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Leases Intro Notes

GDL Law Notes > GDL Land Law Notes

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A more recent version of these Leases Intro 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:

Revision: Land

[LEASES: INTRO]
Distinction between a lease and a licence

*

Lease: o

Creates an estate in land: right of exclusive possession enforceable against all others including landlord

*

o

Conveys overall control over property

o

Can be transferred (assigned)

o

Capable of binding a new freehold owner

o

Tenant can sue a 3rd party for nuisance or trespass

Licence: o

Not an estate in land but simply a personal permission to be on the land (justification for trespass)

o

Incapable of binding a new freehold owner

o

Licensee cannot sue a 3rd party for nuisance or trespass

Is the interest granted a lease?
Street v Mountford (HL): look at the substance not the form

*

Overruled Somma v Hazelhurst where courts gave weight to the label rather than underlying substance

*

Lord Templeman's dicta: You must call a fork a fork

*

The document was described throughout as a licence - but it was in fact a lease o

Express reservation in the document for the landlord to have limited rights to enter and view the premises and repair/maintain premises emphasises that the grantee had exclusive possession

o

Mr Street provided neither attendance nor services and only had limited rights to inspection/maintenance - so Mrs Mountford was a tenant

*

Street v Mountford made it clear that for a lease to exist there must be:

1. Certainty of Term AND: 1

Revision: Land

[LEASES: INTRO]

2. Exclusive Possession o

But rent is NOT essential : s205 (xxvii) LPA 1925 - confirmed in Ashburn Anstalt v Arnold

Certainty of Term

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Must be granted for a certain duration (either fixed term or periodic term)

*

If there is no certainty of term there will be no lease

Exclusive Possession: (Right to exclude all others including the landlord)

*

*

Bruton v London and Quadrant Housing Trust: o

Lease created despite absence of crucial prerequisite that lessor has a legal estate in land

o

Demonstrates the importance of exclusive possession (controversial case)

Westminster C.C v Clarke: o

Here there was a license as there was no exclusive possession

o

Hostel residents were not entitled to any particular room and could be required to share with any other person

o

*

Council representative could enter at any time

Landlords may try to disguise the fact that exclusive possession exists with sham clauses - but following Street v Mountford labels are

Potential exclusive possession scenarios:
? Retention of a key

*

Aslan v Murphy: 'the courts would be acting unrealistically if they did not keep a weather eye open for pretence' per Lord Lymington MR o

Here the agreement was labelled a licence - the occupier agreed to be out of the house for two hours every day but this was never enforced: this was a sham clause to make it appear like a license

*

Landlord retaining a key may indicate that occupant does not have exclusive possession o

But: if it is used only by arrangement or in an emergency then exclusive possession may still exist (a key is not magic) 2

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