Table of Contents

Introduction.................................................................................................................................. 2
The essential characteristics of a Lease......................................................................................2
Right of Exclusive possession of land..........................................................................................2
A Term Certain............................................................................................................................ 3
Rent............................................................................................................................................. 4
The significance doctrine of the Case Law..................................................................................4
Conclusion................................................................................................................................... 5
Bibliographies.............................................................................................................................. 6

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Introduction
The United Kingdom land law was ancient and derived from common law. However, during last
hundred years there are many significant bills and act were passed through legislature, and
statute was created, hence there were significant changes the way of land law was dealt. The Law
of Property Act 1925 is one of the significant change which was intended to bring together a
whole collection of property related laws and simplified their application. Similarly, Certain case
laws influenced the law of property vastly and still considered as a critical decision making
factors. One of those most influenced case law is Street v Mountford (1985) which created a
base rule in the leases of a tenancy is the existence of a grant of exclusive possession for a
certain period of time, possibly but not necessarily, involving rent.
There was an uncertainty between a right to possess land and personal rights to occupy the
property. And there were many cases that has been attempted prior Street V mountford (1985) to
differentiate these concepts. Lord Templeman created a rule of “exclusive possession of land”
lord Denning1 explained the deference of as the nature of quality of occupancy in other word
“legal rights of exclusive possession of the property for a term would create a lease. A mere
permission to use a property will be taken as a licence. Lord Templeman introduced the test of
“exclusive possession”. Meaning, if the tenant does not possess the exclusive possession it
cannot called as a lease.

The essential characteristics of a Lease.

According to Lord Templeman in Street V. Mountford (1985) in the famous judgment he
identifies very critical characteristic that should inclusive of agreement that should considered as
a lease. These characteristics are considered as a Indicia of lease hold estate. Even though
whatever purpose which the state or agreement created or called upon.
1. Rights of Exclusive possession of land
2. A term certain
3. At a rent

Rights of Exclusive possession of land

The basic concept of a lease is an exclusive possession of the premises. what does it mean is that,
the tenant should be able to enjoy the property on his own without any hindrance including from
landlord. However, this is decided based on the contrast and circumstances both parties should
agree to certain terms and conditions which is called as covenants.

The lease is the ownership of land for certain period of a time. This could be possible in many
ways of being or enjoying the benefit of a property of someone else for specific period of time.
For an example another way of temporary ownership is license. The deference between licence
1
Marchant v Charters [1977] 3 All ER 918

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and lease is basically an important legal concept which pertaining individual rights and duties in
contract. A lease is mostly a contract between a landlord and a tenant. Landlord gives the rights
and permission to use or conduct any act which is legal, in return for consideration which should
have a value on it. The main difference is the lease gives a right to control the property whereas
licence is only gives the right to act on it. Lloyd V Dugdale (2001). However, lease is properly
regarded as a proprietary interest in the land or property itself and it could be assigned to,
become bind on the subsequent owner of the reversion. And most importantly leases are under
the protection of rent Act 1977 and the housing Act 1988. These acts mainly created to safe
guard the tenants as in England and wales majority of public are living on a rented property.
These statute acts restrict the landlords to remove tenants and set rent unfairly. And these acts
enable the tenant sue the land lord in case of if the landlord not meet the contractual obligation.
Such as tress pass, even including the land lord. Bruton v London and Quadrant Housing Trust
[1999].
On the other hand, license is having very narrow rights to the tenants. However, the recent cases
such as Airport V Dutton (1999) certain licences may give licensee a right to sue a tress pass.
However, in certain cases occupier will have exclusive possession even though it’s not a lease.
These could be mortgage or the parties having bona fede relationship or when the occupation
based on charity or friendship. Where there is no intent to create a legal relationship.
According to lord Templeman in the case of the property contract assessed based on its
substance even though whatever the name it’s called a whatever name labelled. the Lord
Templeman’s point of view is that there could be two categories of occupants such as tenants and
lodgers. Lodgers are basically occupying for short term who receives the service of land lord
such as room maintenance and meals etc. whereas a lease hold have exclusive right of
proprietorship for the period assigned. he also has privilege of sublease.
The exclusive possession in the case of AG Securities V Vaughan (1988) give another
prospective where House of lord held that there no lease but it’s a license. a single flat cannot be
occupied four even though there is a tenancy (lease) agreement with all four. Similarly,
Antoniades V Vaughan(1990)2 case concerning a flat that has been rented to two individual to
share the premises house of lord held that it’s not lease since it’s not given an exclusive
possession.

