UNIVERSITY OF TECHNOLOGY, JAMAICA

FACULTY OF LAW 2020/2021

LECTURE NOTES- UNIT I LEASES AND TENANCIES

LECTURER: MS. SHANICE N. TROWERS

PROGRAMME: Bachelor of Laws

STAGE/YEAR: Year III Semester I

MODULE TITLE: Real Property II

Definition of a Lease

▪ Simple Definition: A lease is a grant of a right to exclusive possession of land for a

fixed or determinate term.
▪ Case Law Definition: In the case of Bruton v London & Quadrant Housing
Trust [2000] 1 A.C.406, Lord Hoffman stated that:

“a "lease" or "tenancy" is a contractually binding agreement, not referable to any

other relationship between the parties, by which one person gives another the right
to exclusive occupation of land for a fixed or renewable period or periods of time,
usually in return for a periodic payment in money. An agreement having these
characteristics creates a relationship of landlord and tenant to which the common
law or statute may then attach various incidents.

Formalities for the creation of a lease:

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 Essential requirements for the creation of a lease:

▪ In the case of Street v Mountford [1985] A.C 809 Lord Templeman stated that:

“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.’

▪ Thus from this dicta, it is clear that there are generally three elements that must be
present for there to be a valid lease. These are:

1. Certainty of duration (fixed or determinate term);

2. Exclusive Possession; and
3. Rent (premium or periodical payments).

Certainty of Duration:

▪ A lease must be for a determined or defined term and as such the date when a lease
begins must be certain and likewise the date that the lease ends must also be certain.

▪ If however the term of a lease is not stated, it must be able to be ascertained by

some indirect or collateral means. This was outlined in the case of Lace v. Chantler
[1944] K.B.368. In that case:
- There was an agreement to let premises in London during WW2.
- The relevant part of the lease agreement said that the letting was for the
duration of the war.
- It was held that this was uncertain because nobody knew how long the
war would actually last. So the said lease was not a valid one and was
held to be void.
▪ A similar principle was followed and applied in the Jamaican case of Knight v
Pratt [1946] J.L.R.57
▪ See also the case of Binions v Evans [1972] 2 All E.R. 70

Exclusive Possession:

▪ This is a necessary component in determining whether a lease exists

▪ Exclusive possession requires the lessee to have the general right to exclude others,
including the lessor from the demised (leased) premises.
▪ It enables the lessee to exercise all rights of ownership.
▪ It confers the right to keep out strangers and keep out the landlord unless the
landlord is exercising limited rights reserved to him by the tenancy agreement to
enter and view the state of the demised premises. This is usually for the purpose of
protecting the landlord’s interests and not for the purpose of supervising and
controlling the conduct of the tenant in the tenant’s interests.
▪ These reservations of rights to the landlord to enter the premises must not derogate
from the right of exclusive possession.

Factors that vitiates exclusive possession:

1. Control by the lessor/ landlord:

▪ In order for there to be exclusive possession, the landlord must not have
control and must not supervise the tenant. A lessee or tenant is thus not

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 subject to the control of the lessor or landlord.

▪ See for example the Jamaican case of Knight v Pratt (1946) 5 J.L.R.57. In
that case, the plaintiff as restricted by the landlord in several respects.
Firstly, he was restricted as it relates to who he could have admitted onto the
land as the landlord had specified that he could not have brought anyone on
as help or otherwise other than his wife, housekeeper and small children.
Secondly, he was also restricted as it relates to the things he could plant and
the tenant also expressly agreed to comply with the instructions of the agents
of the landlord as it relates to the said plot of land. The court in this case
held that this was not a tenancy, but was rather a license of indefinite
duration which entitled the plaintiff to a reasonable time to harvest and
remove his crops from the land.

