Leases Lecture Notes 2018 192 PDF

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Leases lecture notes 2018-19(2)
Land Law (University of Bristol)
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Antonia Layard
2018/19
UNIVERSITY OF BRISTOL
SCHOOL OF LAW
LAND LAW D20002
Leases
1. WHAT IS A LEASE?
A lease is said in s1(1)b LPA 1925 to be a legal estate, “a term of years absolute”. A “term of
years absolute” is defined in s205 (xxvii) LPA 1925 as:
“a term of years (taking effect either in possession or in reversion whether or not at a rent) with
or without impeachment for waste, subject or not to another legal estate, and either certain or
liable to determination by notice, re-entry, operation of law, or by a provision for cesser on
redemption, or in any other event …”
This statutory definition has been criticised. Gray and Gray, for example, describe it as being
“circular in nature and provides little assistance in isolating the main structural elements of a
lease or tenancy” (Gray & Gray, Elements, p. 315).
The words lease and tenancy are interchangeable.
Leases developed in Europe during feudal times, often in relation to agricultural land. Adam
Smith, the proponent of the “invisible hand” and free market capitalism highlighted their
shortcomings in the Wealth of Nations (1776):
“As soon as the land of any country has all become private property, the landlords, like all other
men, love to reap where they never sowed, and demand a rent even for its natural produce.
The rent of the land, therefore, considered as the price paid for the use of the land, is naturally a
monopoly price. It is not at all proportioned to what the landlord may have laid out upon the
improvement of the land, or to what he can afford to take; but to what the farmer can afford to
give” (Wealth of Nations, 1776, Book 1, Chapter 11).
Historically, the lease was regarded as a chattel, which gave rise to an action in personam only.
However, from about the thirteenth century onwards, the lease came to be regarded as an
element of a person’s property – falling within the doctrine of tenure. Today the relationship of
landlord and tenant is the living embodiment of feudal tenure, which requires that “all land
which is held for any estate shall be held of a lord”. Thus, although in its earliest incarnation, the
lease was regarded as creating simply a contractual relationship, it is today regarded as having a

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mix of contract and property law; that mix is sometimes rather awkward as Mark Wonnacott’s
illustrates in his book The History of the Law of Landlord and Tenant in England and Wales
(2012), pp 1-2:
“A leasehold tenancy is a curious mix. One part a personal promise, enforceable

against the parties, and the other part an estate in land, enforceable against the world;
the tension is inherent in the medieval term for it, a ‘chattel real’.”
Today – since the 1925 LPA – leaseholds are estates (real property). Most students know what a
lease is in their every day life, as they rent a room or a flat from a landlord, perhaps a private
individual or a company (e.g. Unite). The landlord is the freeholder, the person renting (the
student, in this example) is the lessee (or tenant, the words are interchangeable).
While a freehold has no time limit (“a grant of years absolute”, s1(1)(b) LPA 1925), a lease is
limited by time. Sometimes the lease is explicitly time limited, e.g. assured shorthold tenancies
(which students often have) conventionally last for 12 months. A lease has no upper time limit
(leases for 999 years are not uncommon) or leases can be periodic, ie the rent is paid at regular
periods, for example weekly or monthly. The words periodic leases and periodic tenancies are
again interchangeable, though people generally say “periodic tenancy”.
If there is an arrangement between someone who is a bit like a landlord and a bit like a tenant
but the criteria for a lease are not met (rent, term, exclusive possession as well as the intention to
create those legal relations) there will not be a lease. Then the person will still be living there as
a lodger but they will only have a licence. They are not a tenant and they do not have a leasehold
estate. They are a licensee (ie. they have a licence).
The person who grants the lease is referred to as the lessor or the landlord. The landlord carves
the leasehold estate out of his freehold interest, which he retains. The landlord’s interest is called
“the reversion”, he holds the “reversionary estate” from which the lease has been carved out.
This reversionary interest can be “assigned” to somebody else.
Exclusive possession?
The landlord, as the person in receipt of rents and profits, is legally regarded as being in
possession, since “possession” is defined in s205xix LPA as including “receipt of rents and
profits or the right to receive the same, if any; and “income” includes rents and profits”.
However, physically the landlord does not have the right to possess the property, the tenant has
the right to “exclusive possession”.
Exclusive possession is when the tenant is able to exclude all from the property (including the
landlord, except for reasonable repairs etc, see later). If the tenant is not unable (given the legal
circumstances) to exclude the landlord in this way, they will not have exclusive possession (and
so will not have a lease).

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Exclusive possession is different from exclusive occupation. Exclusive occupation means that
the person living there is able enjoy the property and exclude third parties but not the landlord.
This pretty clear distinction – between exclusive possession (can exclude LL) and exclusive
occupation (cannot exclude the LL) was sadly muddled by Lord Templeman in Antoniades and
Vaughan where he used the term “exclusive occupation” throughout the judgment rather than the
term “exclusive possession” as he had done in Street.
The most recent law on distinction between exclusive possession and exclusive occupation is the
Court of Appeal decision in Watt v Stewart, where Sir Terence Etherton said:
“there is a distinction between legal exclusive possession or a legal right of exclusive

possession, on the one hand, and a personal right of exclusive occupation, on the
other hand … Legal exclusive possession entitles the occupier to exclude all others,
including the legal owner, from the property. Exclusive occupation may, or may not,
amount to legal possession. If it does, the occupier is a tenant. If it does not, the
occupier is not a tenant and occupies in some different capacity.” (para 31)
Types of Leases
There are a few different types of lease, including (but not limited to):
Fixed term leases are leases for a fixed term. So, if your tenancy is for six or 12 months, that is
the fixed term. According to the common law, it ends at the end of the fixed term. However,
statute intervenes in the types of tenancies you have so that it can in fact run on.
Periodic tenancies are tenancies for a period which roll on at the end of the first term. So, for
example, a weekly tenancy has a period of one week, but rolls on to further periods of one week,
until either party determines it. Where a person goes into occupation of property and pays a
weekly fee for it, the law usually implies the creation of a weekly tenancy that it takes from the
rental period unless there is contrary evidence. A periodic tenancy ends on the giving of notice.
The common law has particular rules for notice, but these aren’t that relevant any more because
statute requires that at least 28 days notice is given and for your types of tenancies, the landlord
must usually have to give you at least two months under the housing act 1988.
Tenancies at will arise where a person occupies land for an indefinite period but where either
party can end the tenancy on demand. It operates in a rather shadowy ground conferring limited
rights on the tenant at will. In times gone by, a tenancy at will was a fairly common presumption
from the entry onto land and the payment of rent. However, the courts, during the second half of
the twentieth century began to restrict the doctrine of tenancies at will because, through this
device, landlords were seeking to circumvent the statutory protections available to tenants. The
only time we encounter a claim for a tenancy for life is in Watts v Stewart, where it was rejected
by the CofA.

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A lease for a life was a common term at one time but is inherently uncertain. Section 149(6)
turns a lease for life into a lease for 90 years determinable on the death of the relevant person (as
we will see when we come to Mexfield v Berrisford).
Sub-Leases
A lease can be “carved out” of a freehold, as the freehold is longer than a lease (there is no time
limit on a freehold estate).
A sub-lease can be “carved out” of a lease as long and the sub-lease is shorter than the lease.
For example:
Freeehold ------------------------------------------------------------------------------------
Leasehold (for 99 years) ---------------------------------------------------------
Sub-lease (for 98 years and 364 days) -----------------------------------------
Sub-lease (for 98 years and 363 days) -----------------------------------------
(and so on)
If formalities are complied with, the freehold, lease and any further sub-leases would all be
estates for the purposes of s1(1)(b) LPA 1925.
Why would you want to create a sub-lease?
So that you can earn rent even when you are not in occupation.
For Example:
A student has a room in a rented house. The lease (tenancy) is from 1.10.18 until 30.9.19. The
house is owned by the landlord.
The landlord is the freeholder, the student is the leaseholder (also known as the lessee or tenant).
At the end of the lease (30.9.19) the property reverts to the freeholder (the landlord). He
maintains an interest in reversion throughout.
If the student decides to go to Camp America from 30th June – 31st Aug 2019, if his contract does
not prohibit him, he can sub-let his room while he is away.
The person who sublets it is a sub-lessee.

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Land law, which is primarily concerned with estates and interests, permits sub-leases. As leases
are both contracts and property, however, the terms of a lease may prohibit sub-letting.
Sometimes, other documents also supplement the lease itself (and would be incorporated into the
contract, see s. 2 LP(MP)A 1989 for the rule about incorporation and formalities). For example,
the UoB Student Residence Contract says that
“You are not to sublet the Accommodation nor allow anyone else to use it for
residential purposes.”
So if you are renting from UoB you may not sub-let your room, even if you are away for a
period of time. In land law, a tenant may carve out a sub-lease of their tenancy – that is a basic
land law rule - but this carving out or sub-letting may be prohibited by contract, as here by the
“student residence contract”. Leases are both estates in land and contracts (see below section 11,
for what happens when the two sets of rules come into conflict).
How does a lease start?
A document is drawn up, which complies with formalities, and makes provision for rent, term
and exclusive possession.
How does a lease end?
- Effluxion of time
- Notice to Quit
- Surrender
- Forfeiture
- Merger
In this course, you only need to know about effluxion of time (for fixed term tenancies) and
notice to quit (for periodic tenancies).
Leases and Licences
If the requirements are not met, a person may still be living in a place or a company may work
from premises but there is no lease (because the requirements of rent, term and exclusive
possession have not been met). The arrangements are then known as a licence ie. they grant
personal permission but do not grant an estate in land (under s1 LPA 1925).
Why does it matter if you have a lease rather than a licence?
The difference between having a lease and a licence has varied over time. It was particularly
important between the 1977 Rent Act and the 1985 Housing Act where a tenant had security of
tenure and rent protection (they became what is colloquially referred to as “secure tenants”).
Today, there are still important differences including:

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- Tenants who have an assured shorthold tenancy will have at least six months security of tenure,
must be given two months notice of eviction and the landlord must get an order for possession
executed (Housing Act 1988, ss 7, 21)
- Tenants have the right to get their landlords to repair the property (Landlord and Tenant Act,
1987, s11)
- Tenants must have their deposits protected (Housing Act 2004, ss212-214)
A long discussion of the differences between leases and licences in relation to property guardians
is contained in a White Paper on Property Guardians
http://www.adhocproperty.co.uk/wp-content/uploads/2017/11/The-Law-on-Property-Guardians-
White-Paper-November-2017-081117.pdf (and on BB).
The housing law details of the implications of whether you have a lease or a licence are not on
the exam (as conventionally, this is taught as housing law rather than land law). What is on the
exam is how you decide whether an arrangement is a tenancy or a licence. But the housing
consequences of this are – for our teaching purposes - part of housing law, not land law.
A lease is in some ways a power dynamic – what can the landlord and the tenant negotiate?
Student accommodation in particular has become very profitable for some developers (for
example, see https://www.theguardian.com/education/2018/may/27/revealed-developers-
cashing-in-privatisation-uk-student-housing).
There is a model tenancy issued by the Department of Communities and Local Government with
a three-year term but it is very rarely used
(https://www.gov.uk/government/publications/model-agreement-for-a-shorthold-assured-
tenancy).
Many of the details of tenancies are part of housing – rather than land – law and this might be
something you’d want to study for your FYRP in year 3.
2. FORMALITIES
Legal leases must be created by deed (s52 LPA 1925, the requirements for a deed are set out in
s1(2) LP(MP)A 1989.
There is an exception for parol leases:

LPA 1925, section 54(2):
“Nothing in the foregoing provisions of this Part of this Act shall affect the creation
by parol of leases taking effect in possession for a term not exceeding three years
(whether or not the lessee is given power to extend the term) at the best rent which
can be reasonably obtained without taking a fine.”

