HWLS LLT Leases v Liscences

Lease/ tenancy (Islington v Green v Anor

contractually binding agreement not referable to any other relationship between the parties, by which one person gives to another the right to exclusive occupation of the land for a fixed or renewable period or periods of time in return for periodic payments of money

Licence

landowner's TEMPORARY permission to enter onto the premises for a given purpose, and without which the person entering would be a trespasser

Bare Licence

a licence granted without any valuable consideration to support it

Contractual Licence

permission to enter upon the premises in return for valuable consideration

When can licenses be revoked

Licenses can be revoked at any time

Difference between a lease and a licence

Whereas a lease or a tenancy confers on the tenant an interest in the land demised, a licence confers no such interest

Issac v Hotel de Paris on Licences

A licence is a mere personal privilege

Street v Mountford on exclusive possession

The tenant possessing exclusive possession is able to exercise the rights of an owner of land, which is in a real sense his land albeit temporarily and subject to certain restrictions.

What can a tenant with exclusive possession do according to Street v Mountford

A tenant armed with exclusive possession can keep out strangers and the landlord unless the landlord is exercising limited rights reserved to him by the tenancy agreement to enter and view and repair

What can a licencee do with exclusive possession according to Street v Mountford

A licensee lacking exclusive possession can in no sense call the land his own and cannot be said to own any estate in land

What does a license do according to Street v Mountford

The license does not create an estate in the land to which it relates, but only makes an act lawful which would otherwise be unlawful

Assignment (Lease v License)

License cannot be assigned, whereas a tenant has a legal interest capable of assignment

Acquisition of Title ( Lease v License)

Tenant can acquire title by adverse possession, not a licensee

Rent restriction legislation ( Lease v License)

Licensee NOT protected by Rent restriction legislation

Enforceability against Third Parties (Lease v License)

Licenses are generally not enforceable against third parties therefore cannot sue for trespass

Must persons be capable of entering a lease agreement?

Yes they must be real or corporate

Street v Mountford on transferance of exclusive possession

The landlord must transfer exclusive possession of the demised premises to the tenant

How long should the term granted to the tenant be for?

The term granted to the tenant must be for a shorter period than that held by the landlord

Lace v Chantler on Term

Term granted must be for a fixed period or one which is determinable by notice

What is reversionary interest?

The landlord retains the right to regain possession

Street v Mountford on the characteristics of a lease

the traditional view that the grant of exclusive possession for a term at a rent creates a tenancy is consistent with the elevation of a tenancy into an estate in land

What is rent?

a tenant's regular payment to his landlord for the use of the property and must be reserved under the lease in the reddendum

How does rent affect the tenancy?

The manner in which rent is paidd will in some circumstances, define the nature of the tenancy

Street v Mountford Facts

L granted T the right to occupy a furnished room under a written agreement that stated the right to occupy the room was a license fee 37 a week, that it was not assignable, and that it offered no protection under the Rent Act

Did the appellant have exclusive possession of the room in Street v Mountford?

Yes, he did

What was the main issue in Street v Mountford

Whether the appellant was a tenant entitled to the protection of the rent act?

Street v Mountford on Freedom of Contract

But the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement.

Street v Mountford on Freedom of Contract (Lease vs Licenses)

If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy, and the parties cannot alter the effect of the agreement by insisting they only created a license.

Street v Mountford on the TEST of License v Lease

Whether an occupancy of residential accommodation was a tenancy or licence was whether, on the true construction of the agreement, the occupier had been granted exclusive possession of the accommodation for a fixed or periodic term at a stated rent, and unless special circumstances existed which negative the presumption of a tenancy

Exceptions to the rule in Street v Mountford on exclusive possession

There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who enjoys exclusive possession is not necessarily a tenant

Exceptions to the rule in Street v Mountford

1. No intention to create legal relations

2. Possession is granted pursuant to some other relationship, such as a contract of employment, vendor and purchaser

3. Landlord is a requisitioning authority with no power to grant a tenancy

Facchini v Bryson on No Intention to Create Legal Relations

In all the cases where an occupier have been held to be a liscensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity or such like, to negative any intention to create a tenancy

What does Errington v Errington say about exclusive possession?

The test of exclusive possession is by no means decisive

Booker v Plamer on Charity or Friendship

There is one golden rule which is of very general application, namely, that the law does not impute intetnion to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule

Master/Servant relationship

It is established that where a service occupier occupies his master's premises in order to perform his duties as a servant, no relationship of landlord and tenant is created

What is the test to determine whether a licence or lease is created in a master/servant relationship?

Whether the servant requires the premises he occupies in order to better perform his duties as a servant

Vendor/ Purchaser relationship

A person who is allowed to occupy property pending completion of the sale to them of the property will occupy as a licensee

Issac v Hotel de Paris Ltd

held that the relationship of the parties was not that of landlord and tenant but that of licensor and licensee. All that was intended was that the appellant should have a personal privilege of running a night bar on the premises with no interest in the land. Later when the contract fell through and notice was given to him to remove his belongings even that privilege came to an end.

Where does the exception "Landlord has no authority to grant a lease " apply

where a landlord is a requisitioning authority with no power to grant leases, then a lease of a tenancy cannot be said to arise

London Borough of Camden v Shortlife Community Housing

It was determined that a lease and not a licence was granted where LBC entered into an agreement to lease property to a housing association which provided housing for young single persons. However, based on the Housing Legislation, LBC could not dispose of land without requisite ministerial consent. LBC was not authorised to grant a lease

Demise

to lease, create a tenancy, to let

Reversion

Future interest that returns to the grantor after the lease has ended.

What is a right associated with owning the reversion?

The right to re-enter and take possession

What must be done in order for a reversion to exist

A tenant must be granted an interest in the property for a lesser term than that of the landlord, in order for a reversion to exist

Assignment

occurs where a tenant transfers the entire interest held under a lease

What happens to the original tenant ( assignor) during an assignment?

Relinquishes all rights in the property to the assignee, including the reversion

What happens to the assignee during an assignment

The assignee steps into the shoes of the assignor and becomes the new tenant

What are the four types of licenses

Bare licence, licence coupled with an interest, contractual licence, estoppel licence

Contractual Licence vs Lease

sometimes confused as valuable consideration may be rent

What is the end of a lease called?

Termination