licensee
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What is the case in a familial relationship? Example?
Faccini v Bryson- Lord Denning said friends/family negate intention to create a tenancy at all. Errington v Errington- No intention to create legal relations
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What are the basic formalities for creation of a lease?
Creation of interest is done via deed, for short leases under 3 years there are no formalities, formalities don't apply to assignment "Crago v Julian"
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What do you need to create an equitable lease?
contract just needs to be valid, and in writing, signed with all the terms
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What is wrong with equitable leases?
Specific performance is discretionary remedy and equitable lease more vulnerable to 3rd parties
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Other cards in this set

Card 2

Front

What is the dual nature of the lease?

Back

On one hand, it is a contract for temporary and conditional use of land, on the other it is a property right in the form of a leasehold estate

Card 3

Front

What is a Landlord?

Back

Preview of the front of card 3

Card 4

Front

What is a tenant?

Back

Preview of the front of card 4

Card 5

Front

What are the types of leases? What are the main ones?

Back

Preview of the front of card 5
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