Week 2- Leases

The law of landlord and tenant governs the relationship between lessor and lessee (otherwise called
‘landlord’ and ‘tenant’ respectively.

This defines the rights and obligations of the parties to leases and tenancies and lays down the
formalities for the creation and the termination of the lessor/ lessee relationship

“A lease or tenancy is a contractually binding agreement not referable to any other

relationship between the parties, by which one person gives to another the right to exclusive
occupation of the land for a fixed or renewable period or periods of time in return for
periodic payment of money.” - per Blackburn J, in London Borough of Islington v Green and
anor [2004] EWCA Civ. 1654.

A tenant can seek damages and bring action for possession of the property.

Leases can be reversionary or future- taking effect from a later date fixed for commencement.

the doctrine of interesse termini- an interest in the term (future interest) – unable to maintain
action for trespass as possession in necessary in order to maintain actions- a lessee’s right of entry
into a leased property. It is also the lessee’s interest in real property before taking possession. The
doctrine established that the lessee acquired no estate in the land until he actually entered into
possession. Deals with:

- Lease commencement- in the context of leases; interesse termini’ is concerned with

determining when a lease officially begins.
- Fixed terms- when a lease specifies a fixed term, the doctrine helps establish when that
term begins, which is crucial for calculating when the lease will end.
- Holding over- when a tenant remains in possession of the property beyond the
expiration of the lease term without a formal extension or renewal, the doctrine of
interesse termini can come into play in determining the status of the tenancy during the
holdover period.
- Termination- this doctrine can also be relevant when determining the precise date on
which a lease terminates. It helps establish when the leasehold interest ends, which can
have legal implications for both the landlord and tenant.

Characteristics of Leases:
- The right to exclusive possession must be given
- The duration of the lease must be certain
- Presence of a grantor/lessor/landlord.
- Presence of a grantee/lessee/tenant.
- Term granted is less than term held by grantor/lessor/landlord.
- Interest in land created and held by grantee/lessee/tenant
- Grantor usually reserves right to collect rent.
- Grantor retains right to regain possession (reversion).
- Subject matter must be land or incorporeal hereditament
What is exclusive possession?
-This means that the tenant must be given the right to exclude all other persons from the
land, including the landlord. However, the fact that a person ahs exclusive possession of land
does not necessarily make him a tenant. He may only be a licensee, having a personal
privilege to occupy and no interest in the land. The most important distinctions between a
lease and license are:

- a lessee, holding a legal lease, has an interest in land that is binding on the whole
world. A licensee has a mere personal right that binds only licensor and licensee

-a lessee, but not a licensee may maintain an action in trespass against any person
who interferes with his right to possession

- a lessee may assign his lease, whereas a licensee has no proprietary interest
capable of assignment and

-a lessee, not a licensee, enjoys the protection of the Rent Restriction Act

Distinguishing between leases and licenses

- There is a strict method of determining whether there is a lease or a license
o where 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 if three requirements:
o Exclusive possession
o Fixed or periodic terms
o Rental income
- Are present, there will be a tenancy, unless there are exceptional circumstances that point to
a license.
- In Trinidad this is different where cases look at the intention of the parties as per Ramdeen v
Hansraj
- Examples of intention where a license not a lease was created are:
 where a person is given exclusive possession of premises as an ‘act of
friendship or generosity’ or by way of family arrangement;
 where services, such as regular cleaning and meals, are provided by the
owner of the property, which require the owner to have unrestricted access
to the premises;
 where an employee occupies premises belonging to his employer in order
that he can carry out his duties more effectively (called a ‘service
occupancy’);
 where the physical situation of the premises indicates that only a licence
was intended – for example, a stall in a market13 or a kiosk in a theatre
foyer.
Certainty of duration
The general rule is that a lease must have a certain beginning and a certain ending.

o The requirement will be also satisfied where a periodic tenancy (weeky, monthly or
yearly tenancy) is granted, since although, in the absence of notice to quit by either
party, the tenancy may continue indefinitely.
Types of Tenancy
Lease for a fixed period
- The lease may be granted for any fixed period, however short or long
provided that there is a certain beginning and a certain ending within the
principles previously described.
- A lease for a fixed period terminates automatically when the period expires
- A lease for a fixed term is a proprietary interest that, on the death of the
tenant, passes under his will or intestacy. Under a landlord’s reversion, a
fixed term lease is capable of passing under his will or intestacy.

Periodic Tenancy
- Weekly, monthly, quarterly and yearly tenancies are the commonest
example of periodic tenancies. They continue indefinitely until terminated by
a proper notice to quit by the landlord or tenant.