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Leases that do not exceed three years, are for best rent and take effect in possession (ie. the
tenant moves in straight away) are an exception to the general rule and so whether made orally
or in writing will create legal leasehold estates.
If the lease does not fall within the parol rule (s54(2) LPA) exception, it needs to be in writing in
order to be equitable (s 53 LPA 1925 and s2 LP(MP)A 1989).
If compliant with s2 LP(MP)A 1989, there is authority that a contract for a lease (written down)
is “as good as a lease” (Walsh v Lonsdale). So, as between the landlord and tenant there is a
valid lease because, in equity, a court would award specific performance of the contract for a
lease (and so it is “as good as a lease”).
There are consequences if formalities are not complied with and the tenant has an equitable
rather than a legal lease as an equitable lease would not be binding on a third party (for example,
if the landlord sells the property to somebody else) in registered land unless the equitable leases
has been protected by entering a notice (ss32 and 34 LPA 1925) or the tenant is in actual
occupation and the lease becomes an overriding interest (Sched 3, para 2 LPA 1925) (see lecture
notes 1-3). These points are also set out again in Section 11 of these notes, Registration.
3. RENT, TERM & EXCLUSIVE POSSESSION

Street v Mountford [1985] AC 809
In an agreement dated 7 March 1983 Roger Street granted Wendy Mountford the right to occupy
two rooms for £37 per week subject to termination by 14 days' notice and subject to conditions
set out in the agreement. This was called a “licence agreement” and contained a declaration
signed by Mrs Mountford with a signed statement, that “I understand and accept that a licence in
the above form does not and is not intended to give me a tenancy protected under the Rent Acts”.
This supposedly had the effect that she understood that the agreement did not give her a tenancy
protected under the Rent Acts (ie. she had a licence rather than a lease). The landlord, Mr. Street,
tried to evict Mrs Mountford, saying it was a licence and so Mrs Mountford sought an order in
the county court that it was a tenancy (and so covered by the security of tenure provisions in the
1977 Rent Acts). It was unclear whether the owner or agent retained a key. The County Court
held that it was a tenancy, the Court of Appeal held that it was a licence. Then it went to the
House of Lords:
Lord Templeman
“A tenancy is a term of years absolute. This expression, by section 205(l)(xxvii) of the
Law of Property Act 1925, reproducing the common law, includes a term from week to
week in possession at a rent and liable to determination by notice or re-entry.
There can be no tenancy unless the occupier enjoys exclusive possession; but an
occupier who enjoys exclusive possession is not necessarily a tenant. He may be owner
in fee simple, a trespasser, a mortgagee in possession, an object of charity or a service
occupier. To constitute a tenancy the occupier must be granted exclusive possession for
a fixed or periodic term certain in consideration of a premium or periodical payments.

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The grant may be express, or may be inferred where the owner accepts weekly or other
periodical payments from the occupier.” (818, E-F)
It is clear from his judgment that when the criteria existed, Lord Templeman considered this to
be determinative:
“In the case of residential accommodation there is no difficulty in deciding whether the
grant confers exclusive possession. An occupier of residential accommodation at a rent
for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides
attendance or services which require the landlord or his servants to exercise unrestricted
access to and use of the premises. A lodger is entitled to live in the premises but cannot
call the place his own.” (817H-818A)
Why was Lord Templeman so emphatic?

Given the power-dynamics in leases, and the protections that tenancies conferred at that time
under the 1977 Rent Act), the courts have been keen to strike down terms of agreements which
are “pretences”, “shams” or “artificial” if they turn what would otherwise be a tenancy into a
licence.
Although academically, housing law and land law are often separated, they inevitably appear
together in real life and before the courts. Lord Templeman in Street v Mountford:
“Although the Rent Acts must not be allowed to alter or influence the construction of an
agreement, the court should, in my opinion, be astute to detect and frustrate sham
devices and artificial transactions whose only object is to disguise the grant of a tenancy
and to evade the Rent Acts”.
He was emphatic because if the elements of the lease were there (“a spade is a spade”) then
wording in a document should not, he held, be able to transform the arrangement into a licence
and avoid the protections of the 1977 Rent Act:
“If the agreement satisfied all the requirements of a tenancy, then the agreement
produced a tenancy and the parties cannot alter the effect of the agreement by insisting
that they only created a licence. 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.” (819F)
What is the role of intention (to create legal relations/a tenancy)?
Lord Templeman addresses the question of intention to create a tenancy, holding that the
tenancy must be granted and the “The grant may be express, or may be inferred where the owner
accepts weekly or other periodical payments from the occupier.” (818F). As with his spade
analogy, he was emphatic: “the professed intention of the parties … cannot alter the effect of the
agreement” (819H).
At 825C “in my opinion in order to ascertain the nature and quality of the occupancy
and to see whether the occupier has or has not a stake in the room or only permission for

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himself personally to occupy, the court must decide whether upon its true construction
the agreement confers on the occupier exclusive possession. If exclusive possession at a
rent for a term does not constitute a tenancy then the distinction between a contractual
tenancy and a contractual licence of land becomes wholly unidentifiable.” Ie. there must
be a good way to distinguish between a lease and a licence.
826E “in addition to the hallmark of exclusive occupation of residential accommodation
there were the hallmarks of weekly payments for a periodical term. Unless these three
hallmarks are decisive, it really becomes impossible to distinguish a contractual tenancy
from a contractual licence save by reference to the professed intention of the parties or
by the judge awarding marks for drafting.”
826F – 827E “My Lords, the only intention which is relevant is the intention
demonstrated by the agreement to grant exclusive possession for a term at a rent.
Sometimes it may be difficult to discover whether, on the true construction of an
agreement, exclusive possession is conferred. " Sometimes it may appear from the
surrounding circumstances that there was no intention to create legal relationships.
Sometimes it may appear from the surrounding circumstances that the right to exclusive
possession is referable to a legal relationship other than a tenancy. Legal relationships to
which the grant of exclusive possession might be referable and which would or might
negative the grant of an estate or interest in the land include occupancy under a contract
for the sale of the land, occupancy pursuant to a contract of employment or occupancy
referable to the holding of an office. But where as in the present case the only
circumstances are that residential accommodation is offered and accepted with
exclusive possession for a term at a rent, the result is a tenancy.”
Ie. it is not the intention to create either a lease or a licence that matters, rather it is the intention
to grant exclusive possession for a term at a rent. Are they present, or not? If the three hallmarks
are there, and they are intended to be there, and there is no contrary intention, there is a tenancy.
4. RENT
Ashburn Anstalt v Arnold [1989] Ch 1 (not overruled on this point by HL)
No rent was paid when the parties entered into arrangement to re-develop the shop. The lease
was to begin after the shop had been re-developed.
In the Court of Appeal, Fox L.J. (at 9E) held that:

“In Street v. Mountford [1985] A.C. 809 Lord Templeman, who gave the leading speech,
regarded three hallmarks as decisive in favour of a tenancy of residential accommodation,
namely exclusive possession, for a term, at a rent …
[Here] We treat the case as one where no rent was payable. Did that prevent … a tenancy? We do
not think so. We are unable to read Lord Templeman's speech in Street v. Mountford as laying
down a principle of ‘no rent, no lease’. It would be inconsistent with section 205(1) (xxvii) of
the LPA 1925 and caselaw.”