▪ See also the cases of Spencer v Esso Standard Oil (1969) 13 W.I.R. 108
and Westminister v C.C. v Clarke [1992] 2 A.C. 288

2. Provision of services:

▪ It has been held that where there is unlimited access for the landlord or the
landlord’s agents to provide services such as housekeeping, that there is
no exclusive possession and thus no tenancy in existence.
▪ See the case of Marchant v. Charter [1977] 1 WLR 1181 where a
bedsitting room was occupied on terms that the landlord cleaned the rooms
daily and provided clean linen each week. In that case the court held that the
occupier was a licensee and not a tenant. Lord Denning had stated in the said
case that:

"What is the test to see whether the occupier of one room in a house is a
tenant or a licensee? It does not depend on whether he or she has
exclusive possession or not. It does not depend on whether the room is
furnished or not. It does not depend on whether the occupation is
permanent or temporary. It does not depend on the label which the
parties put on it. All these are factors which may influence the decision
but none of them is conclusive. All the circumstances have to be worked
out. Eventually the answer depends on the nature and quality of the
occupancy. Was it intended that the occupier should have a stake in the
room or did he have only permission for himself personally to occupy
the room, whether under a contract or not? In which case he is a
licensee?"

3. Relocation by Landlord:
▪ There can be no exclusive possession where the landlord reserves the right
to relocate the tenant to the landlord’s property as and when he pleases. See
the cases of Crancour Ltd v Da Silvaesa (1986) 52 P. & C.R. 204 and
Brennan v Lambeth LBC (1998) 30 H.L.R. 481 on this point.

4. Retention of Keys by the Landlord:

▪ Under certain circumstances, the retention of keys by the landlord can

prevent an occupier from having exclusive possession.
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 ▪ What is important is the purpose for which the landlord retains the keys. The
purpose is therefore the determining factor in deciding whether or not a
tenant has exclusive possession.
▪ Thus, if the purpose for which the landlord retains the keys are for providing
attendance services (Aslan v Murphy (No.1) [1990] 1 W.L.R. 766 ) or
where the landlord imposes a third party in the said rented premises (see
Family Housing Association v Jones [1990] 1 All E.R. 385), then there
would be no exclusive possession.
▪ However, where the keys are retained by the landlord to facilitate the
inspection of repairs, reading of electricity meter or to provide easy access in
times of emergency in order to protect the landlords interest, then there
would still be exclusive possession that is enjoyed by the tenant. See case of
Family Housing Association v Jones [1990] 1 All E.R. 385), where the
Court of Appeal was of the view that it was appropriate for the Family
Housing Association to have means of access to its premises to inspect the
state of repairs and offer support and discuss housing problems with
occupants. They stated that the retention of the keys allocated to Mrs Jones
and her son for those purposes did not negate the inference of the existence
of exclusive possession necessary for constituting a landlord and tenant
relationship.

Rent:

▪ Rent may be defined as the payment which a tenant is bound to pay to his landlord
for the use of the landlord’s property. See the case of Escalus Properties Ltd v
Robinson [1996] 1 Q.B. 231 where rent was defined as:
1. A periodical sum,
2. Paid in return for the occupation of land
3. Issuing out of the land
4. For non-payment of which a distress is leviable (no longer applicable
in Jamaica)
▪ Under the Rent Restriction Act, rent is payable in monetary terms only.

Is rent really an essential condition for a lease to be created?

▪ In the Street v Mountford case, Lord Templeman had stated that rent is an essential
condition for a lease to be created. He had stated that ‘no rent, no lease.’
▪ This was however doubted in the case of Ashburn Anstalt v Arnold & Co [1988]
2 All E.R. 483. In that case, the tenancy in question did not provide for payment of
rent but the Court of Appeal nonetheless held that a valid lease had been created.
The court was of the view that in Street v Mountford, Lord Templemans view that
there is no lease without a rent meant that the absence or presence of a rent clause
created a presumption that a lease existed but was not necessarily an absolutely
decisive factor that there was or was not a tenancy in existence. See also the
Caribbean cases of Coombes v Sampson (1964) 7 W.I.R. 463 and Dean v
Mahibir (1970) 17 W.I.R. 21 on these issues.

