Lease and licence

2008 zone A Q6

- Street v Mountford examine the significance of the street principles and its application
in subsequent case laws.
- To focus on Lord templeman recognise that there were exceptions to the principles
- However in practice, in most instances the lease licence distinction rested on whether or
not there was exclusive possession.
- Examine the circumstances where the landlord provided services or retained a key giving
him access or the landlord excluded the occupier from the land at certain times. The issue
here is whether exclusive possession would be negative.
- Aslan v Murphy ; Huwyler v Rudey
- What have been the attitude of the court on sham devices?
- Antoniades v villiers ; AG's Securities v Vaughen
- Concerns multiple agreements which have come under particular scrutiny and the courts
have shown themselves reluctant to interpret licence agreement as creating a JT carrying
with it joint liability for the rent (Stribling v Wickham ; Mikeover v Brady)
- Discuss the application of the street principles in relation to the HL's decision in Brutton
v London and Quadrant Housing Trust 2000 which seems to blur the lease licence
distinction by recognising the possibility of a non-proprietary lease.
- S.1 of the LPA 1925 clearly identifies two estates in land that may exist in either
common law or equity. The term of years absolute or the lease is one of the major forms
of.land ownership in England and Wales. Thus, it is a concept of considerable versatility
that can provide both occupation in a domestic context and premises for a commercial
enterprise as well as an income for.both the freeholder and even the leaseholder if the
premises are sublet. It is submitted therefore that it is a peculiar feature of a leasehold
estate that it can give different estate owners the use or enjoyment of the land or its
profits at the same time. Thus it is crucial in this regard to distinguish between a lease and
a licence.and consider the law in this regard.
- Identify the distinction between a lease/licence and the significance of street principles
Lease licence distinguished by differentiating them in two parts:
A) A lease is regarded as a proprietary interest and the relevant requirement and
conditions and formalities have to be complied with.
B) A licence on the other hand is a contractual right and therefore all that can be claimed
in the event of a breach is a claim in damages for breach of contract (Thomas v Sorell;
Lloyd v Dugdale)
Further the distinction also demonstrate its effect on potential third party provided the
registration requirement have been complied with whilst the effect of a licence because
contractual it does not bind a third party.
- Rent (Ashburn and Stolt v Arnold) s. 205 LPA 25 where it is provided that a rent is not
essential to the existence of a lease but it is submitted that it is a rare principle or situation
where parties to a transaction have intended to be legally bound by the relationship of a
landlord and tenant but have not specified the payment of rent. Therefore, a rent will be
argued on this answer as if it was synonymous with the existence of a tenancy.
- Duration Lace v Chandler 1994 where a lease for the duration of the WWII was held
void as being of uncertain maximum duration. This condition was subject to criticism and
an important development occurred in the case of Barrisford v Maxfiled Housing
Association where the SC confirmed that leases had to be of a certain duration and the SC
went on to point out that potentially uncertain leases given to individuals but not
companies could be rendered certain by the operation of law. A lease to an individual for
an uncertain period could be interpreted at common law as a lease for their life and then,
secondly, that lease for life are by statute s. 159(6) LPA 1925 are converted to lease of 90
years interminable by death Prudential Assurance v London Residuary Body ; Cottage
Holiday Associate Ltd v Customs and Exiles Commissoner ( agreements under a time
sham scheme giving the right to occupy the cottages one week each year for 80 years was
held to be certain)
- Formalities a.52 LPA 1925 leases for a period of more than 3 years by deed. S.54
short term periodic tenancies lease of less than 3 years. S.2 LP(MP)A the contract in
writing Walsh v Lonsdale
- Exclusive possession in establishing EP which is regarded as a notoriously illusive
concept and most of the time difficult to identify in practice but in essence the existence
of EP is a matter for the construction of the agreement between the parties in the light of
their conduct in relation to the property.
- Antoniandes v Villiers ; AG's Securities v Vaughn
- Exceptions in Lord Templeman's the cases identified by Lord gentleman in Street as
coming within exceptions to the GR are because of some special circumstances where his
lordship held that whilst EP may exist but a tenancy does not. For eg in the service
occupancy of the case of Norris v Checksfield in which the right to occupy was given to
an employee for the better performance of his duties.
- Also in Gray v Taylor concerns occupation given as an act of generosity, friendship or
charity did not indicate the existence of a lease - Bostock v Bryant ; Javad v Aqil
- Deal with the HL decision in Brutton Hoffman J judgment where the HL suggested
that a lease could exist I n favour of an occupier even though the landlord DoD not
actually have an estate in the land himself out of which to grant a lease (the landlord only
had a licence) this controversial view requires acceptance of the idea that not all leases
are really estates in the land after all but may be personal to the original parties a so
called non proprietary lease.
- It is submitted that this view has not been universally welcomed and remains suspect
even if accepted that the tenancy is perfectly valid as between the parties to it, it can still
be defeated in an action brought by the true owner of the land. London Borough of
 Islington v Green 2005; Kay v London Borough of Lambeth 2004; London Development
Agency v Nidai and others.

2008 zone B Q8
In advising J and A first determine whether it is a lease or licence. Define a lease and licence.
Discuss Street in detail particularly the element of EP.
Whilst the courts have been ready to strike down sham clauses they have been reluctant to
interpret individual licence agreement as creating a JT which carries with it joint liability for
rent. Mikeover; Stribling
Can Celia give them notice?
Licensees yes Ashburn
Tenants Celia would be bound by their 9 month term because J and A can argue overriding
interest para 1 sch 3