True/False Quiz

With the exception of the first question, answer the questions below based on the facts of this short scenario. In 2004, A, the registered freehold proprietor of No. 1 Main Street, made a contract with B to grant a lease for as long as he remained unmarried. B then went into possession of the property and five years later remained unmarried. A however now wishes to sell the property and is worried that the existence of B's interest will deter purchasers. He is therefore keen for B to leave. B has been paying rent on a quarterly basis. A has also granted a licence for No. 2 Main Street to C. C has granted exclusive possession of No. 2 Main Street for one year to D at a rent of £100 a week. A wishes D to leave the property.

Statute Quiz

Here you should outline the main effect, role, etc. of the provisions below. This is designed as a guide to the most important provisions, and as a means to improve your recall of the statutory provisions.

Case Law Quiz

Here you should attempt in one or two sentences to outline the main points to be taken from these cases and also three or four key words with their subject matter. This should assist in revision.

Short Answer Questions

Podcasts

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Podcast Script

This podcast examines the requirements of exclusive possession, term and rent for leases.

The previous podcast in this series finished our discussion of multiple ownership with a focus on the operation of TLATA to land with successive ownership interests. We now turn to the leasehold estate, one of the two estates in land, and in particular we are looking at the key issues of exclusive possession, term and rent.

A lease is an estate in land that confers exclusive possession on the leaseholder. Its elements, as defined in Street v Mountford are exclusive possession for a term at a rent. But these elements have become less certain recently. Instead now it may be better to consider the leasehold as exclusive possession for a limited period. This podcast will examine what exclusive possession means. In the second part of this podcast we will look at the requirements of rent, and of a defined term.

(1) Exclusive possession

Exclusive possession is often seen as the feature that will distinguish a lease from a licence. This makes it important to know what is meant by exclusive possession. The first thing to note is that the terms used by the parties in their agreement will not be determinative of the reality of that agreement. An agreement called a licence agreement may in fact create a lease. Similarly a lease agreement does not need to use the words exclusive possession in order to be the foundation of a lease. Instead this is a question of fact. Does the occupier in fact have a right to exclusive possession conferred on them?

Generally speaking if the landlord provides services to the occupier, this will be considered a licence because services, such as cleaning, are inconsistent with exclusive possession. Similarly, it will be inconsistent with exclusive possession if the landlord keeps keys to enter and leave at will.

What happens where there is more than one occupier? How can this be a lease? This depends on whether the occupiers together can be said to have exclusive possession of the whole so that together they are joint owners of the lease. Again this will depend partly on the issue of services. Unlike single occupier cases however it must also be shown that the four unities are present such that there can be joint ownership of one interest. For more on this, see chapter 4. If these are not present, there cannot be a lease of the whole. A third alternative would be that each occupier has a lease of their own room. In order to determine this it must be shown that the occupier has exclusive possession of that room. Can he keep his flatmates out as well as the landlord? This may be difficult to show.

The final issue is the notion of sham agreements and mere pretence. In Antoniades v Villiers it was highlighted that landlords will sometimes include the provision of services in the lease that they never in fact intend to provide. In such cases the court will consider the reality of the situation and is likely to conclude that there is a lease despite the terms of the agreement.

(2) Certainty of term

Whilst certainty of term in one sense is still a requirement for a valid lease, Berrisford v Mexfield a 2011 decision of the Supreme Court has altered how we think about this. The court explains that whilst the end point must still be certain, if the lease is drafted in such as way that this is not the case the lease can be treated as a 90 year lease determinable on death and any other provision for determination made in the lease. The case does not get rid of the requirement that the term be certain, at least formally, but it does alter its application. It will be worth reading this case if you have not done so already.

(3) Rent

Rent is not required for a lease. It is possible to have a gratuitous lease as Ashburn Anstalt v Arnold makes clear. This is highlighted by section 205(1)(xxvii). Rent may be useful though because firstly it will be evidence of an intention to create a legal relationship and secondly in the case of a periodic tenancy it can be used to measure the length of the tenancy.

The next podcast will discuss easements. Today's key concepts- exclusive possession, term and rent.