LAND LAW

Land Law

Land Law

Introduction

The purpose of this research is to expand the boundaries of our knowledge by exploring some relevant facts relating to the Land law of Lord Templeman in Street v Mountford (1985). In this paper, we will discuss the issues relating to tenancy agreement and creation of licence. A landowner, who lets an occupier into residential or commercial premises and who does not wish to grant him an estate or interest in land, may choose to use a licence arrangement or a tenancy at will. It may be that the parties are negotiating subject to contract for a lease, or it may be that the arrangement is to be a temporary one, for whatever reason. In the next section, we will conduct a detailed analysis on the issues of land law with refernce to Lord Templeman in Street v Mountford (1985).

Discussion & Analysis

Elements of Tenancy Law

The issues of tenancy have always been highlighted in law. Landlords have also desired to keep themselves away from the regulations of these statutory protections. This area is less contested today because the levels of protection given to tenants are less significant. However, the result of that contestation is that here is a developed body of case law which, while not entirely consistent, does indicate the basic elements of a tenancy. The contrast in the law is between, on the one hand, a tenancy, which creates enforceable property rights, and into which the law implies terms; and, on the other hand, a licence which, at least in theory, creates only personal rights between licensor and occupier (Stewart, 1996, pp. 24-89).

“In order to create a tenancy, the essential elements are that there must be an intention to grant to the occupier exclusive possession for a term” (Street v Mountford [1985] 1AC 809). Intention is key but we do not look to the form of the agreement, or indeed, to what the parties themselves believed they were creating. Labels used by the parties are irrelevant, so if the parties call a document a licence that in itself is meaningless. Lord Templeman in Street made the following much-loved analogy:

“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 (p. 819)

Intention is considered objectively, by which is meant for these purposes the effect in law of the agreement. One perhaps absurd effect of this objectivity is that an occupier may have a tenancy where the landlord has no title to grant such an agreement terms the agreement a licence, but nevertheless grants the occupier exclusive possession for a term. This is known as a tenancy by "estoppels" because the landlord cannot deny that they have title to grant a tenancy if they have represented in the grant that they do (Dawson, 1995, pp. 24-32).

Exclusive possession (a term that is wider than 'occupation' in that one is not necessarily required to occupy to possess ...