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So rent was not required in order for there to be a lease.
Skipton BS v Clayton (1993) 25 H.L.R. 596
The freehold (FH) was transferred in order to confer a licence for life. The CofA held this was a
lease even though there was no rent. Sir Christopher Slade held that:
“The decision of the House of Lords in Street v. Mountford … clearly establishes that,
whether the label which the parties choose to attach to their arrangement be a tenancy or
a licence, an arrangement under which exclusive possession of residential property is
granted for a term at a rent will normally be regarded by the law as the grant of a
tenancy. Furthermore, as Lord Templeman recognised (at p. 818E), the same legal result
will ensue if the occupier is granted exclusive possession for a fixed or periodic term
certain in consideration of a premium.”
So, although Lord Templeman seemed to suggest that rent was an essential attribute of a valid
lease, this is not necessarily so.
Note, however, that when it comes to formalities (deciding whether a lease is legal or equitable),
s 54(2) LPA 1925 makes it clear that “best rent” is required. (See lecture notes 1-2 for an
explanation of “best rent”)
For all other leases, the most that can be said is that the payment of rent is an indicator of an
agreement to enter into a legal relationship. The absence of a rental payment is an indicator that
there was no intention to enter into legal relations.
5. TERM
Uncertainty of Term
Leases should have a certain term. The history of this rule is set out by Lord Neuberger in
Mexfield Housing Co-op v Berrisford [2011] UKSC 52 in paras 23-33.
This can mean either that a lease would not automatically be valid if the term itself is uncertain
(as in Lace v Chantler) or that the terms of the lease may be incompatible with certainty of
duration (as in Mexfield v Berrisford or Southward Cooperative where there was a “fetter” on the
parties’ ability to end the agreement, so that the agreement couldn’t take effect as a weekly
periodic or any tenancy). A fetter is a restriction or constraint ie. one or both of the parties are
unable or wouldn’t know when they are able to determine (ie. end) the tenancy.
There is widespread judicial, academic and professional agreement that the certainty of term rule
is undesirable. However, it is still binding and courts have been ingenious at finding ways
around it.
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In particular, a distinction has developed between agreements with an apparently uncertain term
where the tenant is a corporation and agreements where the tenant is a person.
Corporation: If the term is uncertain and the occupier is a corporation then if the tenant is in
possession and paying a periodic rent, a periodic tenancy may be implied (as in Prudential
Assurance).
Person: If the term is uncertain and the occupier an individual (ie. not a corporation), then it may
be a tenancy for 90 years subject to earlier termination in accordance with the contract (under
s149(6) LPA 1925, as in Mexfield v Berrisford).
The simple version of the rule that leases should have a certain term was set out in Lace v
Chantler.
Lace v Chantler [1944] K.B. 368
A tenancy “for the duration of the war”. Was this a sufficiently certain term? The House of Lords
held not.
“Normally there could be no question that this was an ordinary weekly tenancy, duly
determinable by a week's notice, but the parties in the rent-book agreed to a term
which appears there expressed by the words “furnished for duration”, which must
mean the duration of the war. The question immediately arises whether a tenancy for
the duration of the war creates a good leasehold interest. In my opinion, it does not. A
term created by a leasehold tenancy agreement must be expressed either with certainty
and specifically or by reference to something which can, at the time when the lease
takes effect, be looked to as a certain ascertainment of what the term is meant to be. In
the present case, when this tenancy agreement took effect, the term was completely
uncertain. It was impossible to say how long the tenancy would last.” (Lord Greene
MR, at 370)
Lord Greene said that the uncertainty would have been cured if the lease had been granted for a
life tenancy terminable at the end of the war (371) but that had not been done. That would have
been certain because, at the outset, you could see that the lease could not last for longer than the
person’s life. As the clause was drafted, the term was too uncertain, and it could not be a lease.
As these types of leases were quite common, section 1 of the Validation of Wartime Leases Act
1944, s. 1 was introduced, which rescued these types of leases by converting them into ten-year
leases determinable by either party giving one month’s notice to the other to determine the lease
upon the end of hostilities. This was a practical legislative solution to the common law problem
giving certainty to these leases which the parties (or their drafters) had failed to confer.
Prudential Assurance v London Residuary Body [1992] 2 AC 386
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In 1930 the owner of a strip of land fronting a highway sold the land to the council, which
contemporaneously leased it back to him upon terms set out in a memorandum of agreement
providing in clause 6 that “the tenancy shall continue until the . . . land is required by the council
for the purposes of the widening of” the highway. On that condition being satisfied, the
agreement could be determined on two month’s notice. Prudential paid rent of £30 per annum.
By the time the London Residuary Body took the property, they had no road-widening powers as
they were not a highway authority.
Lord Templeman, 299H - 390A:
“By the agreement, the tenant was authorised to erect "temporary one storey shops or
buildings of one storey and for the retention of such shops or buildings as temporary
structures" until the land was required for road widening and he was then bound to
remove the temporary structures and clear the land. The council agreed to pay all the
costs of road making and paving works. The agreement was clearly intended to be of
short duration and could have been secured by a lease for a fixed term, say five or ten
years with power for the landlord to determine before the expiry of that period for the
purposes of the road widening. Unfortunately the agreement was not so drafted. Over 60
years later Walworth Road has not been widened … the defendants have no road
making powers and it does not appear that the road will ever be widened.”
In the House of Lords, Lord Templeman made it clear that the restriction on termination
invalidated the fixed term lease: “When the agreement in the present case was made, it failed to
grant an estate in the land” (Lord Templeman, 392A), because of the uncertainty of term,
following Lace v Chantler.
However, Lord Templeman held that there was a periodic tenancy here because once the lease
was held void, there was unexplained possession on the land with the payment of rent, which
implied a periodic tenancy:
“The tenant however entered into possession and paid the yearly rent of £30 reserved by
the agreement. The tenant entering under a void lease became by virtue of possession
and the payment of a yearly rent, a yearly tenant holding on the terms of the agreement
so far as those terms were consistent with the yearly tenancy. A yearly tenancy is
determinable by the landlord or the tenant at the end of the first or any subsequent year
of the tenancy by six months' notice unless the agreement between the parties provides
otherwise.” (392 B-C)
So there was a yearly, periodic tenancy here, determinable by the landlord or the tenant by six
months notice after the first year unless the agreement said otherwise (which it did not). The
landlord had served such a notice (to end the tenancy).
“My Lords, I consider that the principle in Lace v. Chantler [1944] K.B. 368
reaffirming 500 years of judicial acceptance of the requirement that a term must be
certain applies to all leases and tenancy agreements. A tenancy from year to year is
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saved from being uncertain because each party has power by notice to determine at the
end of any year. The term continues until determined as if both parties made a new
agreement at the end of each year for a new term for the ensuing year. A power for
nobody to determine or for one party only to be able to determine is inconsistent with
the concept of a term from year to year … there was no "clearly expressed bargain" that
the term should continue until the crack of doom if the demised land was not required
for the landlord's undertaking or if the undertaking ceased to exist. In the present case
there was no ‘clearly expressed bargain’ that the tenant shall be entitled to enjoy his
‘temporary structures’ in perpetuity if Walworth Road is never widened. In any event
principle and precedent dictate that it is beyond the power of the landlord and the tenant
to create a term which is uncertain.
A lease can be made for five years subject to the tenant's right to determine if the war
ends before the expiry of five years. A lease can be made from year to year subject to a
fetter on the right of the landlord to determine the lease before the expiry of five years
unless the war ends. Both leases are valid because they create a determinable certain
term of five years. A lease might purport to be made for the duration of the war subject
to the tenant's right to determine before the end of the war. A lease might be made from
year to year subject to a fetter on the right of the landlord to determine the lease before
the war ends. Both leases would be invalid because each purported to create an
uncertain term. A term must either be certain or uncertain. It cannot be partly certain
because the tenant can determine it at any time and partly uncertain because the landlord
cannot determine it for an uncertain period. If the landlord does not grant and the tenant
does not take a certain term the grant does not create a lease.” (393H onwards)
Lord Templeman here emphasises that a “term of years absolute”, a lease, must be certain and
any ability to determine it must also be expressed in a way that is certain (see the quote above).
If a term is uncertain, there is no fixed lease (tenancy). A periodic tenancy, however, can be
certain because each party has power by notice to determine at the end of the period (in this case,
at the end of any year). Although there was no fixed tenancy here, a periodic tenancy was
implied. As the landlord had served a notice to quit the periodic tenancy, it could be brought to
an end.
Lord Browne-Wilkinson added his views (with which Lords Griffiths and Mustill agreed):
“As a result of our decision Mr. Nathan's successor in title will be left with the freehold
of the remainder of No. 263-265 which, though retail premises, will have no frontage to
a shopping street: the L.C.C.'s successors in title will have the freehold to a strip of land
with a road frontage but probably incapable of being used save in conjunction with the
land from which it was severed in 1930, i.e. the remainder of No. 263-265.
It is difficult to think of a more unsatisfactory outcome or one further away from what
the parties to the 1930 agreement can ever have contemplated. Certainly it was not a
result their contract, if given effect G to, could ever have produced. If the 1930
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agreement had taken effect fully, there could never have come a time when the freehold
to the remainder of No. 263-265 would be left without a road frontage.
This bizarre outcome results from the application of an ancient and technical rule of law
which requires the maximum duration of a term of years to be ascertainable from the
outset. No one has produced any satisfactory rationale for the genesis of this rule. No
one has been able to point to any useful purpose that it serves at the present day. If, by
overruling the existing authorities, this House were able to change the law for the future
only I would have urged your Lordships to do so.
But for this House to depart from a rule relating to land law which has been
established for many centuries might upset long established titles. I must therefore
confine myself to expressing the hope that the Law Commission might look at the
subject to see whether there is in fact any good reason now for maintaining a rule which
operates to defeat contractually agreed arrangements between the parties (of which all
successors in title are aware) and which is capable of producing such an extraordinary
result as that in the present case.” (396H – 397A)
The picture of 263-265 Walworth Road in the lecture illustrate this (practical) point.
Mexfield Housing Co-op v Berrisford [2011] UKSC 52
Mexfield Housing Co-operative’s standard form occupancy agreement purported to grant a

tenancy from month to month which was terminable by Ms Berrisford giving one month’s notice
to quit (clause 5), and was terminable by Mexfield only in the following circumstances (clause
6) including failure to pay rent, failure to perform any conditions or provisions of the
Agreement, if the Member ceases to be a member of the Association or if a resolution is passed
under the Association’s Rules regarding a proposal to dissolve the Association.
In 2008, Mexfield served a notice to quit on Mrs. Berrisford owing to rent arrears (which were
subsequently paid) and began possession proceedings. In the Supreme Court, Mexfield relied on
the decision in Prudential Assurance Co Ltd v London Residuary Body (1992) as authority for
the proposition that a term of uncertain duration cannot create a lease and that consequently, the
entire occupancy agreement was void (including clause 6). In the absence of the agreement, Mrs
Berrisford enjoyed exclusive occupation of the property from month to month. By implication,
this amounted to a monthly periodic tenancy in accordance with Street v Mountford and
Prudential. Such a tenancy, the argument went, would be terminable by notice to quit at the end
of the period (ie. at the end of the month).
The Supreme Court held that the periodic tenancy contained invalid terms (clauses 5 and 6, in
relation to ending the tenancy) but that as the common law, pre-1925 would have converted this
tenancy into a tenancy for life, so too now did s149(6) LPA 1925.
Section 149(6) LPA:
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“Any lease or underlease, at a rent, or in consideration of a fine, for life or lives or for
any term of years determinable with life or lives . . . made before or after the
commencement of this Act . . . shall take effect as a lease, underlease or contract
therefor, for a term of 90 years determinable . . . by at least one month’s notice in
writing given to determine the same . . .”
How does the conversion from a periodic tenancy into a 90 year tenancy for life happen? Lord
Neuberger says (in para 36) that this is the effect of s149(6) LPA 1925:
“…this provision effectively converts a life tenancy into a determinable term of 90

