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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.

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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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