Leases

what is a freehold

is a tenure. Historically speaking it is not an 'estate'. In this regard freehold should not be thought of as a synonym for the the 'fee simple absolute.'  The fee simple absolute is about how and of whom land is held. Not for how long land is held.

what is a leasehold

An estate in land which can be legal or equitable. The lease is carved out of the freehold. Different estates within it

What is a legal interest

-          Every relationship to the land which is not an estate:

o   E.g. legal easement

o   E.g. legal mortgage

-          (Recognised by the ordinary law – not Equity)

-          Lawyers language – interest in property

-          Everything that isn’t an estate

Before Law of Property Act 1925

  estates (ownership rights) piloted through by lord Birkenhead

o   Pre this was usually for aristocrats, ensure estates passed through to heirs

o   Jane austens effect on English law

Sparkes, ‘Certainty of Leasehold Terms’ (1993) 109 L.Q.R. 93

- Leases must be for a certain term (know when the started, how long they will, and when they will end)

- Idea of a certain term is incredibly important in regards to certainty of term, and it required to allow the smooth transactional nature of business

Is the Lease a Contract 

   Law of Property Act 1925; s.205 (1) (xxvii)

-  Professor Barr, Dr. Picton, Professor Bright argue it should be viewed as a contract

License v lease case law

Thomas v. Sorrell

Errington v Errington & Woods

Ashburn Anstalt v. Arnold

-          Thomas v. Sorrell (1673) Vaugh 330:

  ‘[a licence] properly passeth no interest nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.’

- License is enforceable against another person (e.g. someone renting out a property)

- Can be on land without permission as trespassing

  Errington v. Errington & Woods [1952] 1 K.B. 290

-          Leases, in contrast to licenses, are binding on successors to the freehold

-          Father, his wife, son and daughter in law

-          Father bought the house for son and d to live in, 250 in cash, borrowed 500 from building society, s and d paid the building society payment on mortgage

-          ‘house will be your propery when the mortgage was paid’ father, clear not s and d property, but they had a license to occupy

-          Father died before house paid off, left all his property to his wife, tried to evict the daughter in law, licenses don’t bind successors and had the right to do so,

-          Through equity, court of appeal gave s and d authority to stay there

If they had a lease they would have been fine

Ashburn Anstalt v. Arnold [1988] 2 All ER 147

  Rent Not essential for the existence of a lease in cases of exclusive possession - whilst this is not the norm,

exclusive possession

essential for a lease, proves that they are in sole possession of the property through different acts

case law on certain term

-          Lace v. Chantler [1944] KB 368

-          Prudential Assurance Co Ltd v. London Residuary Body [1992] 3 All ER 504

-          Skipton Building Society v. Clayton (1993) 66 P&CR 223

-          Berrisford v. Mexfield Housing Co-op [2011] UKSC 52

-          Javad v. Aqil [1991] 1 W.L.R. 1007

Lace v. Chantler [1944] KB 368

- C let the house ‘for the duration of the war’ ww2

- No certainty of the term

- Not determinable, lease or license- cant be a lease as no certainty of term

- Court held license

  Prudential Assurance Co Ltd v. London Residuary Body [1992] 3 All ER 504

-          Market stall case

-          Important House of Lords case, fixed term rule,

-          He was left with land at cheap rate for 60 years, council sold the land and new purchaser tried revoking his tenancy, able to do so as it was not for a certain term

-          Therefore no protection of the lease

-          Law of Property Act 1925, s.149(6

-          Applying the exception to the fixed term rule

-          Set up a lease of the lifetime, law wont let it fail, but the section creates automatic lease of 90 years

-          Skipton Building Society v. Clayton (1993) 66 P&CR 223

Couple sold home, subject to an agreement they could live in it for free for the rest of their lives, court had to decide what kind of property right they had

-          Found lease of 90 years, no such thing as a lease for life, this is next best thing

-          Couple receives the protection

Berrisford v. Mexfield Housing Co-op [2011] UKSC 52

-           Ms Berrisford freehold owner of property in London, difficulty paying mortgage, sells to Mexfield

-          Device for bank to get hands on property

-          Mexfields attempts to kick out B, she had expected to live their for life

-          Supreme court held the lease was for 90 years, uncertain terms made certain, turns on the LPA s149(6)

Periodic terms

-          A MAJOR exception to the fixed term rule because periodic terms can just roll on indefinitely.

-          Tenancy ‘month to month’ or ‘week to week’

-          Terminable at the end of a month, or a week.

Javad v. Aqil [1991] 1 W.L.R. 1007

-          Clear here that there was not a mutual intention due to their disagreements, was no lease

Justify a periodic lease

-          Prudential Assurance Co Ltd v London Residuary Body [1992] 3 All ER 504: [certainty is provided] because each party has power by notice to determine at the end of any year

Exclusive poseesion cases

street v mountford

aslan v murphy

AG securities v vaughan

westminster city council v clarke

gray v taylor

bruton v London Quadrant Housing trust

Berrisford v. Mexfield Housing Co-op [2011] UKSC 52

street v Mountford Lord Templeman 3 characteristics

facts - s gave M right to occupy 2 rooms, 37 per week, M agreed no lease but no evidence of no EP

1 - right to place other people in occupation of property

2 - come in with cleaners

3 - keep a key

Held - was a lease

Aslan v Murphy

all of which negate EP, in this case was a sham license and occupier satisfied EP as none of the clauses were satisfied, slight criticism of Mountford, developmental

Lord Donaldson in Aslan on keys

landlord owning keys doesn’t automatically exclude EP, nut reasoning for them does

AG Securities v. Vaughan

seperate agreements can be read together for couples

Westminster City Council v. Clarke

no EP if defeats purpose - temp accoms at a hostile for single men with personality dis, defeat purpose if there was a lease

Gray v. Taylor

reinforces Westmin, judges judge cases on a case by case basis

Berrisford v. Mexfield Housing Co-op

only Mrs Berrisford could determine the lease, had lease for ‘as long as rent is paid’ - zimber v abrahams - converts to ‘lease for life’

lease for life X, 90 years lease next best thing s149(6)

Distinguishing Maxfield

Southward Housing co-op v Walker - no intention to create lease for life

Bruton v. London and Quadrant Housing Trust 1999

‘non-proprietary tenancy’ - LQH licensees themself to council, Bruton claimed disrepair and sued under s11 landlord and tenant act 1985

held - Bruton WAS a tenant, granted EP, Bruton tenancy

kay v london Borough of Lambeth council

non - estate tenancies did not bind lamberth, occ had no binding interest and no article 8 defence

Formalities - deeds and leases

leases need a deed unless for 3 years or less

LPA 1925 - ss52 &54 ‘in the interests of fairness and justice enforced by the courts’ - equity may step in

a deed in land law

written doc clearly transfering legal estate or interest, needed for leases over 3 years

walsh v lonsdale

7 years, agreement with no deed, demanded year in advance payment, walsh sued and was protected by an equitable lease, but not a legal one

Lee v. Leeds City Council

mould in homes, didn’t extend at the time - the landlord and tenants act 1985 s11 enabled repairs, renters act of may 1st 2026 enforces serious mould to be appropriately delt with within 24 hours