CREATION OF A LEASE
A lease may be created by:

i) Express Grant/Demise – Where created for periods in excess of the formal legislative requirement
(in most jurisdictions 3 years) it must be done by deed and where not formally required, it can be
done in writing by lease agreement.

ii) By Implication – There are certain circumstances from which a lease be implied having regard to
the acts of the parties. Examples of these can be found in circumstances where the parties have not
complied with the formal requirements for the creation of a lease.

Dougadeen v Ramsamooj & Ors (1959) 1 WIR 293

ii) Written agreement/contract

iv) Oral agreement

v) By Statute – In some jurisdictions the legislation has stepped in, in some cases to extend/create a
lease even where one of the parties involved does not wish such a relationship to be
extended/created. See relevant Rent Restriction Statutes.

vi) By attornment- Tenancy may be created where a tenant acknowledges and accepts a third party,
who has newly acquired title as his new landlord.

vii) By Estoppel – A lessor is estopped from repudiating a tenancy he has granted whether or not he
was entitled to grant such tenancy. A lessee is estopped from denying the title of the lessor by whom
he was let into possession whether or not he is aware of any defect in the lessor’s title.

DISTINCTION BETWEEN A LEASE AND A LICENCE

A licence may be loosely defined as the permission of a landowner to enter onto a piece of land for a
given purpose, without which the entry would be a trespass.

There are different kinds of licenses. Two most important are:

 (a) Bare Licence- This is a personal permission or consent granted without consideration to
enter land, for example postman etc.

(b) Contractual Licence-This arises from permission to use or occupy land derived from an
express or implied contract. It is founded on valuable consideration paid by the licencee.

Many factual similarities may exist between a lease and a licence with respect to use and occupation.
There is, however, a clear legal distinction between that which must be made for the following
reasons:

ii) A licence does not create an interest in land.

iii) A licensee is not protected by Rent Restriction legislation; (NB Exception provided
for in Rent Restriction – Serviced Premises Act CH. 59:52, [Trinidad and Tobago]).

iv) The interest of a licensee is not adverse to that of his licensor, but, a tenant may
acquire title by adverse possession.

v) A licence cannot be assigned – it is a personal contract between the parties

THE EFFECT OF NON-COMPLIANCE WITH FORMALITIES FOR A LEASE AT LAW

-At law:

- void at law

-In equity

-an agreement for a lease

The agreement for a lease must be:

- in writing

- bear the signature of Party to be charged

Three Main Instances Where The Court Will Not Grant Specific Performance:

- Where the party seeking to enforce the written agreement has breached some
covenant or clause contained therein

- Where the enforcement of the agreement by Specific Performance in favour of a

sub lessee would terminate the original lease under which his landlord (the sub-
lessor) held.

- Where there is a bona fide purchaser of the legal interest in the property for value
without notice of the lease.

Key Terms:

- Covenant
 o This is a term in a lease which constitutes an agreement between
the landlord and to do or to refrain from doing something. The
tenant covenants or agrees to pay rent, and the landlord covenants
to give him quiet enjoyment of the premises
o These promises are enforceable in court
- Reversion
o This is the future right to property which occurs when a property
owner makes an effective transfer of property to another, for a
period shorter than which he has. For example, if Sara, an owner in
fee simple, leases a piece of property to Shane for twenty years,
Shane has the use of the property for the twenty years. Upon the
expiration of this period, the property reverts, or goes back to Sarah
- Fixed Term Lease
o This is a lease of the premises which allows the tenant the right to
occupy it for a fixed period of time as agreed between the landlord
and the tenant. It ends automatically once that period expires.
Neither party can end the lease before that period unless the other
party has breached some term of their agreement
- Periodic Tenancy
o This comes with a prefixed term which continues indefinitely at the
end of each term until it is determined by either party. For example,
a monthly tenancy continues from month to month and a weekly
tenancy is enjoyed from week to week, until it is ended by proper
notice, and so is a yearly or quarterly tenancy, which endures from
year to year or quarter to quarter until either party terminates.
Question 8

In the context of housing provided by employers, the terms "service occupancy" and "service
tenancy" refer to different arrangements that determine the legal status and rights of individuals
living in employer-provided accommodation. Here are the key differences between a service
occupancy and a service tenancy:

1. Service Occupancy:

• Nature of Occupation: A service occupancy is a housing arrangement where

an employer provides accommodation to an employee as a condition or requirement
of their employment. The employee occupies the property primarily for the purpose
of performing their job duties.

• Control and Possession: In a service occupancy, the employer typically

retains control and possession of the property, even though the employee may live
there. The employee's right to occupy the accommodation is directly tied to their
employment status.

• Termination: Service occupants often do not have the same legal protections
and security of tenure as traditional tenants. They may be required to vacate the
property upon the termination of their employment or under other specific
circumstances outlined in their employment contract.

