Tutorial 6 land law PDF

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Tutorial 6 land law...

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TUTORIAL 6 Questions 1. What is the difference between occupying a hotel room for a week and having a lease under which rent is payable weekly? -

Difference falls under exclusive possession and exclusive occupation

o Exclusive possession is in the case of the lease, under which rent is payable weekly, while exclusive occupation (licence) is the occupying a hotel room for a week. o Exclusive possession provided by a lease gives proprietary rights to the tenant. This means that they have the right to exclude everyone from their property, including the landowner. HOWEVER: Exclusive occupation (licence), the lodger may exclude everyone they want besides the landowner who still holds proprietary rights and interest over the property, unlike the lodger who only has personal rights. o Licence creates personal rights, while lease creates proprietary rights. SUPPORTING CASE: Street v Mountford  The distinction between licence and lease was established, as in licence there is an obligation to provide service (such as in a hotel room), while in a property of exclusive possession this does not occur. Primarily due to the fact that no one can enter the property to carry out services without the consent of the tenant.

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A licence to occupy the land of another which may be similar to a lease, it is more personal and binding only on those who created it Lloyd v Dugdale

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A lease is a property interest in the land itself and may be binding to others such as the subsequent owner of the reversion.

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Leases and not licences fall within the statutory machinery of the rent act 1977 and the housing act 1988 restricting the ability of landlords to remove tenants and set rent

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A tenant may sue a person in trespass, but a licensee only enjoys a narrow right

2. Albert and Bertha decided to set up home together and to live as a couple. They found a one-bedroom flat in Mile End and agreed with the landlord, Schuyster, to lease it from him. Schuyster did not want their agreement to create a valid lease. Therefore, he asked them to sign separate agreements and pay £80 each per week to make up the £160 per week total rent. The agreement was a standard form lease bought from the Oyez legal stationery shop but with the word ‘lease’ blanked out with Tipp-Ex and replaced with the word ‘licence’ written in thick felt tip. The flat had two single beds in the bedroom. They persuaded Schuyster to let them replace the single beds with a double bed that they would share. The agreement contained a term that Schuyster’s sister Cruella would come in to clean every Tuesday. Advise the parties whether or not they have a lease. Requirements for the formation of a lease: a) Certainty of term (commencement and maximum duration): -

There is no clear commencement date stated, however under section 149 of LPA 1925 the commencement date is implied when the tenant takes over possession, therefore in this case when the couple takes possession.

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Maximum duration of time: It is not stated in the agreement, however there is an indication that the payment may be done weekly which could qualify as the maximum duration in the absence of the certainty of the length of the agreement.

b) Exclusive possession -

There is no exclusive possession since they cannot exclude others from the property and they have the execution of a service granted to them by the landlord, which in this case is his sister coming to clean every Tuesday (this is something granted by the landlord that could easily prove that this is a lease and not a licence) Case: Marchant v Carters  service= no exclusive possession Even though it is called a licence it is still a lease

Antoniades v Viliers Mikeover Ltd v Brady c) Payment of rent -

There was a payment of the rent- 80 pounds weekly Case: Brown v Gold  states that the rent amount must be certain

3. Posh, Sporty, Scary, Baby and Ginger agreed to lease a flat from Shyster. The flat had five bedrooms, with shared kitchen, living room and bathroom. Shyster left it to the five friends to decide who had which room. Bossy Ginger occupied the largest bedroom but the other rooms were much the same size. Shyster retained a right to introduce a new tenant if one of the others left. He also had the right to introduce a tenant whenever he wanted to live in the living room on the sofa, provided he cut the rent paid by the others. Ginger moved out of the flat, to take singing lessons elsewhere, and so the other four moved their friend Kylie in. Shyster agreed to the change. Scary took over the largest bedroom. Shyster wishes to argue that they only had a licence. Advise him. Joint tenancy and multiple occupancy agreement: -

A licence as opposed to a lease may exist in the case when two or more people occupy the property as in the shared houses, under a multiple occupancy agreement. This does not mean that they cannot be leaseholders but rather that to be leaseholders the four unities need to be present so as to support they joint tenancy of the leasehold estate.

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Therefore the issue turns to the nature of the multiple occupancy agreement: if four people occupy the property of a four bedroom house, but each signs a different agreement on different days and for different rents ,there is no exclusive possession of the entire premises because there is no unity of interest, title or time.

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The house as a whole cannot be held on a lease, as the necessary conditions of a joint tenancy of a leasehold estate do not exist. - Each occupier may have a lease

of his individual room, with a licence over the common parts, which is very different from a single, jointly owned leasehold estates of the whole premises....