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Leases Essential Characteristics Notes

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A more recent version of these Leases Essential Characteristics notes – written by Cambridge/Bpp/College Of Law students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Land: Leases - Essential Characteristics Distinction: Lease vs Licence

Lease (tenant)

Licence (licensee/lodger)

proprietary right: estate in land.

personal right: permission to be on land.

- exclusive possession: inc. vs. landlord.
- can be transferred (assigned).

right in rem: can bind 3rd parties.

does not bind 3rd parties (subject to estoppel/CT).

- binds new freehold owner.
- can sue 3rd party for nuisance / trespass.

statutory protection: security of tenure - Rent

no protection.

Act 1977 (but: Housing Act 1988: assured shorthold tenancy ? reduced residential tenants' security).

- Important distinction: affects rights of parties. landlords prefer licence: avoid tenant's security of tenure ? try to present grant as licence. business arrangements: Rent Act 1977 still applies to tenancies. repair covenants in residential tenancies: if contained in lease ? Landlord and Tenant Act 1985.

Test for a Lease: Street v Mountford [1985; HoL].

- Street v Mountford [1985; HoL]: substance not label. substance over label: if agreement satisfies requirements for tenancy, tenancy created.
[Ld Templeman]: a fork is a fork even if called a spade. previous formal approach overruled (Somma v Hazelhurst [1978; CoA]). requirements for lease: if not present, arrangement can only be a licence.

1. certainty of term (fixed or periodic).

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