• Tenant Rights: Service occupants may not have the full range of tenant rights
and protections that traditional tenants enjoy. They may not be covered by standard
tenant-landlord laws and regulations.

2. Service Tenancy:

• Nature of Occupation: A service tenancy is a housing arrangement where an

employer provides accommodation to an employee, but the employee has a
separate and independent tenancy agreement that is not directly tied to their
employment. The employee is treated as a tenant in their own right.

• Control and Possession: In a service tenancy, the employee enjoys exclusive

possession and control of the property, similar to a regular tenant. The housing
arrangement is not contingent on their employment status.

• Termination: Service tenants have greater security of tenure and typically

enjoy the same legal protections as other tenants. They can only be evicted under
the terms and conditions specified in their tenancy agreement and according to
landlord-tenant laws.

• Tenant Rights: Service tenants have the same tenant rights and protections
as other tenants in the jurisdiction. These rights may include protection from
unlawful eviction, rent control, and other tenant-related regulations.

In summary, the main difference between a service occupancy and a service tenancy lies in the
nature of the occupation and the level of control, possession, and legal protections afforded to the
occupant. Service occupants have a closer connection to their employment, while service tenants
have more independent and traditional tenant-like arrangements. The specific rules governing these
arrangements may vary by jurisdiction, so it's essential to consult local laws and legal advice when
dealing with such housing arrangements.
Summaries:
Norris v Checksfield
Case Facts:

In 1988 the defendant worked for the plaintiff as a semi skilled mechanic. In 1989, he was
invited to resume employment. He started that same year. Further, the defendant was
asked by the plaintiff if he would like to reside at the bungalow which was occupied by
another employee previously. The defendant was allowed to occupy the premises based on
two terms, of which the second term was salient to the case. That was that the defendant
would be able to drive coaches for the plaintiff’s business and would apply for a PSV license
for this purpose. The plaintiff thought that this arrangement would be beneficial as it would
make the defendant readily available for any such emergencies/ urgent matters.

It was on that condition that the occupancy of the bungalow was granted to the defendant.
The defendant signed a document confirming the terms of his occupation which stated that

‘it is a condition of your employment that you shall occupy the premises or such
other alternative property as the employer may provide and that on termination of
your employment your license to occupy such property shall cease forthwith’

The defendant also paid a sum of 5 pounds per week deducted from his salary in relation to
his occupation.

In October of 1989, the defendant was given a statement of the main particulars of his
employment, which showed that he was to be employed as a semi- skilled mechanic, his
normal hours of work were eight to five, Monday to Friday and Saturday if agreed. He was to
give/ receive one week’s notice for termination of his employment but could be terminated
instantly for misconduct

He did not tell the plaintiff that he was disqualified from driving. The plaintiff learned of the
fact from the police and, coupled with the defendant’s work performance, he informed the
defendant of his dismissal. In December 1989, the plaintiff told the defendant to vacate the
bungalow. Proceedings for possession were instituted.

The judge granted the plaintiff possession, the defendant appealed, contending that an
employee who was allowed to occupy the premises belonging to his employer when the
occupation was not beneficial to his employment at the time he was allowed into
occupation was a TENANT who was PROTECTED AS SUCH rather than a mere licensee and
that service occupancy was a periodic license in respect of giving notice

Issues:

1. Whether the defendant was a tenant or licensee

2. Whether he was entitled to notice

Issue 1: Whether the defendant was a tenant or licensee

There was ambiguity as to whether the agreement between the defendant and the plaintiff
was a lease or a tenancy. In determining these issues, it was looked at whether the
occupation was beneficial or compulsory.

There were tests that were applied to determine whether the defendant was
a tenant or a licensee:

- -It was stated that an employee can be a licensee, although his

occupation of the premises is not necessary for the purpose of the
employment, if he is genuinely required to occupy the premises for
the better performance of the duties or if it was simply beneficial to
him,

- One must look at whether the occupation of the premises was of

material assistance to his employment
 o Therefore, one should look at the situation which existed at
the time the license was entered into. The defendant’s
occupation of the premises was irrelevant to the defendant’s
employment as a semi- skilled mechanic. In the employment,
he was in fact not required to assist with emergencies and he
could perform the work equally as well from the lodgings at
which he was previously living.

o There should be a sufficient factual nexus between the

commencement of the occupation of the premises and the
employment for which would benefit from that occupation

- It was concluded that this was therefore a case where it was proper to
regard the defendant as going into occupation as a license in order to
better perform his duties when he became a coach driver.

-The occupation would be sufficient if the employee’s occupation was of

material assistance to his employment. The occupation need not be
necessary for his employment.