A Term Certain
Another important character of lease is a period of time which is called as a term which has to be
specifically mentioned on the contract and agreed upon both landlord and tenants. It could be a
month, a year or 99 years and it can any period but it has to be certain. It should be indicating the
commencement of the lease and end date of the lease. This particular period cannot be uncertain
as the case of Lace V Chandler (1944) which was tied to the 2nd world war which is very
uncertain event. As an exception Only on individual contract, a terminology prevail under the
common law is called “lease for life”. What does mean is that contract is valid someone’s life
2
AG Securities v Vaughan; Antoniades v Villiers [1990]

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time it will be end by his death Berrisford v Mexfield Housing Co-operative Ltd [2011].
However later on it has been changed by statue section 149 (6) of Law of Property Act (LPA)
1925. Converted to (90) ninety years of lease or terminated by death whichever occurs early, the
term will come to an end.
Another kind of Periodic Tenancy also exists, which could be weekly, monthly on a stipulated
time frame, based on the payment by end of the period. the tenancy will get renewed. Even
though there is specific end period for the whole agreement this periodically these agreements
will get end renewed automatically subject to the payment is paid on time or all the clauses and
terms are met by both parties. Even though it appears that total duration is uncertain there is a
succession of periodic tenancy, all of which certain in terms such as weekly or monthly. Hence
each new period is taken as a new lease.

Rent
Lord Templeman in Street V mountford has include rent as a part of a definition in tenancy. One
of the main intention of tenancy obviously make benefit in monetary terms. It could be a large
sum of money to entering the lease and a periodic payment monthly or annually based mutual
agreement. However, the Law of Property Act 1925 indicate on section 205 (1) that term of years
means, with or without rent. Hence certain types of lease could be without rent. Hence there
could be a leases without a covenant that both party not agreeing for rent. Ashburn Anstalt
VArnold (1989) whereas on this case suggest that if the tenant not paid the rent to landlord may
alternative remedies.
A rent may not necessarily a monitory term and could be a consideration whereas, it should have
a value, that could be a goods or a service and it should be certain. Bostock V Bryant (1990).
Also the fluctuating utility bills such as water or electricity cannot be considered as a rent.

The significance doctrine of the Case Law

A fundamental issue was court to distinguish between possession and occupation. Both of these
term even though looks similar it’s not exactly same. The inconsistent use at the judgment of
Lord Templeman is rather confusing the concept of exclusive occupation and exclusive
possession Lord Templeman also failed to differentiate between and weather those concepts
were statements of fact or legal entitlement. However, according to the judgment the term
occupation meant as just occupiers merely enjoys property. Possession has deep meaning of
enjoy property while others has no rights on it.
Hence The lord Templeman signifies as follows

 The simple occupation Is not sufficient the tenant should have the right of ‘exclusive
possession for a Lease. It cannot be named as when there is No exclusive possession.

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  Even though a tenant has exclusive possession of the property, land lord and the tenant
should have the “intention to create a legal relationship” or contract.
 Different between lodgers and tenants, lodgers are who received service from land lord
and it’s a licence not a lease.
 When a tenant a lodger has been offered “exclusive possession for a specific period of
time at a payment it should presumed as Lease.
 Even though the occupier has an exclusive possession and the rights to exclude others
benefiting from the property. The right established may be considered as fee simple

Conclusion
If we critically analyse the property law in terms of lease and licenses on residential properties.
There are many cases being an exemplary that court has stressed strongly that the circumstances
and the actual reality and surrounding which influences the court ruling rather than covenants.
And clearly disregards the artificial labels that has been named by the land lord most of the time.
It could be a licence, mortgage or leases. As case of Street V Mountford (1985) the House lord
Templeman was specifically said that on the principle that it is necessary to call “The
manufacture of a five pronged implement for manual digging results in a fork even if the
manufacturer, unfamiliar with the English language, insists that he intended to make and has
made a spade. spade as spade”.
In case of residential properties, the exclusive possession of dwellings listed as critical point in
the case of Street V mountford (1985) taken together with the rent act 1977 and subsequently on
the housing act 1988. Thus, merely a written agreement consists of detail listed above such as
exclusive possession, a term of duration and a rent does not necessarily mean a lease. A final
consideration to make is that a party cannot turn a lease to license similarly vice a versa. The
court will decide the terms of agreement the nature of control are main determining factors.

(1831 Words)

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Bibliographies
Texts
1. Martin D, modern land law, (Routledge, 9th Edition, 2013)
Cases
1. Street v Mountford [1985] 2 WLR 877
2. Marchant v Charters [1977] 3 All ER 918
3. Lloyd v Dugdale [2001] EWCA Civ 1754
4. Bruton v London and Quadrant Housing Trust [1999] UKHL 26
5. Bruton v London and Quadrant Housing Trust [1999] UKHL 26
6. AG Securities v Vaughan [1990] 1 A.C. 417
7. AG Securities v Vaughan; Antoniades v Villiers [1990] 1 AC 417
8. Lace v Chantler [1944] KB 368
9. Berrisford v Mexfield Housing Co-operative Ltd [2011] UKSC 52
10. Ashburn Anstalt v Arnold [1989] Ch. 1
11. Bostock V Bryant (1990)
Web Links
1. All Answers ltd, 'Decision of the House of Lords in Street V Mountford' (UKEssays.com,
November 2019) <https://www.ukessays.com/essays/uncategorised/the-decision-of-the-
house-of-lords-in-street.php?vref=1> accessed 30 November 2019
2. https://www.dacbeachcroft.com/en/gb/articles/2017/december/the-strengths-of-english-
property-law/ accessed 30 November 2019

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