years. A tenancy for life is a term of uncertain duration, and it was a species of freehold
estate prior to 1926, but, in the light of section 1 of the 1925 Act, if it was to retain its
status as a legal estate, it could only be a term of years after that date. Presumably it was
converted into a 90-year term because those responsible for drafting the 1925 Act
thought it could not be a term of years otherwise.”
The judgment then is that s149(6) LPA 1925 converts an uncertain periodic tenancy into a
tenancy for life (of 90 years) for individuals. This seems to challenge both the ratio in Lace v
Chantler as well as ignore the solution offered by Prudential Assurance (an implied periodic
tenancy). The decision gave Mrs. Berrisford great security. Had there been no lease (as in Lace v
Chantler, she could have been evicted following the service by Mexfield of a notice to quit) and
had there been a periodic tenancy (as in Prudential Assurance, as Mexfield’s lawyers argued)
she could have been evicted following the service by Mexfield of a notice to quit at the end of
the period (in this case she paid rent monthly).
How do Lace v Chantler, Prudential Assurance & Mexfield v Berrisford sit together?
Lord Neuberger says (in para 52) that they are compatible because s149(6) LPA 1925 was not
argued before the court in either Lace v Chantler or Prudential Assurance:
“The fact is that it was not argued in either of those two cases that the arrangement
involved would have created a life tenancy as a matter of common law, and that,
following section 149(6), such an arrangement A would now give rise to a 90-year term,
determinable on the tenant’s death (and Mr Wonnacott was kind enough to point out
that such an argument would not have assisted, and may even have harmed, the
unsuccessful respondent’s case in the Prudential case). Some of the statements about the
law by Lord Greene MR and Lord Templeman can now be seen to be extravagant or
inaccurately wide, but it is only fair to them to repeat that this was, at least in part,
because the tenancy for life argument was not raised before them.”
Section 149(6) was not argued before the court in Lace v Chantler (concerning an individual)
and could not be for Prudential Assurance concerning a company (see Lady Hale’s point on this
at paras 92-93, noting that as it was a company and the company owner had already died by the
time the litigation took place, this would not have helped the Prudential in their argument).
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Because s149(6) LPA 1925 was not argued, there is no inconsistency according to Lord
Neuberger. You should know that not everyone agrees with this suggestion.
One question here is whether the rule in s149(6) applies to all uncertain periodic tenancies or
whether it depends on the factual matrix of the case. While Lord Neuberger sets it out as a
general rule, Lady Hale (who agrees with Lord Neuberger) ties it to the intention of the parties
saying that in this case the 90 year tenancy did accord with the intentions of the parties.
(Mexfield was a Housing Cooperative aimed at providing secure housing for people who could
not pay their mortgages (see Mexfield para 1). It was, in other words, a very unusual kind of
landlord.
However, in para 94, Lady Hale also seems to see it as a general rule noting that it could apply to
parties who did not have this intention, though she notes that it is always open to them to
contract out of it, fixing a maximum term instead, determinable by a prior event (whenever that
might happen):
“As it happens, in the particular agreement with which we are concerned, it is not
difficult to conclude that the parties did in fact intend a lease for life determinable
earlier by the tenant on one month’s notice and by the landlords on the happening of
certain specified events. So our conclusions are in fact reflecting the intentions of the
parties. But it is not difficult to imagine circumstances in which the same analysis would
applybut be very far from the intentions of the parties. And that analysis is not available
where the tenant is a company or corporation. So there the court is unable to give effect
to the undoubted intentions of the parties. Yet, as the court pointed out in the Midland
Railway case, it is always open to the parties to give effect to those intentions by
granting a very long term of years, determinable earlier on the happening of the
uncertain event. The law, it would seem, has no policy objection to such an
arrangement, so it is difficult to see what policy objection it can have to upholding the
arrangement to which the parties in fact came.”
If we think of a lease as both property and a contract, then it is always open to parties to
negotiate terms. As Lady Hale says, the parties have to negotiate something a bit odd: “a very
long term of years, determinable earlier on the happening of the uncertain event”, but it can be
done. One problem of course is that thousands of leases – like Mrs Berrisford’s – have already
been completed and are now (effectively) 90 year leases for lives (even though few people might
realise this).
Also, just as there is a distinction between a lease and a licence, there is in housing law a
difference between different types of tenancies, in particular a tenancy from a housing
association (colloquially, a “social housing tenancy”) is a statutory tenancy that protects the
tenant – and cannot be ended as easily – as a private landlord’s assured shorthold tenancy. Lord
Hope, makes this point, held that if English housing law were the same as Scottish housing law
(which it is not) it would be open to Mexfield to register as a social housing provider, creating a
secure tenancy for Mrs. Berrisford (975E-976A (“it is normal practice for eligible bodies to
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apply for registration”). This is not possible in England but it shows that there are other policy
options available to cure situations like Mrs. Berrisford’s but of course this too would require
Parliamentary time and interest.
Why didn’t the Supreme Court in Mexfield change the rule on uncertain term?
Lord Neuberger gives five reasons for this (paras 35-37):
1. For many centuries the prohibition on uncertain terms has been regarded as fundamental;
2. The 1925 Act appears to support this conclusion in s1, 149 and 205;
3. The certainty requirement was confirmed only some 20 years ago by the House of Lords
(in Prudential Assurance);
4. “[W]hile not a very attractive point, there is the concern expressed by Lord Browne-
Wilkinson, at p 397A, namely that to change the law in this "eld ‘might upset long
established titles’.”
5. At least where the purported grant is to an individual, as opposed to a company or
corporation, the arrangement does in fact give rise to a valid tenancy, as explained below.
ie. there is a solution – s149(6)
Lady Hale’s reasons for not changing the rule (para 96) are “leave it to Parliament”:
“it seems to me obvious that the consequence of our having reached the conclusions
which we have on the first issue is to make the reconsideration of the decision in the
Prudential case [1992] 2 AC 386, whether by this court or by Parliament, a matter of
some urgency. As former Law Commissioner Stuart Bridge has argued [2010] Conv
492, 497:
‘If the parties to a periodic tenancy know where they stand, in the sense that the contract
between them is sufficiently certain, then that should be enough. If a landlord, in this
case a fully mutual housing association, decides that its tenants should be entitled to
remain in possession unless and until they fall into arrears with their rent or break other
provisions contained in the tenancy agreement, it is difficult to see what policy
objectives are being furthered in denying the tenant the rights that the agreement seeks
to create.’
Quite so.”
Prudential Assurance, in other words, was too recent and Parliament has not intervened. Had the
Supreme Court changed in the rule in Mexfield, this might have raised quite sharp questions
about the separation of powers.
McFarlane et al write (at p781): “Whatever one’s view as to the effect or validity of the Supreme
Court’s reasoning in Berrisford, one can also ask if, rather than adopting a technical work-
around to the certainty of term rule, it would be simpler and better to remove the rule itself. It
must be emphasized that, as the Supreme Court was not asked by either party to overrule
Prudential Assurance, it would have been inappropriate for it to do so. Nonetheless, it may seem
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odd that the law is left with a rule for which judges in the highest court in the land have twice
been unable to find a persuasive justification.”
Is Mexfield v Berrisford good law?
It is certainly binding as it was decided by the Supreme Court in 2011 but it has been criticised.
The decision does not apply to “tenancies which were capable of standing on their own two feet
as legal estates without statutory help” (per Laing J in Hertfordshire CC v Davies [2017] EWHC
1488, citing Lord Walker in Mexfield (para 84)).
Mexfield was doubted by HHJ Paul Matthews in Gilpin v Legg [2017] EWHC 3220 but this is
not an influential decision.
It was interpreted more narrowly by Hildyard J in
Southward Cooperative v Walker
The claimant, a fully mutual housing association, granted a weekly tenancy of a residential
property to the Walkers. The term was alleged to be uncertain as the grounds on which the
Cooperative could give a notice to quit (and so end the tenancy) included a persistent delay on
paying rent. This is only a first instance decision (Southward Cooperative decided not to appeal)
and Hildyard J found a contractual licence instead of a tenancy.
The reason it is significant, however, is that it provides a way round Mexfield (though this is
itself not uncontroversial).
Hilyard J cites Lord Neuberber, in para 17 of Mexfield, where his Lordship said that:
“a tenancy agreement has to be interpreted in the same way as any other written
contract, so the precise rights and obligations of the parties under it must depend on the
terms which the parties have agreed and the circumstances in which they were agreed.
However, in some circumstances, there may be principles of law which result in the
parties’ intentions being frustrated or modified, and, as is clear from the reasoning in
Street v Mountford [1985] AC 809, the legal consequences of what the parties have
agreed is a matter of law rather than dependent on what the parties intended.”
Hildyard J draws on this and then concludes that (91-93 ff):
“I have concluded that the “rule” [in s149(6)] does not depend for its application on the
parties’ intentions; but the judgments of the Supreme Court in the Mexfield case leave
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open the possibility that it may be disapplied where those intentions and fundamental
aspects of their agreement would be confounded by it.
I am fortified in this conclusion by the consideration that the originof the “rule” must
have been intended to save agreements that would otherwise fail, in accordance with the
maxim “ut res magis valeat quam pereat”, not to destroy the essence of their bargain and
foist on them a long term relationship against their will and which one of them may not
be able to terminate.
Further, even though not perhaps directly in point, cases such as Lace v Chantler …, do
at least serve to illustrate and emphasise the ordinary reluctance (in each case, in fact,
refusal) of the court to foist on the parties a “new bargain which neither of the parties
ever intended to enter into” (per Lord Greene MR in Lace v Chantler, at p 372).”
[“ut res magis valeat quam pereat” means it is better for a thing to have effect than to be made
void].
So Hildyard J. holds that if there is no other solution, s149(6) LPA would apply but that courts
should not change the terms of the contract between the parties. This approach offers something
of a compromise position. S149(6) is not a “rule” but should be applied if the arrangement
would otherwise be void although the courts should not re-write the parties bargain if an
alternative solution (in Southward Cooperative, a contractual licence) is available.
Some people dislike this approach as much as others dislike Mexfield. Mark Thompson, for
example, in Thompson’s Land Law wrote at p.378: “This decision introduces an unwelcome
aspect of uncertainty into an area where, it had been thought, such problems had been
significantly reduced.” As a biographical curiosity, it is worth noting that Lord Neuberger
(David Neuberger Q.C. as he then was) was the losing barrister in Prudential Assurance in the
House of Lords, asking, rhetorically back then: “what is actually wrong with a tenancy of
uncertain duration?” But when Lord Neuberger was in the Supreme Court, with the opportunity
to overrule the rule on certainty of leases, he declined to do so (for quite understandable
separation of powers reasons). Instead, he found the solution to the problem in s149(6) LPA
1925.
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6. EXCLUSIVE POSSESSION
Exclusive possession is the right to exclude all (including the landlord, apart from emergencies
etc.) from a property. The term is not defined in the LPA (s205, the definitions section).
Exclusive possession is a prerequisite of a tenancy, rather than a consequence (Hill, MLR, 1989,
409).
A. Street v Mountford (1985)