▪ The absence of a rent provision however assists the court in answering the question
of whether or not there is in fact a licence or a tenancy.

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 ▪ Where there is no provision for a rent payment the courts are likely to construe the
transaction as having created a licence. See the cases of Onyx v Beard & Ors.
[1996] E.G.C.S.55 and Barnes v Barratt [1970] 2 All E.R. 483

Types of Tenancies

FIXED TERM TENANCY

• Relates to leases for a fixed or determinable period for example a lease for one year or two
years.

PERIODIC TENANCY

• A periodic tenancy is a tenancy for a specific period of time: weekly, fortnightly,

yearly etc, at the end of which time, the lease automatically restarts. There is no need to
enter into a new agreement.

• It can exist either expressly, i.e by stating a ‘monthly tenancy’ or ‘from month to month’
or by implication whereby there is payment of rent and it is implied from terms of the
agreement that a certain period of notice will be given before termination. This period
of notice can be used to imply the specific period of time of the said tenancy.

• Periodic tenancies have to reserve the right of both the landlord and the tenant to
terminate it by giving the regular notice.

• Thus if it is a weekly tenancy, the termination period would be one week. Thus the
notice must end on the last day of the weekly tenancy. If the last day is Friday, the
period of notice must end on Friday.

• Similarly, if it’s a monthly tenancy, again it’s one month’s notice, which must expire on
the last day of that tenancy. Thus, if a monthly tenancy commenced on the 5th day of the
month and it was decided on the 10th October to serve notice, the Notice must be given
BEFORE 4th November to expire on 4 December.

TENANCY AT WILL
• The tenant remains in occupation with the landlords consent on the understanding that
the tenancy may be ended by either party at any time.
• Such a tenancy gives no proprietary interest in land, it doesn’t have to comply with the
requirement of certainty of term.
• However, it is personal and it will not survive assignment and will end at the death of
either party.

They generally arise under these circumstances:

1. The tenant remains in occupation after the lease ends but before a periodic payment of
rent commences.

- See the Australian case of Bond University v Limgold [1998] QCA 214 (98/0196). In
that case, Bond University didn’t pay rent, and the Court said that it was a tenancy at
will. Although Bond had a tenancy at will the Court said they had three years to vacate
the premises. Once rent is paid, it becomes that sort of periodic tenancy.

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2. The tenant’s in possession before a lease has been formally created or where
negotiations are still in progress and before rent has been paid.
See case of Turner v. York Motors Pty Ltd [1951] HCA 52- In that case, the lessee
entered into possession of the premises while negotiations in relation to the terms of a
fixed lease were ongoing. No formal lease was signed at the time of entering
possession. Initially rent was paid weekly but later it was paid monthly. The property
was sold to the plaintiff and the lessee stayed in possession paying rent on a monthly
basis. The Plaintiff claimed that the lessee occupied as a tenant at will and gave a notice
in writing requiring the lessee to quit the premises in one month’s time. This would
have been an appropriate notice for a tenancy at but would not for a periodic monthly
tenancy, as it did not expire on the completion of one cycle of the tenancy.
- Court found that initially a tenancy at will was created when the lessee went into
possession while negotiations were continuing. However, as rent was paid
continuously on a monthly basis, a monthly periodic tenancy arose.
- Therefore the notice to terminate was inadequate.

