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Landlord & Tenant Law Notes

Law Notes > Landlord and Tenant Law Notes

This is an extract of our Landlord & Tenant Law document, which we sell as part of our Landlord and Tenant Law Notes collection written by the top tier of Oxford students.

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LANDLORD & TENANT
* RECAP * PRIVATE LAW: LEASEHOLD COVENANTS * PUBLIC LAW: PROTECTED TENANCIES/ STATUTORY CODES *

LAND LAW RECAP
* RECAP * LEASEHOLD COVENANTS * PROTECTED TENANCIES *

Intro

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Lessor (Landlord), Lessee (Tenant)

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S.1(1) LPA 1925 The only estates in land which are capable of subsisting or of being conveyed or created at law are---
(a)An estate in fee simple absolute in possession; (b)A term of years absolute

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"Term of years"

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Any period having a fixed or certain duration

"Absolute"

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No further meaning beyond that it is still absolute If it is determinable by a 3rd party on notice

The Test: Street v Mountford (1985) HL

1. EXCLUSIVE POSSESSION

2. FIXED OR PERIODIC TERM

3. RENT Labels are irrelevant - what matters is intention(4)

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Lord Templeman:

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"To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments."

(1) "exclusive possession"

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A right to exclude all other persons, including the landlord (except where he is entitled under the lease to inspect the premises and carry out repairs), from the premises - i.e. to exercise the rights of a landowner.

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The right to occupy premises for a fixed period cannot be a tenancy if the person granting the right still has general control of the property = licence. I.e. where the landlord provides cleaning services (College Rooms).

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Aslan v Murphy (1990) - a landlord retaining keys doesn't prevent exclusive possession

Terms inconsistent with the grant of EP (meaning cannot be a tenancy)

* Dresden

Estates Ltd v Collinson (1988) - A term which allows the landlord to require the tenant to move premises on the landlord's insistence is inconsistent with a right to exclusive possession

* National

Car Parks Ltd v Trinity Development Co (Banbury) Ltd [2001] - Where the agreement is between commercial parties, unless there is a sham, clauses purporting to exclude a grant of exclusive possession can be given effect to.

* ... "the court, it seems to me, must proceed on the basis that where two commercial parties have entered into an agreement of this nature, calling it a licence, they have received appropriate advice, they were aware of the importance of the term and they were intending to enter into such an agreement with an appreciation of its significance. I also bear in mind that there has been no suggestion that any of the terms of this agreement constitute a sham, in the sense that they were never intended to be acted upon as a result of some other agreement between the parties." (Arden LJ)

(2) "fixed or periodic term" Prudential Assurance v London Residuary Body (1992)

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All leases of land must be for a term of certain duration. Lease granted until the road needed widening was uncertain, no valid lease

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Provided the maximum duration is fixed the lease may be determinable on any uncertain event happening within that term

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'A tenancy from year to year is saved from being uncertain because each party has the power by notice to determine at the end of any year. The term continues until determined as if both parties made a new agreement at the end of each year for a new term the ensuing year' (Prudential Assurance, 394 Lord Templeman)

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a fetter on a right to serve notice to determine a periodic tenancy is ineffective if the fetter is to endure for an uncertain period, but a fetter for a specified period could be valid.

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