There needs to be exclusive possession in order for there to be a tenancy.
In Street v Mountford, the landlord had conceded that exclusive possession had been granted
(818D) so the point was not argued before the court, however this did not stop Lord Templeman
dedicating quite a lot of his judgment to the question of exclusive possession.
The general rule is that exclusive possession entitles the occupier to exclude all persons from the
property including the landlord. It should be noted that the term is exclusive possession not
occupation; possession being a much broader term, including the receipt of rents and profits
from the property (see s205xix LPA 1925).
In Street v Mountford Lord Templeman said (at 823D, quite late in the judgment):
“Exclusive possession is of first importance in considering whether an occupier is a
tenant; exclusive possession is not decisive because an occupier who enjoys exclusive
possession is not necessarily a tenant.”
According to Lord Templeman exceptions to exclusive possession include an “owner in
fee simple, a trespasser, a mortgagee in possession, an object of charity or a service
occupier”, defining a “service occupier” as “a servant who occupies his master's
premises in order to perform his duties as a servant. In those circumstances the
possession and occupation of the servant is treated as the possession and occupation of
the master and the relationship of landlord and tenant is not created”.
Lord Templeman held that there would not be exclusive possession here if the landlord provides
“attendance or services”. In that situation, the person will be a lodger and the agreement will be
a licence.
“If on the other hand residential accommodation is granted for a term at a rent with
exclusive possession, the landlord providing neither attendance nor services, the grant is
a tenancy; any express reservation to the landlord of limited rights to enter and view the
state of the premises and to repair and maintain the premises only serves to emphasise
the fact that the grantee is entitled to exclusive possession ~ and is a tenant. In the
present case it is conceded that Mrs. Mountford is entitled to exclusive possession and is
not a lodger.” (818 C-D)
B. Factual scenarios & Exclusive Possession

Four factual scenarios have emerged questioning whether or not there was exclusive possession.
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1. Keys. Could the retention of keys by the landlord negative exclusive possession by the tenant?
Lord Donaldson in Aslan v Murphy held, not necessarily: “Provisions as to keys do not have any
magic in themselves … what matters is what underlies the provisions as to keys. Why does the
owner want a key?” So, for example, if the landlord retains a key for essential repairs, that does
not negate a grant of exclusive possession.
2. Services including clean linen, tidying the property or meals. Lord Templeman in Street v
Mountford held that in this case the occupier is likely to be a lodger as the landlord requires
unrestricted access to and use of the premises. This point was taken up by Lord Donaldson in
Aslan, where he said: “if the true bargain is that the owner will provide genuine services which
can only be provided by having keys, such as frequent cleaning, daily bed-making, the provision
of clean linen at regular intervals and the like, there are materials from which it is possible to
infer that the occupier is a lodger rather than a tenant. But the inference arises not from the
provisions as to keys, but from the reason why those provisions formed part of the bargain.”
3. Reserving the right to enter and inspect the property. This assumes, said Lord Templeman in
Street v Mountford that exclusive possession has been granted, otherwise there would be no need
for the landlord to reserve these limited rights of entry.
4. Alternative accommodation. Sometimes landlords reserve the right to move the occupier to an
alternative property. While often such a clause would be a pretence occasionally it may negative
a grant of exclusive possession. For example, in Westminster CC v Clarke the council managed a
hostel and the House of Lords held that although Clarke, physically occupied his room in the
hostel, he did not enjoy possession of it exclusively of the council. But this was a very special
case – council housing a homeless person in transitory accommodation.
Aslan v Murphy (No 1) [1990] 1 WLR 766
The agreement was for a basement room measuring 1.4m x 3.7m where the occupant was
required to vacate the room between 10.30 and noon each day. The agreement also conferred the
ability on “licensor” to introduce additional “licensee” to the room. And the “licensor” retained
the keys.
It was a lease. Lord Donaldson M.R. held that these two provisions (re vacating the premises and
introducing new licencees) were “wholly unrealistic and were clearly pretences’ (773 A).
“A landlord may well need a key in order that he may be able to enter quickly in the event
of emergency: fire, burst pipes or whatever. He may need a key to enable him or those
authorised by him to read meters or to do repairs which are his responsibility. None of
these underlying reasons would of themselves indicate that the true bargain between the
parties was such that the occupier was in law a lodger.
On the other hand, if the true bargain is that the owner will provide genuine services
which can only be provided by having keys, such as frequent cleaning, daily bed-making,
the provision of clean linen at regular intervals and the like, there are materials from
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which it is possible to infer that the occupier is a lodger rather than a tenant. But the
inference arises not from the provisions as to keys, but from the reason why those
provisions formed part of the bargain.”
So it depends on the circumstances of the case and the retention of keys does not automatically
mean that as an arrangement is a licence.
Westminster City Council v Clarke [1992] 2 AC 288
This was a house for homeless residents with 31 single rooms, each with a bed and limited
cooking facilities, which were used as a hostel for homeless single men, including men with
personality disorders or physical disabilities. There was a warden supported by a team of social
workers. There was an 11pm curfew and residents were allotted rooms.
“This is a very special case which depends on the peculiar nature of the hostel maintained by the
council” (Lord Templeman 302 B). He held that it was a licence.
C. Shared exclusive possession

A.G.Securities v Vaughan; Antoniades v Villiers [1990] 1 AC 417 (the two cases were heard
together) (the HoL judgment starts at 460, you do not need to read the decisions in the CofA).
In Vaughan four occupants were flat-sharing a four-bedroomed flat under four different
agreements, each paying their own rent: “four separate agreements with four separate persons
between 1982 and 1985” (460A).
In Antoniades there were two occupants “living as husband and wife” who had entered separate
but identical agreements at same time for an attic converted into furnished residential
accommodation “comprising a bedroom, a bed sitting-room, kitchen and bathroom. The
furniture in the sitting-room consisted of a bed-settee, a table-bed, a sideboard and a chair.”
(para 456D). The agreements were expressed to be licences and stated, inter alia, that the Rent
Acts did not apply, that “the licensor is not willing to grant . . . exclusive possession” and that
the use of the rooms was “in common with the licensor and such other licensees or invitees as
[he] may permit from time to time to use the said rooms.” At no time had he allowed any other
occupant into the flat although he had consented to a friend of theirs staying in the flat for a
period on the bed-settee.
In both cases, the question was did the residents have exclusive possession and so a joint
tenancy? Lord Templeman held that in Vaughan the four sharers did not, but in Antoniades the
couple did have exclusive possession and a joint tenancy:
“If a landlord who owns a three-bedroom flat enters into three separate independent
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tenancies with three independent tenants each of whom is entitled to one bedroom and
to share the common parts, then the three tenants, if they agree, can exclude anyone else
from the flat. But theydo not enjoy exclusive occupation of the flat jointly under the
terms of their tenancies. In the present case, if the four respondents had been jointly
entitled to exclusive occupation of the flat then, on the death of one of the respondents,
the remaining three would be entitled to joint and exclusive occupation. But, in fact, on
the death of one respondent the remaining three would not be entitled to joint and
exclusive occupation of the flat. They could not exclude a fourth person nominated by
the company.” (460G-H).
“In [Vaughan] the four agreements were independent of one another. In [Antoniades]
the two agreements were interdependent. Both would have been signed or neither. The
two agreements must therefore be read together. Mr. Villiers and Miss Bridger applied
to rent the flat jointly and sought and enjoyed joint and exclusive occupation of the
whole of the flat. They shared the rights and the obligations imposed by the terms of
their occupation. They acquired joint and exclusive occupation of the flat in
consideration of periodical payments and they therefore acquired a tenancy jointly.”
(460H-461A)
Lord Jauncey also held that the four residents did not have exclusive possession together: “there
were four licence agreements relative to shared occupation of the flat which did not in aggregate
confer exclusive possession thereof upon the four defendants.” (474G)
In Antoniades, Lord Templeman considered clause 16: “The licensor shall be entitled at any time
to use the rooms together with the licensee and permit other persons to use all of the rooms
together with the licensee.”
“Clause 16 is a reservation to Mr. Antoniades of the right to go into occupation or to

nominate others to enjoy occupation of the whole of the flat jointly with Mr. Villiers and
Miss Bridger. Until that power is exercised Mr. Villiers and Miss Bridger are jointly in
exclusive occupation of the whole of the flat making periodical payments and they are
therefore tenants. The Rent Acts prevent the exercise of a power which would destroy
the tenancy of Mr. Villiers and Miss Bridger and would deprive them of the exclusive
occupation of the flat which they are now enjoying. Clause 16 is inconsistent with the
provisions of the Rent Acts.” (462D)
“Clause 16 was not a genuine reservation to Mr. Antoniades of a power to share the flat
and a power to authorise other persons to share the flat. Mr. Antoniades did not
genuinely intend to exercise the powers save possibly to bring pressure to bear to obtain
possession. Clause 16 was only intended to deprive Mr. Villiers and Miss Bridger of the
protection of the Rent Acts. Mr. Villiers and Miss Bridger had no choice in the matter.
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… Mr. Villiers is reported as saying that: "He [Mr. Antoniades] kept going on about it
being a licence and not in the Rent Act. I didn't know either but was pleased to have a
place after three or four months of chasing." The notes of Miss Bridger's evidence
include this passage: "I didn't understand what was meant by exclusive possession or
licence. Signed because so glad to move in. Had been looking for three months.“ (Lord
Templeman, 462F-G)
In Street v. Mountford [1985] A.C. 809, 825, I said "Although the Rent Acts must not be
allowed to alter or influence the construction of an agreement, the court should, in my
opinion, be astute to detect and frustrate sham devices and artificial transactions whose
only object is to disguise the grant of a tenancy and to evade the Rent Acts."
It would have been more accurate and less liable to give rise to misunderstandings if I had
substituted the word "pretence" for the references to "sham devices" and "artificial transactions
… The facts must prevail over the language in order that the parties may not contract out of the
Rent Acts. In the present case clause 16 was a pretence.” (Lord Templeman, 462H-463D)
Lord Oliver:
“There is an air of total unreality about these documents read as separate and individual
licences in the light of the circumstance that the appellants were together seeking a flat
as a quasi-matrimonial home. A separate licensee does not realistically assume
responsibility for all repairs and all outgoings. Nor in the circumstances can any realistic
significance be given to clauses 16 and 17 of the document. It cannot realistically have
been contemplated that the respondent would either himself use or occupy any part of
the flat or put some other person in to share accommodation specifically adapted for the
occupation by a couple living together… The unreality is enhanced by the reservation of
the right of eviction without court order, which cannot seriously have been thought to be
effective, and by the accompanying agreement not to get married, which can only have
been designed to prevent a situation arising in which it would be quite impossible to
argue that the "licensees" were enjoying separate rights of occupation.” (467H-468C)
From Thompson and George: “The difference between the two cases was that in Vaughan, the
documents reflected the reality of the situation, whereas in Villiers they did not. In Vaughan, the
reality of the situation was that these were genuinely independent agreements to cater for a
fluctuating body of people occupying the same household. While it was accepted that there
could have been separate tenancies of a part of the house, this did not occur in the present case,
perhaps because the practice was that, when one of the occupants left, the remaining occupants
chose whether they wished to move into the vacated room. Neither could they, collectively, be
seen as joint tenants, as there was no unity of time, title, or interest between them. In Villiers, on
the other hand, the view was taken that ‘the two agreements were interdependent. Both would
have signed or neither. The two agreements must therefore be read together.’ Reading them
together, the effect was that the couple were joint tenants, each being jointly and severally liable
for the rent. The provision in the agreements to introduce a third person into the property was
seen as being quite unrealistic and, in any event, as the original agreement had been held to
create a joint tenancy, the introduction of a third person was not something which the landlord
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could do. To do this would have involved the termination of the original lease and the creation
of a new licence and this is not permitted by the Rent Act 1977.”
D. The Four Unities (Interest, Title, Time, Possession)

