Lease
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- Created by: Olivia Jenkins
- Created on: 16-05-15 14:41
What is a lease
- A lease is a form of ownership of land, it lasts for a specified peiord of time
- A lease may take the form of a legal estate or it may be an equitable interest depending on the formality used to create it
- If a person occupies under a lease they have more protection than one who occupies under a licence
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Grant of exclusive possession
- The most contentious and complex requirement for a lease
- Looks to legal entitlement rather than what is actually going on in practice
- Needs to be distinguished from exclusive occupation which does relate to what is happening in practice
- If a person has exclusive possession this raises a presumption of exclusive possession
- If a person does not have exlusive possession then they do not have a lease
- It is therefore necessary to establish exclusive possession (Somma v Hazellhust) (Street v Mountford)
- Exclusive occupation is also required in commercial agreements
- Terms permitting the landlord to enter at a reasonable hour for the purpose of inspecting the state of repair and cleanliness was not inconsistent with exclusive possession (Bruton v London and Quadrant Housing Trust)
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Lodgers
- A lodger is a licencee as oppose to a tenant
- A lodger is one who shares occupation of the premises with the owner
- A lodger does not have the right to exclude the owner from the premises
- The owner may provide services to the lodger such as means and cleaning services
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Provision of services
- Provision of services is likely to be indicative of a lodger relationship and will generally prevent a finding of exclusive possession (Crancour v De Silva) (Marchant v Charters)
- Long term hotel residents are licensees due to the provisions of services (Appah v Parncliffe Investments Ltd)
- The majority of residents in care homes are also mere licensees (Abbeyfield Society v Woods)
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Retention of keys
- Where the owner retains the keys, this does not automatically prevent a finding of exclusive occupation. It depends on the reason they keys were retained (Aslan v Murphy)
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Shared Occupancy
- Where there is shared occupancy this could be classed as individual licenses or a joint tenancy
- This will depend upon the facts of the case and decided on a case by case basis
- AG Securities v Vaughan
- Antoniades v Villiers
- Mortgage Corporation v Ubah
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Service Occupancy
- Where the occupation arises through employment this is likely to create a licence as oppose to a tenancy
- To determine if an occupation is one of service, the test applied is whether the servant is required to occupy premises in order to better perform his duties as a servant (Smith v Seghill Overseers)
- This covers occupation by those in the armed forces (Fox v Dalby)
- A clergyman in a church (Glasgow Corp. v Johnstone)
- If the terms of the employment do not require the servant to reside in the premises, a lease may be granted
- Murray Bull v Murray
- Facchini v Bryson
- Norris v Checksfield
- Lord Denning seemed to suggest otherwise
- Crane v Morris
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Social and domestic agreements
- In social and domestic agreements between friends and familiy, it is presumed that there is no intention to create legal relations and therefore a licence is created rather than a lease
- Jones v Padavatoon
- Cobb v Lane
- Booker v Palmer
- Heslop v Burns
- The presumption may be rebutted on the facts of the case
- Nunn v Dalrymple
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For a period of time which is certain
- According to Street v Mountford, to create a lease the grant must be for a certain period of time
- There must be an identifiable start date and there must be certainty as to the duration of the lease
Commencement Date
- When no commencement date is specified in the agreement, it will not create a valid lease (Harvey v Pratt)
- If the commencement date is not certain but clearly defined this will create a valid lease
- Brilliant v Michaels
- Swift v Macbean
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Certainty as to the maximum duration
- A lease is invalid unless it has a fixed maximum duration
- Say v Smith
- Berrisford v Mexfield Housing
- Hardy v Haselden
- Difficulties arise when the duration of the tenancy is defined by the happening of an event
- Lace v Chantler
- Great Northern Railway v Arnold
- Ashbury Anstalt v Arnold
- Prudential v London Residuary
- A lease granted for life would be saved by s 149(6) LPA 1925 which provides that such leases are to take effect as a lease granted for 90 years determinable on death of that person
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Payment of rent
- Whilst Street v Mountford refers to the requirement of rent to create a tenancy, this is not always strictly enforced (Ashburn Anstalt v Arnold)
- Absence of rent may be indicative that no tenancy was intended (Colchester Council v Smith)
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