3. Where a tenant enters into possession under a lease which turns out to be void, a
tenancy will also be created.

TENANCY AT SUFFERANCE
• Where a tenant holds over at the end of the tenancy, without either the landlord’s
consent or dissent
• It is not really a tenancy in the true meaning of the word and it is only described as such
based on the past landlord and tenant relationship that existed between the parties.
• If agreement is then reached between the parties, tenancy starts, if not, the tenant has to
go.
• It is distinct from a tenancy at will because there is no agreement between him and the
landlord which affords him the right to continue to be in possession after his term has
come to an end.
• This also cannot be assigned or sublet to anyone else

TENANCY BY ESTOPPEL
• Where the landlord doesn’t have the right to grant the lease, but the tenant is in
possession.
• Each party is unable to deny the other’s title.
• A tenancy by estoppel is only affected by the parties to it.

Distinction between lease and license:

Lessee
• Proprietary interest in the land
• Able to exclude all others including the
lessor unless permission to enter onto the
property
• Entry without the lessee’s permission, either
express or implied, allows the lessee to eject
him or her as a trespasser.
• May register lease
Licensee
• Has personal interest only
• Cannot exclude the licensor, though he or
she may be able to enforce rights in contract
against the licensor.
• Can only eject trespassers in the name of the
licensor
• Cannot register licence.

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 How to determine if an agreement is a lease or a license

▪ Prior to the 1950’s the test to determine whether or not an arrangement was a lease
or a license was based on exclusive possession.
▪ However, in the case of Errington v Errington [1952] 1 K.B. 290, the test shifted
to that of intention to create legal relations. In that case, Lord Denning stated that
‘the test of exclusive possession is by no means decisive.’ The learned judge was of
the opinion that there are several situations where there can be exclusive possession
but no intention to create a tenancy.
▪ Denning noted further in the said case that
‘Words alone may not suffice. Parties cannot turn a tenancy into a licence
merely by calling it one. But if the circumstances and the conduct of the
parties show that all that was intended was that the occupier should be
granted a personal privilege, with no interest in the land, he will be held to
be a licensee only.’

Sham arrangements:

▪ Subsequent to this decision, there was nonetheless an attempt to mask tenancies as

licensees which can be seen in the case of Somma v Hazelhurst [1978] 1 W.L.R.
1014. In that case, a young unmarried couple occupied a double bed sitting room.
They paid a weekly rent and received no services or attendance from the landlord.
The landlord obliged them to enter separate agreements which stated they were
licencees. The agreements each stated that they would be obliged to share the room
with another person nominated by the landlord. However, in practice the couple
enjoyed exclusive occupation of the room. The question for the court was whether
the agreements were licences as expressed by the parties or whether they did in fact
create a tenancy. It was held that the agreements were licences.
▪ Cumming Bruce LJ stated
“ We can see no reason why their common intentions should be categorised
as bogus, or unreal or as a sham merely on the ground that the court
disapproves of the bargain.”
▪ This was however overruled in the case of Street v Mountford where Lord
Templeman was of the view that the issue of whether or not H and S enjoyed
exclusive possession was not properly addressed and was of the view that a tenancy
was really created.
▪ See also the case of Sylvestre v Cyrus (1959) 1 W.I.R. 407 on sham
arrangements.
▪ Nevertheless, exclusive possession is still a matter of first importance in
determining whether or not there is a lease as against a license though not a
distinctive factor as was noted in the case of Facchini v Bryson [1952] 1 T.L.R.
1386. Likewise, in Aslan v Murphy (Nos 1 and 2) [1989] 3 All E.R. 130 it was
stated that exclusive possession is the touchstone by which the “spade” of tenancy
falls to be distinguished from the “fork” of lodging.

Genuine intention expressed not to create legal relations

▪ Nevertheless, the intention to create legal relation is the paramount consideration.
▪ Therefore, if the parties have unequivocally manifested a genuine intention not to
create a tenancy, the court would give effect to that intention and not hold that a

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 landlord and tenant relationship existed regardless of the fact that there were
elements such as exclusive possession and payment of rent. This was noted in the
case of Isaac v Hotel de Paris [1960] 1 WLR 239 on this point.

Circumstances which give rise to the prima facie notion that there was no intention
to create legal relations.