Lord Jauncey and Lord Oliver also referred to the four unities in their decision in Vaughan and
Antoniades (although Lord Templeman did not). The used the principle to confirm their findings.
Lord Jauncey: “I should be surprised indeed if a joint lease could be created by four
separate documents of different dates in favour of four independent persons each paying
a different rent and also for different periods of six months. Such an arrangement
would… be notably deficient in the four unities of interest, title, time and possession.”
(474F).
Lord Oliver: “... No unity of interest, no unity of title, certainly no unity of time and
no unity of possession”. Rejects “the strange and unnatural theory that, as each occupant
terminates his agreement, there is an implied surrender by the other three and an implied
grant of a new joint tenancy to them together with the new incumbent when he enters
under his individual agreement.” (472 A-C)
E. Exclusive Possession v Exclusive Occupation
Watts v Stewart (2016)
Mrs Watts lived in an almshouse owned by the Trustees of Ashtead United Charity. She engaged
in anti-social behaviour and caused disturbance for other residents.
Was she a tenant? Specifically, did she have a “tenancy at will”? (see above p.4 for a definition
of tenancy at will). The Court of Appeal held that she did not have exclusive possession and so
was not a tenant at will in the way her barrister (Mark Wonnacott) had suggested.
Sir Terence Etherton MR: “Mr Wonnacott’s starting point on this issue was that Lord
Templeman (with whom all the other members of the Judicial Committee agreed) in Street v
Mountford [1985] 1 AC 809 was correct when he said (at page 818E) that there can be no
tenancy unless the occupier enjoys exclusive possession, but he was plainly wrong when he said:
“an occupier who enjoys exclusive possession is not necessarily a tenant. He may be … an
object of charity” (para 28) [An object of charity is someone who receives charity, for example,
good housing at a lower rental rate].
Sir Terence Etherton did not accept this argument by the barrister: “Mr Wonnacott’s attack on
that part of the speech of Lord Templeman is bold, not least because he was unable to refer us to
any authority or scholarly commentary in support of his criticism.” (para 30) He rejects the
authority cited by Mark Wonnacott of Earl of Pomfret case in1752.
More importantly, Sir Terence Etherton went on to confirm a distinction between exclusive
possession and exclusive occupation:
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“there is a distinction between legal exclusive possession or a legal right of exclusive

possession, on the one hand, and a personal right of exclusive occupation, on the other
hand … Legal exclusive possession entitles the occupier to exclude all others, including
the legal owner, from the property. Exclusive occupation may, or may not, amount to
legal possession. If it does, the occupier is a tenant. If it does not, the occupier is not a
tenant and occupies in some different capacity. In the reported cases, including the
passage in Street v Mountford which Mr Wonnacott has criticised, the expression
“exclusive possession” does not refer to legal possession but to exclusive occupation”
(para 35).
So exclusive possession entitles the occupier to exclude all others including the legal owner (ie.
the landlord). Legal occupation does not allow the occupier to do this.
Here, Mrs Watts was not a tenant at will:
The status of a beneficiary occupying trust property will depend upon the terms and conditions
on which the occupation was permitted… the terms on which Mrs Watts was permitted to
occupy the property excluded the grant of legal possession. There is simply no scope in those
circumstances to infer the grant of a tenancy at will” (para 45)
7. THE LEASE/LICENCE DISTINCTION TODAY
Although the Rent Act 1977 is long gone (repealed by Thatcher’s housing legislation in the late
1980s), there are still differences today between residents with leases and people with licences.
These differences are set out in some detail in the White Paper on Property Guardians uploaded
into Readings on Blackboard but it is not part of the syllabus. Very broadly, there are four broad
differences:
(1) Statutes generally only protect tenants: security of tenure and (v ltd) rent regulation.
(2) Licences can be determined by reasonable notice, subject to the contract between the parties, if
any, and statute. Tenancies, on the other hand, require certain periods of notice and have
technical rules as to their determination.
(3) Licences are purely personal rights that do not bind 3Ps; tenancies are property rights which
do.
(4) Generally, licensees are not entitled to sue for tortious acts to the land other than through the
estate owner. Tenants are entitled to sue in their own right.
Property Guardians
The distinctions between leases and licences today is illustrated in the situations faced by
property guardians. Property guardians are people who live in buildings that are not necessarily
adapted for residential occupation (old schools, offices and even fire stations, for example). They
usually pay less rent but their paperwork gives them a licence, rather than a tenancy. There are
estimated to be around 5,000 property guardians in the UK, including some in Bristol, which is
where the litigation has also happened.
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Camelot v Greg Roynon County Court at Bristol, 24 February 2017.
As the decision is a county court decision, it is not an authority which is binding on any other
court, however it is a useful, modern analysis of the lease/licence distinction and shows that the
law is as uncertain today as it has been for some time.
Mr Roynon had been offered and accepted specific rooms by Camelot in accommodation that
had formerly been used by the local authority as a residential care home for the elderly. He had
keys to those rooms and could lock them but it was Camelot who controlled assignment of
rooms, not the Guardian occupiers, although the agreement did not contain a power for Camelot
to move Mr Roynon.
Matthews HHJ held that the absence of an express reserved right to enter for inspection or repair
was not fatal to the agreement being a tenancy (even though only tenants – not licensees - have
rights of repair).
The judge noted the extent of the restrictions on Mr. Roynan in his rooms and the property as a
whole (including no smoking, having no more than two guests at a time and escorting guests
from the premises (all in clause 10). However, he held that these restrictions were not
incompatible with a finding of exclusive possession.
“A landlord’s control of premises can be a factor in determining whether an occupier
has exclusive possession or not. For example, where a landlord reserves the right to
move occupiers from room to room as occasion demands, then that would generally
indicate that the occupier does not have exclusive possession in his room, even though
he may have the exclusive use of whichever room he is occupying for the time being.
However, that is not the case here. Clause 10 does not enable Camelot to move a
Guardian from room to room, nor does it require a Guaridan to allow certain classes of
people into his room. Instead, Clause 10 places restrictions upon the way in which a
Guardian can use his room. This is a common feature of tenancies and is not
incompatible with exclusive possession. For example, it would be unremarkable if a
tenancy agreement contained a restriction that prevented an occupaier from keeping a
pet in his room. Such a restriction would not be incompatible with exclusive possession.
In the same way (and by way of example) Clause 10.7 contains a restriction that
prevents an occupier from having more than two guests in his room at a time. This may
be an onerous restriction, but it is not incompatible with exclusive possession” (paras
40-41).
The judge also held that Camelot’s monthly inspections of the rooms did not remove exclusive
possession: “the fact of a landlord exercising limited rights of entry for the purposes of
inspect/viewing/repairing the premises, is not incompatible with exclusive possession” (para 43).
Matthews HHJ found that Mr Roynan had exclusive possession of his rooms, that the term was
monthly and that Mr. Roynan had an assures shorthold tenancy.
8. BRUTON
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Bruton v London & Quadrant Housing Trust [2000] 1 A.C. 406
A housing trust was granted a licence by the local authority to use properties acquired by the
authority for redevelopment as temporary accommodation for homeless people. The trust
undertook to ensure that no occupier was given security of tenure without the prior consent of
the local authority. The plaintiff signed an agreement with the trust for the occupation of a self-
contained flat in one of the properties on a temporary basis on a weekly licence. Mr. Bruton
sought to enforce an alleged leasehold covenant to repair.
“An agreement having these characteristics creates a relationship of landlord and tenant
to which the common law or statute may then attach various incidents. The fact that the
parties use language more appropriate to a different kind of agreement, such as a
licence, is irrelevant if upon its true construction it has the identifying characteristics of
a lease…
The decision of your Lordships' House in Westminster City Council v. Clarke [1992] 2
A.C. 288 is a good example of the importance of background in deciding whether the
agreement grants exclusive possession or not. But the classification of the agreement as
a lease does not depend upon any intention additional to that expressed in the choice of
terms. It is simply a question of characterising the terms which the parties have agreed.
This is a question of law.” (Lord Hoffman, 412 E-H)
So Mr. Bruton had a tenancy, in Lord Hoffman’s words:
“the term "lease" or "tenancy" describes a relationship between two parties who are
designated landlord and tenant. It is not concerned with the question of whether the
agreement creates an estate or other proprietary interest which may be binding upon
third parties. A lease may, and usually does, create a proprietary interest called a
leasehold estate or, technically, a "term of years absolute." This will depend upon
whether the landlord had an interest out of which he could grant it. Nemo dat quod non
habet. But it is the fact that the agreement is a lease which creates the proprietary
interest. It is putting the cart before the horse to say that whether the agreement is a
lease depends upon whether it creates a proprietary interest” (para 415 B-C).
“The agreement … plainly gave Mr. Bruton a right to exclusive possession. There is nothing to
suggest that he was to share possession with the Trust, the council or anyone else [cf
Westminster CC v Clarke (1992)]” (Lord Hoffman 413 H).
Commentary on Bruton
This was a decision, which, it is fair to say caused some consternation as it seemed to violate an
ancient principle that a lease needs to be carved out of an estate.
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Jan Luba QC, for example, noted in a 1999 Editorial in the Landlord and Tenant Review that:
“For decades landlord and tenant practitioners have learned and practised the proposition that an
interest in land can only be acquired from another who has such an interest. Many of us were
initially presented with the image of land-law as a tree. The trunk represented the fundamental
interest in land (the freehold) from which could spring branches (leases) and from them the
twigs (sub-tenancies). If you cut the branch “with it fell the twig, and so on. But now, it seems, a
person with no interest in land can grant a tenancy or lease.”
A non-proprietary lease?
M. Lower (in “The Bruton tenancy”(2010) Conveyancer 38) raised the question of whether a
lease is only an estate in land (s1(1)(b) LPA 1925) or whether it can be “just” a contract? Can
you have a “non-estate” lease? He suggested you could. “Lord Templeman's judgment in Street
v Mountford expresses the clear understanding that the lease is to be viewed as an estate in land.
It is possible, however, to read the judgment as authority for the proposition that a lease is any
contract that confers exclusive possession (as against the landlord) for a term and at a rent. Thus,
the way was left open for the idea that the lease is just a species of contract that need not create
an interest in land; the ‘landlord’ need not have a reversionary interest out of which the lease can
be created. The House of Lords' decision in Bruton v London & Quadrant Housing Trust
confirmed that it was indeed possible to create this non-proprietary lease.”
Alternatively, can Bruton be justified by principles of relativity of title?

