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GDL Law Notes GDL Land Law Notes

Leases Intro Notes

Updated Leases Intro Notes

GDL Land Law Notes

GDL Land Law

Approximately 556 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...

The following is a more accessible 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:

Distinction between a lease and a licence

  • Lease:

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

    • Conveys overall control over property

    • Can be transferred (assigned)

    • Capable of binding a new freehold owner

    • Tenant can sue a 3rd party for nuisance or trespass

  • Licence:

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

    • Incapable of binding a new freehold owner

    • 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

    • 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

    • 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:

  2. Exclusive Possession

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

Certainty of Term

  • 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:

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

    • Demonstrates the importance of exclusive possession (controversial case)

  • Westminster C.C v Clarke:

    • Here there was a license as there was no exclusive possession

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

    • 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

    • 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

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

  • Clauses reserving the right to share or introduce others

  • Must look at all the circumstances to see if the right is a genuine clause or a sham to defeat exclusive possession - look at whether the right is actually exercised; wording of the clause; layout of the property

  • Antoniades v Villiers: Clause saying that a romantic couple couldn’t marry and that the landlord could introduce others – there was only room for two people – this was a sham clause and there was in fact a lease

  • Landlord provides services

  • If the landlord has unrestricted access and use of the premises there is a licence not a tenancy

  • Marchant v Charters: Landlord had control over the property

    • Services provided so the occupant was merely a lodger (cleaning each day; rubbish and dirty linen removed)

  • “Attendance” and “services” considered in Palser v Grinling (HL):

    • Services personal to the tenant provided for the benefit or convenience of the individual tenant – makes him a lodger

    • But service of the common parts does not create a licence

Exceptions: where there is certainty of term and exclusive possession yet no tenancy

  • Vesely v Levy: trustees bought a flat for occupation for the beneficiary who had mental health problems – Miss Vesely lived there as a companion and carer. Held that although she had exclusive possession of some of the rooms, the circumstances negative the inference of a tenancy

Usually a license will be found where:

  1. There is no intention to create legal relations

  • Facchini v Bryson: (Denning’s judgement) – family arrangement, act of friendship or generosity will negate any intention to create a tenancy

  • However – presumption is rebuttable: just because there is a family arrangement does not automatically mean there is no tenancy

  • Nunn v Dalrymple: CA held that despite family arrangement there was intention to create legal relations – 5 factors: 1) Act (renovation work etc.) 2) Precise terms 3) Importance to parties 4) Lack of elements of generosity 5) Any other relevant conduct

  • Heslop v Burns: A woman and her husband were provided with a cottage rent free as an act of generosity – no...

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