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Leases & Licences: Overview

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Leases & Licences: Overview

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  • lease: legal estate in land s.1(b) LPA 1925
  • licence: authorise use of land / variable length / not create proprietary interest Thomas v Sorrell / mere personal right / no formality create / express or implied permission Robson v Hallett / without permission: trespass

Licence or tenancy?

  • hallmarks of tenancy: grant of exclusive possession / for a term / at a rent Street v Mountford / rent not essential Ashburn Anstalt v Arnold
  • L cannot use artificial means / circumvent exclusivity of possession Antoniades v Villiers
  • licensees not tenants: occupiers / move in separately & under separate agreements / L leaves up to them who uses which rooms / each not responsible for entire rent AG Securities v Vaughan
  • not requirement tenancy: occupier exclusive possession keys to property / depends why owner retains keys / if for emergencies or carry work (not preclude tenancy) / if provide housekeeping services (may imply lodger not tenant) Aslan v Murphy
  • obligation to provide services not conclusive occupier licensee / must amount to unrestricted access / unrestricted access by L: daily removal of rubbish / weekly cleaning / fortnightly laundering Markou v Da Silvaesa
  • test for unrestricted access: Lís ability to access property at his convenience / contractually rather than in practice Huwyler v Ruddy
  • licensees: council hostel for homeless / special circumstances: council move occupiers rooms / require sharing / restrict visitors Westminster CC v Clarke
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Leases & Licences: Overview

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Types of licences: Bare licences

  • bare licence: granted for no consideration & provides limited rights The Calgarth
  • revoked by licensor: any time / clear request to leave Gilham v Breidenbach
  • reasonable time allow licensee to leave / if licensee complying: not allowed to use force / if not: may use reasonable force
  • benefit & burden of bare licence: purely personal & cannot pass to another

Types of licences: licence coupled with an interest

  • licence coupled with an interest: licensor cannot revoke licence / period of interest granted / burden of licence will pass with benefit & burden of interest

Types of licences: contractual licences

  • contractual licences: licence to enter building for a concert / purchasing ticket / licence acquired remain in building for duration of concert Wood v Leadbitter
  • if required to leave prior to end: claim for damages for breach of contract / tort for assault (removal from premises) / depends whether licensor has right to terminate licence Hurst v Picture Theatres / equity power to grant injunction to prevent breach of contract Winter Garden Theatre v Millennium Productions
  • if licence given for particular purpose / no right to revoke whilst purpose still exists & licensee: remains within terms of licence / necessary to consider terms Tanner v Tanner
  • licensee may assign benefit of contractual licence / licence not create an interest in land so no propriety right capable of binding successors
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Leases & Licences: Overview

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Constructive trusts & proprietary estoppel

  • burden of licence will not bind 3rd party / court may impose via constructive trust Binions v Evans or proprietary estoppel Ashburn Anstalt v Arnold
  • proprietary estoppel: owner of land / estopped from denying person expectation of licence (or revoking it) / if expectation encouraged by owner's representations

Types of lease

  • term of years absolute: fixed term / maximum length is certain
  • periodic tenancies (weekly, monthly, quarterly or yearly): may continue indefinitely / legal estate but no written deed required as period less than 3 yrs / regardless show long tenancy lasts
  • tenancy at will: relationship between T & L / express or implied / no rent or term necessary / T or L may terminate at any time / automatically ends on death either Wheeler v Mercer
  • F permitted C to occupy property in return for payment if mortgage instalments / promise to transfer fee simple when mortgage satisfied / not tenancy at will: F could not evict C at will (whilst C continued pay instalments) / C: licensee / permissive occupation as long mortgage instalments were paid / contractual right to good equitable title to house once full mortgage paid Errington v Errington
  • tenancy by estoppel: occurs if L has no or insufficient title to land when lease granted / T can dispute L's title (to require purported L repay rent paid & freed of covenants) / adverse claim necessary Industrial Properties v AEI
  • tenancy on sufferance: T holds over at end of lease / without landlord's permission / periodic tenancy or tenancy at will / or direct prohibition (result in trespass)
  • equitable lease: if contract signed to take lease & landlord refuses grant / remedy: equitable performance of contract Walsh v Lonsdale / narrow & does not affect rights of third parties Manchester Brewery v Coombs / interest affecting registered estate & needs protection by notice on charges register ( s.29 LRA 2002 )
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Leases & Licences: Overview

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Lease: certainty requirements

  • certainty rule: terms of lease (contract) must be sufficiently certain
  • fixed term tenancy : date of commencement & length / must be known at start Prudential Assurance v London Residuary Body
  • periodic tenancy / explanation: at any given point / maximum length of period known / either party may make length of entire tenancy certain: by serving notice to end
  • certainty rule has been criticised: rule should now be abandoned / for Parliament not courts Berrisford v Mexfield Housing Co-operative / defeat intention of parties / contrary spirit equity Ingram v Little
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