Lease Question
Jan and Karl
What rights do J and K have if they enter into this agreement? Lease or merely a
licence? In Street v Mountford, Lord Templeman set out the requirements of a
valid LEASE ; 1) exclusive possession, 2) fixed term and 3) rent (either a one off
payment or paid periodically)
J and K were given one document to sign and as such, this would be a joint lease
that both of them would have. Whenever an occupier is granted Exclusive
Possession of residential accommodation for a fixed or periodic term at a stated
rent, there is a presumption of a tenancy, however Special circumstances might
rebut that presumption of a lease.
Provision of services, O’s close friend will make sure there is a constant delivery of
groceries and fresh towels every Sunday morning. Provision of services is likely to
be indicative of a lodger relationship and will generally prevent a finding of
exclusive occupation as per Marchant, Crancour v Da Silvaesa. Contrast to Aslan
v Murphy, The provisions relating to exclusive ownership, agreement of services
allowing others to use the room, retention of keys and service provisions were all
a pretence designed to get around the Rent Act. The retainment of key by Mr
Aslan will not automatically negate exclusive possession. Here, the agreement
which reserved O the right to retain keys and the service by O’s close friend will
not automatically negate exclusive possession. Jan told Oliver after the first week
of living in the house that they preferred the groceries and towels to be put
outside on the back step on Sunday. As a result, J and K are said to have had
exclusive ownership of the land in reality. Similarly in Antoniades v Villiers, The
clause is a sham and the couple were held to be tenants in joint possession. The
occupants had exclusive possession of the property in practice. Whereas in AG
Securities v Vaughan, HOL Held The occupants only had licences as Each occupant
had exclusive possession over their own bedroom at most, but not the communal
bathroom, kitchen, living-room, etc.
, Family; Oliver allowed his stepdaughter, Jan, which is technically his family. David
v Lewisham,Because there was evidence of lack of intent, the putative lease to
the daughter and son-in-law was deemed to be a mere licence.
Friendship; O’s stepdaughter’s friend, Karl. In Marcroft, The landlord had
permitted the former tenant's daughter to remain in the apartment after her
mother died as a gesture of kindness, as a result, the agreement was a licence
rather than a lease.
Facchini v Bryson, obiter, In every case where an occupier was found to be a
licensee, there was something in the circumstances to negate any purpose to
create a tenancy, such as a family arrangement, an act of kindness or generosity,
or something similar. In such circumstances, it would be clearly unjust to impose a
tenancy on the owner, with all the significant ramifications that this entails
presently, when there was no purpose to do so in the first place.
However Since J and K pays quite a bit of money, it may be argued that this is not
an act of generosity. if so, J and K has a lease
Service occupancy ; Where the occupation arises through employment, this is
likely to create a licence as opposed to a tenancy. Jan and Karl have been working
for Oliver, as his housekeeper and gardener respectively. To determine if an
occupation is one of service, the test to apply is whether the servant is required to
occupy premises in order to better perform his duties as a servant
If the terms of the employment do not require the servant to reside in the
premises, a lease may be granted. Applying Facchini, if J and K did not occupy the
house for the better performance of their duties , then it is not a service
Jan and Karl
What rights do J and K have if they enter into this agreement? Lease or merely a
licence? In Street v Mountford, Lord Templeman set out the requirements of a
valid LEASE ; 1) exclusive possession, 2) fixed term and 3) rent (either a one off
payment or paid periodically)
J and K were given one document to sign and as such, this would be a joint lease
that both of them would have. Whenever an occupier is granted Exclusive
Possession of residential accommodation for a fixed or periodic term at a stated
rent, there is a presumption of a tenancy, however Special circumstances might
rebut that presumption of a lease.
Provision of services, O’s close friend will make sure there is a constant delivery of
groceries and fresh towels every Sunday morning. Provision of services is likely to
be indicative of a lodger relationship and will generally prevent a finding of
exclusive occupation as per Marchant, Crancour v Da Silvaesa. Contrast to Aslan
v Murphy, The provisions relating to exclusive ownership, agreement of services
allowing others to use the room, retention of keys and service provisions were all
a pretence designed to get around the Rent Act. The retainment of key by Mr
Aslan will not automatically negate exclusive possession. Here, the agreement
which reserved O the right to retain keys and the service by O’s close friend will
not automatically negate exclusive possession. Jan told Oliver after the first week
of living in the house that they preferred the groceries and towels to be put
outside on the back step on Sunday. As a result, J and K are said to have had
exclusive ownership of the land in reality. Similarly in Antoniades v Villiers, The
clause is a sham and the couple were held to be tenants in joint possession. The
occupants had exclusive possession of the property in practice. Whereas in AG
Securities v Vaughan, HOL Held The occupants only had licences as Each occupant
had exclusive possession over their own bedroom at most, but not the communal
bathroom, kitchen, living-room, etc.
, Family; Oliver allowed his stepdaughter, Jan, which is technically his family. David
v Lewisham,Because there was evidence of lack of intent, the putative lease to
the daughter and son-in-law was deemed to be a mere licence.
Friendship; O’s stepdaughter’s friend, Karl. In Marcroft, The landlord had
permitted the former tenant's daughter to remain in the apartment after her
mother died as a gesture of kindness, as a result, the agreement was a licence
rather than a lease.
Facchini v Bryson, obiter, In every case where an occupier was found to be a
licensee, there was something in the circumstances to negate any purpose to
create a tenancy, such as a family arrangement, an act of kindness or generosity,
or something similar. In such circumstances, it would be clearly unjust to impose a
tenancy on the owner, with all the significant ramifications that this entails
presently, when there was no purpose to do so in the first place.
However Since J and K pays quite a bit of money, it may be argued that this is not
an act of generosity. if so, J and K has a lease
Service occupancy ; Where the occupation arises through employment, this is
likely to create a licence as opposed to a tenancy. Jan and Karl have been working
for Oliver, as his housekeeper and gardener respectively. To determine if an
occupation is one of service, the test to apply is whether the servant is required to
occupy premises in order to better perform his duties as a servant
If the terms of the employment do not require the servant to reside in the
premises, a lease may be granted. Applying Facchini, if J and K did not occupy the
house for the better performance of their duties , then it is not a service