Some argue that it can. In Mexfield, Lord Neuberger does not query Lord Hoffman’s decision in
Bruton saying only: “The Bruton case was about relativity of title which is the traditional
bedrock of English land law” (974E).
Relativity of title is the ancient land law principle that title is relative so that someone may come
onto a piece of land hand and have title that prevails over some people, but is not absolute, and
will not prevail against someone who has a superior claim. We will study this when we come to
adverse possession (squatting) since in unregistered land a squatter can possess land adversely
(ie. without the consent of the landowner) and can see of other people and eventually (after 12
years, under limitation rules) the freeholder. In registered land, the rules on adverse possession
are now quite different (ss96 and 97 and Schedule 6, LRA 2002) and even more importantly the
principle of relativity of title has been over taken in registered land by the vesting of ownership
in the registered owner by registration (the “statutory magic” of s58 LRA 2002).
Mark Thompson also thought that Bruton was justifiable in that way, giving the following
example: “If a squatter goes into possession of freehold land, he occupies the land as the holder
of an estate in fee simple. His title is good as against anyone except a person with a better title .. It
is open to him to convey his possessory title to anyone else, in which case that person’s title will
be as good as that of the squatter. That is, his right to possession is only liable to be defeated by
the owner of the paper title to the land. If, instead of conveying the land to a purchaser, the
squatter purports to grant a lease of it, then similar reasoning should apply. As between the
squatter and the tenant, the lease is perfectly valid, and the tenant’s right of occupation can only
be upset by title paramount: that is an action brought by the true owner of the land. Whether or
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not the parties to the original lease knew that the landlord had no title to the land should be quite
irrelevant. If the squatter transfers his title to a purchaser then, as a person deriving title from the
squatter, the purchaser will be in no better position than the squatter and so the tenancy will be
binding on him. On this analysis, it should make no difference if the person purporting to create
a licence is himself a licensee rather than a squatter. In both cases, one should look to the
agreement between the parties to see if it is consistent with a lease or a licence.”
All in all, there is no clear view of whether Bruton is right or wrong. Many academics disagree
with it but barristers and judges have assimilated the finding and do not raise it as problematic
(notably Lord Neuberger in Mexfield). In Roynon v Camelot, HHJ Matthews does not raise the
issue but it is almost certain the Camelot there had a licence from Bristol City Council rather
than a lease (so creating a situation v similar to Bruton). One further argument for Bruton (and
the one I have made in lectures) is that this protects residents, they can bring claims for repair
against their landlord (either L&Q in Bruton or Camelot in Roynan and be protected). Seeing it
from the tenant’s point of view arguably is also arguably consistent in the move towards
occupation contracts, outlined in the Law Commission’s Consultation Paper 168 Renting Homes.
As one person said on Padlet, in relation to the problem scenario in the lecture where Barney
loses his room above the bar in the Water Buffalo Lodge: “Where is the justice in this for
Barney, if he gets evicted. None of this is his fault”. In the words of Lady Hale in Mexfield,
“Quite so.”
One argument for the Bruton finding is that landowners have a straightforward remedy if they
don’t want to be bound by the tenancy, they can just withdraw the licence. This is what happened
here.
Following the decision in Bruton, Lambeth gave notice to L&Q to terminate the lease (they had
given L&Q a lease during the Bruton litigation but the principle would be the same if they
withdrew the licence). Lambeth then notified the occupiers that they were, or would become,
trespassers and brought possession claims. The occupiers responded that they had become
Lambeth's tenants following the termination of L&Q’s1995 lease. This time, the litigation was
brought by a Mr. Kay.
Kay v Lambeth [2006] 2 AC 465
Lambeth could terminate their arrangement with L&Q and as the local authority had no
relationship with the occupiers (Mr. Bruton and Mr. Kay), they would not become trespassers
(because the licence was withdrawn) and would have to leave. Lord Scott held that:
“the consensual termination of LQHT's contractual licence from Lambeth could not, in my
opinion, turn the Bruton “non-estate” tenants into estate tenants of Lambeth …
the Bruton tenants were not bound by a transaction between Lambeth and LQHT to which they
were not parties. But the contended for conclusion that they therefore became tenants of
Lambeth is a non sequitur. They never were sub tenants holding, via a grant from LQHT, an
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interest created by Lambeth. They were tenants of LQHT holding an interest created by LQHT.
This means that the non-proprietary arrangement binds only the immediate landlord, but not
persons with a superior title and (presumably) other third parties” (Lord Scott, 525C).
9. CONTRACT OR PROPERTY?
One of the recurring themes in the law of leases – around since feudal times as Mark
Wonnacott’s history shows – is the extent to which a lease is real or personal property, or to re-
phrase it an estate in land or a contract. It can be both, but if the two legal systems conflict,
which should win? This was the question before the courts in two cases concerning local
authority social housing provision (which is an incredibly rare resource).
Hammersmith v Monk [1992] 1 AC 478
Mr. Monk and Mrs Powell were granted a joint secure tenancy by Hammersmith LBC of a flat
where they lived together (co-habited). The tenancy was terminable by four weeks' notice to
expire on a Monday. In 1988, the appellant and Mrs Powell fell out and Mrs Powell left the flat.
Hammersmith LBC agreed to re-house her if she would terminate the tenancy of the flat by
notice to quit, which she did. The notice was given without the Mr. Monk’s knowledge or
consent (so his leasehold estate in land was ended without his consent). Hammersmith LBC
sought possession of the flat (and to evict Mr. Monk).
Could the lease be ended in this way, solely by Mrs. Powell saying she no longer wanted to be
bound by it? What about Mr. Monk’s property rights?
The xxx held that the lease could be ended in this way. Lord Browne Wilkinson xxx:
Hammersmith v Monk suggests that a person’s property rights (in this case the leasehold estate)
can be ended by someone else (the joint tenant)’s decision to end the tenancy, and no longer be
bound by the contract.
“There are two instinctive reactions to this case which lead to diametrically opposite
conclusions. The first is that the flat in question was the joint home of Mr. Monk and Mrs.
Powell: it therefore cannot be right that one of them unilaterally can join the landlords to put an
end to the other's rights in the home. The second is that Mr. Monk and Mrs. Powell undertook
joint liabilities as tenants for the purpose of providing themselves with a joint home and that,
once the desire to live together has ended, it is impossible to require that the one who quits the
home should continue indefinitely to be liable for the discharge of the obligations’ of the other.”
(491F)
These two instinctive reactions are mirrored in the legal analysis of the position… The revulsion
against Mrs. Powell being able unilaterally to terminate Mr. Monk's rights in his home is
property based: Mr. Monk's property rights in the home cannot be destroyed without his consent.
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The other reaction is contract based: Mrs. Powell cannot be held to a tenancy contract which is
dependent for its continuance on the will of the tenant.
Lord Browne Wilkinson agreed with Lord Bridge who had concluded that “unless the terms of
the tenancy agreement otherwise provide, notice to quit given by one joint tenant without the
concurrence of any other joint tenant is effective to determine a periodic tenancy”. (at 491A).
10. HUMAN RIGHTS
Hammersmith v Monk (1992) was decided before the Human Rights Act 1998. On similar facts,
in Sims v Dacorum (2014), Mr. Sims who was in a similar position as Mr. Monk argued that the
decision, or the effect of the decision, in Hammersmith v Monk should be reconsidered since Mr.
Sims argued that his rights (a) to respect for his home under article 8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms and/or (b)
peacefully to enjoy his possessions under article 1 of the First Protocol to the Convention
(“A1P1”) would be wrongly infringed if Dacorum BC’s claim succeeded.
Article 8, ECHR
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.
Article 1, Protocol 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law. The preceding provisions
shall not, however, in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.
Sims v Dacoram BC [2015] AC 1336
Lord Neuberger rejected Mr. Sims’ human rights claim.
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“Given that Mr Sims was deprived of his property in circumstances, and in a way, which was
specifically provided for in the agreement which created it, his A1P1 claim is plainly very hard
to sustain. The point was well put in the written case of Mr Chamberlain QC on behalf of the
Secretary of State: ‘the loss of [Mr Sims’s] property right is the result of a bargain that he
himself made’.” (1341E) Lord Neuberger thereby rejected Mr. Sims’ claim on the basis of
A1P1.
What about Article 8? Lord Neuberger noted that at first instance the judge had held that
Dacorum BC had engaged in a “careful decision-making process amply accorded with article 8.1
[and] that the decision that the council made was one to which it could reasonably have come”.
So he did not find a breach of Article 8 either:
“The fact that the service of the notice to quit put Mr Sims’s right to stay in his home at risk does
not mean that it therefore operated as an infringement of his right to respect for his home. No
judgment of the Strasbourg court begins to justify such a proposition. Mrs Sims had the right to
serve the notice, and, as already observed, the service of such a notice and its consequences were
specifically covered by the agreement which gave Mr Sims the right to occupy the house as his
home in the first place …
The fact that the service of the notice to quit put Mr Sims’s right to stay in his home at risk does
not mean that it therefore operated as an infringement of his right to respect for his home. No
judgment of the Strasbourg court begins to justify such a proposition. Mrs Sims had the right to
serve the notice, and, as already observed, the service of such a notice and its consequences were
specifically covered by the agreement which gave Mr Sims the right to occupy the house as his
home in the first place: see clauses 100 and 101. 23 I accept that the effect of the service of the
notice to quit was to put at risk Mr Sims’s enjoyment of his home. I also accept that different
considerations may very well apply for article 8 purposes to Mr Sims, who is at risk of losing
what has been his family home for many years, from those considerations that apply to
temporarily housed homeless people who are at risk of losing their temporary accommodation as
in R (N) v Lewisham London Borough Council. However, I do not consider that that undermines
the point that full respect for Mr Sims’s article 8 rights was accorded by the facts that (i) his
tenancy was determined in accordance with its contractual terms to which he had agreed in
clause 100 of the tenancy agreement, (ii) he was entitled to the benefit of clause 101 of his
tenancy agreement, (iii) under the Protection from Eviction Act 1977, he could not be evicted
without a court order, and (iv) the court would have to be satisfied that Dacorum was entitled to
evict him as a matter of domestic law, and (v) the court could not make such an order without
permitting him to raise a claim that it would be disproportionate to evict him.” (paras 22-23).
There was no breach here of either A1P1 or Article 8, the rule in Hammersmith v Monk stands.
McDonald v McDonald (2016)
The landlords here were Mr and Mrs McDonald, and the tenant was their daughter, Fiona, who
held under an assured shorthold tenancy. She suffered from a severe form of mental disorder,
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that disorder being of such gravity that the psychiatric evidence was that forcing her to
move home, even were it possible to find accommodation for her, would probably require
her admission to hospital and could also lead to self-harm and the risk of suicide. The house
had been acquired on a buy-to-let basis, the object of the exercise being to provide a
home for Fiona. The purchase price was provided by a company, CHL. The plan was to repay
the loan through housing benefit payable to Fiona. This plan did not work and arrears accrued.
CHL appointed a receiver who, as they were entitled to do, terminated the tenancy. The
consequence of this was that there now existed a mandatory ground for possession in favour
of the parents who, although the litigation was instigated by the receiver, were, technically,
the claimants in the case. The most important issue to be raised was for our purposes was
whether art. 8 had a direct effect on private landowners.
The Supreme Court summarised the starting point for the law on Article 8 and housing:
“In the Pinnock case [2011] 2 AC 104, para 49, this court concluded that, in the light of
the Strasbourg court!s clear and constant jurisprudence
‘if our law is to be compatible with article 8, where a court is asked to make an order for
possession of a person!s home at the suit of a local authority, the court must have the
power to assess the proportionality of making the order, and, in making that assessment,
to resolve any relevant dispute of fact.’
However, the Supreme Court [has made clear] … that it would ‘only be in “very highly
exceptional cases” that it will be appropriatefor the court to consider a proportionality
argument’ and that ‘where . . .the local authority is entitled to possession as a matter of
domestic law, there will be a very strong case for saying that making an order for
possession G would be proportionate’.” (para 36)
The difference here is that the landlord were not a public authority but were private individuals
(in this case, the tenant’s parents). Should courts be able to assess the proportionality of
decisions made by private landlords? The Supreme Court held not.
"It is unlawful for a public authority to act in a way which is incompatible with a
Convention right“: s. 6(1), HRA
A court is a public authority: s. 6(3)(a)
“[A] argues that, because ‘a court’ is specifically included within the expression ‘public
authority’ by section 6(3)(a) of the 1998 Act, no judge can make an order for possession
of a person's home without first considering whether it would be proportionate to do so,
and, if so, what terms it would be proportionate to include in the order.”
So while Article 8 might be engaged, the Supreme Court did not think it could unsettle the
balance of responsibilities implemented by Parliament through the range of legislation cited.
As the barrister for the daughter accepted: “unlike in the case of a public sector
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landlord, a judge invited to make an order for possession against a residential