-further it was stated that it would not suffice in tenancy if the occupation
was merely a fringe benefit or an inducement to encourage the employee to
work better

- Unless the occupation was not a fringe benefit, the fact the fact that the
employee had exclusive possession and paid rent would establish a service
tenancy ie this was a license
Issue 2: Whether he was entitled to notice.

The second issue looked at protection under the Eviction Act 1977 . No notice was given to
the defendant. The case looked at notice with regards to a periodic licence. It was further
contended that the defendant had not occupied the bungalow under a periodic license,
therefore he was not entitled to such.

Although there is no one definition for a periodic license, it was looked at in relation to a
‘fixed term tenancy’ which is defined as any tenancy other than a periodic tenancy. The facts
were compared to case Lance v Chantler where the court held that a tenancy for the
duration of the war did not create a leasehold interest because it was impossible to stay at
the outset how long the tenancy would last and therefore if was not of a sufficiently certain
duration. Therefore in this situation, it would be impossible to determine the date at which
the defendant’s employment would cease.

The case looked at service occupancies as well, and looked at Ivory v Palmer. The case stated
that a contractual license which was ancillary to a contract of employment came to an end
when the contract of employment was terminated even though the termination was
wrongful. The case was different to the situation because there was no ancillary contract.
The duration of the rent period would aid to give a time frame for which the termination
would be sufficient.

In looking at further case law, the courts determined that if the employment could be ended
summarily or on a week’s notice, so too could the tenancy.

Therefore the appeal was dismissed.

It was confirmed that any tenancy which was not a periodic tenancy was a fixed term
tenancy, although the tenancy for the duration of employment was not of that description.

However, it was determined that the facts pointed to a license therefore the plaintiff was not
required to give the defendant notice to terminate his license since it came to an end when
his employment was terminated.
Summaries:
Dougadeen v Ramsamsooj and others
-Creation of leases by implication

- contractual licenses where the interest of a licensee is not adverse to that of his licensor,
but a tenant may acquire a title by adverse possession

Case Facts:
Ivy Dougadeen was a tenant of the chattel house paying 12$ rent per month to Ramsamooj.
Dougadeen occupied the premises with her son and daughter. Her son did a welding
business in part of the premises and she and her daughter ran a parlour on another part.

Doug. Stated that some time in 1954, Samaroo approached her to obtain some
accommodation on the premises for 4/5 months for his own parlour, while he was awaiting
completion of his premises elsewhere. She agreed and she and her daughter left the
premises, and Samaroo took occupation. Samaroo paid Ramsamooj in Doug’s name, and
Ramsamooj had no knowledge of the arrangement.

In 1955, the months had expired, but Samaroo did not return the property until 1957, after
which he disposed of the business to Sonnylal. In May 1975, Doug visited Sonnylal and he
informed her that he was running the parlour. He left his business, and the following day,
Doug put a lock on the parlour.

All three respondents broke the lock and entered the premises. Doug sued the respondants
claiming damages for trespass or dispossession. It was held that the agreement between
Doug and Samaroo was a tenancy agreement, and could have only been determined by
proper notice or by lawful re entry and resumption of possession and that there had been
no notice, and mere placing of a lock upon the premises did not constitute intention.

Discussion
- The determination of whether damages could be awarded for
breaking and entering hinges on the relationship between the
appeallant and the respondent Samaroo and the legal status of which
Samaroo acquired the agreement (the lease creation)
o There were three possibilities:
 Samaroo became the assignee by operation of law
 Samaroo became the sub tenant
 Samaroo became the licensee of the appeallant.
o In determining whether an agreement creates between the
parties the relationship of landlord and tenant, or that of a
licensor and licensee, the case Booker v Palmer was used.
o It was determined however, one cannot simply turn a lease
into a license merely by describing it as such, nor will the use
of words appropriate to a lease prevent the agreement from
confiring a license.
o In the absence of formal documentation, intention can only be
inferred from surrounding circumstances.
o According to Doug’s evidence, she intended that the
respondent Samaroo should occupy for only 4/5 months.
However, after that period, she made no significant attempt to
do so. (She had indicated that she wanted to close her parlour
previously)
o There was a month to month agreement
o The rent was paid in her name, reserving the right to recover
the premises when she wanted it (but not at a month’s notice)
(for reversion)
- Through these items, it was concluded that the verbal agreement was
not a license, and that it was a tenancy agreement which was never
formally terminated. Therefore, when the respondent Samaroo left
the premises and gave it to Sonnylal, it was indeed open to Doug to
determine her agreement with Samaroo. She could have done this by
 way of notice or by re entering the premises and re taking possession.
She did not do so and placing a lock was not sufficient.
- There was no grounds for damages