▪ In certain situations, exclusive possession may not necessarily mean that there is a
lease in existence. In the case of Street v Mountford, Lord Templeman outlined
two exceptions to exclusive possession. These are:

1. Service occupancy in which the right to occupy was given to the employee as it
was of material assistance to the carrying out of the duties of his employment - See
case of Glasgow Corporation v Johnstone [1965] A.C. 609 in which it was
outlined that the test was not whether it was necessary for but whether it was of
material assistance to the discharge of the employees duty. It was stated in that
case that
‘The residence must be ancillary to the duties which the servant has to
perform (Smith v Seghill Overseers) or, put in another way, the requirement
must be with a view to the more efficient performance of the servant’s duties
(Fox v Dalby)’

In these circumstances, despite the fact that there may be all the features of a
tenancy, if it was given to the employee because it was ancillary to the performance
of his duty or was of material assistance, a license was created and not a lease. It
should therefore not be a fringe benefit or merely given to the employee as an
inducement to pep up the employee to do his work better, in which case it would be
viewed as a tenancy.

See also the cases of:

Norris v Checksfield [1991] 1 WLR 1241;

Hughes v Greenwich London Borough Council [1993] 4 All E.R. 577 and
contrast with Surrey County Council v Lamond [1999] 1 E.G.L.R 32

2. Where exclusive possession for a specified period is given as an act of generosity,

friendship or charity, the courts will not enforce it as a landlord and tenant
relationship as the parties did not manifest an intention to enter into such a
relationship.
See the case of Gray v Taylor 1998] 1 WLR 093, in which occupation of an
almshouse did not indicate the existence of a lease. See also the case of Edward v
Brathwaite (1978) 32 W.I.R. 85.

An agreement for a lease is as good as a lease- The principle in Walsh v Lonsdale

This is the landmark case in property law that recognizes the existence of equitable

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 lease. It outlines the principle that an agreement for a lease is as good as a lease.
Facts
• A 7 year lease was granted by Lonsdale to Walsh over a mill;
• The lease agreement contained a clause allowing rent to be paid up front for 1 year
upon the demand of Lonsdale;
• The lease was not granted by deed, which was and still is a formal requirement of
the creation of leases with duration exceeding 3 years;
• Londsale (the landlord/lessor) demanded a year’s rent upfront. This was not paid
and so under the now abolished remedy of distress, Lonsdale seized property
belonging to Walsh to enable the recovery of rent advance.
Issue
• Could Walsh stop Lonsdale from demanding the year’s rent and the seizing of his
property as the lease was not formally executed?
Decision
• No
Reasoning
• The doctrine of Walsh v Lonsdale (1882) was created, allowing equity to regard as
done that which ought to be done, or more simply, creating an equitable equivalent
of a formally defective but otherwise legal lease.
Held
• Equity, as embodied in the maxim ‘equity regards as done what ought to be done’,
required that the lease should take effect on the terms originally intended. ‘He
[Walsh] holds, therefore, under the same terms in equity as if a lease had been
granted. . He cannot complain of the exercise by the landlord of the same rights as
the landlord would have had if a lease had been granted.’ This was: ‘a case in which
both parties admit that relief is capable of being given by specific performance.’

See also the case of Metcalfe & Edghill (1963) 5 W.I.R. 422

Note however that the view that an agreement for a lease is as good as a lease depends on
the availability of specific performance for enforcement of the agreement. Additionally, the
agreement for a lease is different from a lease itself when a bona fide purchaser without
notice gets the actual legal estate for valuable consideration without notice of the equitable
lease.

Essential Readings:
1. Sampson Owusu- Commonwealth Caribbean Land Law, First Edition,2007-
Chapter 12- Lease and Other Relationships and Chapter 6- Nature of
Equitable Interests- Pages 158-166
2. Gilbert Kodilyne- Commonwealth Caribbean Property Law, 2000- Chapter
2- Creation of Leases