occupier by a private sector landlord would, if the tenant’s argument is correct, have
to balance the landlord’s A1P1 rights against the occupier’s article 8 rights. Either
party would have a potential claim against the United Kingdom in Strasbourg if the
balance were struck in the wrong place.” (para 39)
“In the absence of any clear and authoritative guidance from the Strasbourg court to
the contrary, we would take the view that, although it may well be that article 8 is
engaged when a judge makes an order for possession of a tenant's home at the suit of
a private sector landlord, it is not open to the tenant to contend that article 8 could
justify a different order from that which is mandated by the contractual relationship
between the parties, at least where, as here, there are legislative provisions which the
democratically elected legislature has decided properly balance the competing
interests of private sector landlords and residential tenants. In effect the provisions of
the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and
Chapters I and IV of the 1988 Act, as amended from time to time, reflect the state's
assessment of where to strike the balance between the article 8 rights of residential
tenants and the A1P1 rights of private sector landlords when their tenancy contract
has ended.” (para 40)
The Supreme Court gave six reasons why they have concluded that Article 8 should not bind
private sector landlords:
1. Para 41: Because this would effectively make the Convention directly
enforceable as between private citizens so as to alter their contractual
rights and obligations, whereas the purpose of the Convention is to protect
citizens from having their rights infringed by the state. To hold otherwise
would also mean that the Convention could be invoked to interfere with the
A1P1 rights of the landlord, and in a way which was unpredictable. Indeed,
if article 8 permitted the court to postpone the execution of an order for
possessionfor a significant period, it could well result in financial loss
without compensation for instance if the landlord wished, or even needed, to
sell the property with vacant possession (which notoriously commands a
higher price than if the property is occupied).
2. Para 42: The contrary view would also mean that article 8 could only be
invoked in cases where a private sector landowner, or other private sector
entity entitled to possession in domestic law, was either required by law, or
voluntarily chose, to enforce its rights through the court, as opposed to
taking the law into its own hands eg by changing the locks when the
residential occupier was absent…
3. Para 43: More broadly, it would be unsatisfactory if a domestic legislature

could not impose a general set of rules protecting residential tenants in the
private sector without thereby forcing the state to accept a super-added
requirement of addressing the issue of proportionality in each case
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where possession is sought. In the field of proprietary rights between

parties neither of whom is a public authority, the state should be allowed to
lay down rules which are of general application, with a view to ensuring
consistency of application and certainty of outcome. Those are two essential
ingredients of the rule of law, and accepting the tenant’s argument in this
case would involve diluting those rules in relation to possession actions in
the private rented sector.
4. Para 44: It is, of course, true that a court, which is a public authority for
the purposes of the 1998 Act (and is regarded as part of the state by the
Strasbourg court), actually makes the order for possession which deprives
the tenant of his home and indeed puts an end to the AST. However, as Lord
Millett explained in Harrow London Borough Council v Qazi [2004] 1 AC
983, para 108, the court is “merely the forum for the determination of the
civil right in dispute between the parties” and “once it concludes that the
landlord is entitled to an order for possession, there is nothing further to
investigate”
5. Para 45: This conclusion does not mean that a tenant could not contend
that the provisions of the 1988 Act did not, for some reason, properly
protect the article 8 rights of assured shorthold tenants: that would involve
arguing that the legislature had not carried out its obligations under the
Convention. However, quite rightly, no such argument was advanced on
behalf of the tenant in this case.
6. Para 46: Of course, there are many cases where the court can be required
to balance conflicting Convention rights of two parties, e g where a person
is seeking to rely on her article 8 rights to restrain a newspaper from
publishing an article which breaches her privacy, and where the newspaper
relies on article 10. But such disputes arise not from contractual
arrangements made between two private parties, but from tortious or
quasi-tortious relationships, where the legislature has expressly,
impliedly or through inaction, left it to the courts to carry out the
balancing exercise. It is in sharp contrast to the present type of case where
the parties are in a contractual relationship in respect of which the
legislature has prescribed how their respective Convention rights are to be
respected.
The Supreme Court find no contrary authority in the Strasbourg jurisprudence (para 59): “In
these circumstances, while we accept that the Strasbourg court jurisprudence relied on by the
tenant does provide some support for the notion that article 8 was engaged when Judge Corrie
was asked to make an order for possession against her, there is no support for the proposition that
the judge could be required to consider the proportionality of the order which he would have
made under the provisions of the 1980 and 1988 Acts.”
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Even though it was obiter, the SC considered the proportionality point and considered that in an
equivalent set of facts against a public-sector landlord, the best the daughter might have obtained
was an order for possession in six weeks time (para 75).
Watts v Stewart (2016) CofA
Barristers for Mrs Watts had conceded that the charity was not a public authority for the
purposes of the Human Rights Act (HRA) 1998. Question was whether the dispute engaged
Article 8 and also, Article 14 on discrimination “The enjoyment of the rights and freedoms set
forth in this European Convention on Human Rights shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status.”
Sir Terence Etherton MR reviews MacDonald and then says at para 75: “The question as to
when Article 8 is engaged therefore remains unclear on the authorities. However, for the
purposes of the present case we are prepared to proceed on the assumption that its facts do fall
within the ambit of Article 8 for the purposes of engaging Article 14.”
Nevertheless, Sir Terence Etherton finds no breach in any case: “the denial of security of tenure
to almspersons is clearly justifiable as a proportionate measure which secures a fair balance
between the interests of charities and current and future almspersons.”
11. REGISTRATION
Legal leases of over seven years are registrable dispositions (s27(2)(b) LRA 2002, you know it’s
legal because it says “the grant of a term of years absolute”). If they are not registered, they
cannot take effect in law (and so must take effect – if at all – in equity) (s27(1) LRA 2002).
Legal leases under seven years are overriding interests (Schedule 3, para 1, “a leasehold estate in
land”) which override registered dispositions (they take effect even if though they can’t be
registered under s27(2)(b) LRA 2002). The reasons for this are practical – if all short leases (ie
less than seven years) needed to be registered at the Land Registry it would create a huge
amount of work. On the other hand, people occupying (particularly residentially) on short leases
should be protected. If a purchaser busy the house you are living in from your landlord, your
lease would bind this new purchaser (the third party) if it is a legal lease because it is an interest
that overrides (Sched 3, para 1).
Equitable leases could be protected by entering a notice under ss 32 – 34 LRA 2002.
They might also be overriding under Schedule 3, para 2 of the LRA 2002 if they are an “an
interest belonging at the time of the disposition to a person in actual occupation”. We will study
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the caselaw on “actual occupation” later in the course.
Note – these are not part of the syllabus if you read about them in a textbook:
- Leasehold covenants (e.g. covenant of quiet enjoyment or of repair)
- Rent Reviews
- Service Charges
- Frustration of Leases
- Commonhold
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What is a lease and how does it differ from a freehold?

What is a lease and how does it differ from a freehold?

What are some historical developments around the concept of a lease?

What are some historical developments around the concept of a lease?

lOMoARcPSD|3963537

Leases lecture notes 2018-19(2)

Land Law (University of Bristol)

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The words lease and tenancy are interchangeable.

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“A leasehold tenancy is a curious mix. One part a personal promise, enforceable

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“there is a distinction between legal exclusive possession or a legal right of exclusive

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Leasehold (for 99 years) ---------------------------------------------------------

Sub-lease (for 98 years and 364 days) -----------------------------------------

Sub-lease (for 98 years and 363 days) -----------------------------------------

Why would you want to create a sub-lease?

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How does a lease start?

How does a lease end?

Leases and Licences

Why does it matter if you have a lease rather than a licence?

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There is an exception for parol leases:

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3. RENT, TERM & EXCLUSIVE POSSESSION

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Why was Lord Templeman so emphatic?

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In the Court of Appeal, Fox L.J. (at 9E) held that:

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So rent was not required in order for there to be a lease.

Skipton BS v Clayton (1993) 25 H.L.R. 596

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Lace v Chantler [1944] K.B. 368

Prudential Assurance v London Residuary Body [1992] 2 AC 386

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Mexfield Housing Co-op v Berrisford [2011] UKSC 52

Mexfield Housing Co-operative’s standard form occupancy agreement purported to grant a

Section 149(6) LPA:

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“…this provision effectively converts a life tenancy into a determinable term of 90

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Lord Neuberger gives five reasons for this (paras 35-37):

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Is Mexfield v Berrisford good law?

It was interpreted more narrowly by Hildyard J in

Southward Cooperative v Walker

Hildyard J draws on this and then concludes that (91-93 ff):

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A. Street v Mountford (1985)

B. Factual scenarios & Exclusive Possession

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