Term
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Definition
| A lease is created when one person with an estate (the landlor) grants the temporary right for another person (the tenant) to use and enjoy that land exclusively. |
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Term
| Does the tenant have the right to exclude the landlord & all other people from the land? |
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Definition
| YES - the tenant has the right to exclude the tenant and all other people from the land |
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Term
| What is it essential for you to know about leases for the exam? |
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Definition
1) Basic requirements to create a lease
2) You must be able to distinguish a grant of a lease from a licence
3) Know the formalities to grant a legal lease
4) Know the formalities to grant an equitable lease |
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Term
| What is the name of a person who grants a lease? |
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Definition
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Term
| The person who grants a lease... what is their estate called? |
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Definition
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Term
| What is the name of the person to whom a lease is granted? |
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Definition
| Lessee (& leaseholder) / Tenant |
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Term
| By what method can a lease-holder create a smaller estate? |
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Definition
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Term
| What other name is there for a lease? |
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Definition
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Term
| What are the two fundamental things that have to be in place for a lease to exist? |
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Definition
1) Certainty of term
2) Exclusive posession
NOTE - there are lots of other things that have to be in place to create a legal or equitable lease. Furthermore, these two things (certainty of term & exclusive posession) could exist w.r.t something other than a lease. |
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Term
| A lease has to have 'certainty of term'. What are the two ways in which 'certainty of term' can be shown? |
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Definition
1) Fixed term
2) Periodic term |
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Term
| What does it mean to have a 'fixed term' lease? |
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Definition
| A fixed term lease exists where the MAXIMUM duration of the arrangement (lease) is known FROM THE OUTSET |
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Term
| Once a fixed term lease is created, can either party unilateraly bring the lease to an end? |
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Definition
| NO - unless there is a break clause present in the lease enabling them to do so |
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Term
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Definition
A FIXED TERM LEASE NEEDS TO BE FOR A FIXED AMOUNT OF TIME
A LEASE 'FOR THE DURATION OF THE WAR' = INVALID |
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Term
| Prudential Assurance Co Ltd v London Residuary Body [1992] |
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Definition
A FIXED TERM LEASE NEEDS TO BE FOR A FIXED AMOUNT OF TIME, OTHERWISE IT WILL BE INVALID
IF THE INTENDED LEASE IS INVALID, THE COURT MAY IMPLY A PERIODIC LEASE
Council leased land to a person, lease was to continue 'until the land was required by the council for building roads'
A new council took over, did not have the power to build roads, but wanted the leased land back
so they served notice on the leasee / leaseholder
HELD - there was no fixed term lease, as the term was uncertain. However, the court implied a periodic term lease. |
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Term
| Mexfield Housing Cooperative v Berrisford [2010] |
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Definition
FIXED TERM LEASE NEEDS TO HAVE A FIXED TERM, OTHERWISE IT WILL BE VOID FOR UNCERTAINTY. HOWEVER, COURTS ARE WILLING TO IMPLY A PERIODIC TERM LEASE
A Housing association had attempted to grant a tenancy which could be ended by one of a number of triggering events (e.g. tenant going in to arrears).
HELD - the intended lease was void for uncertainty, but court ruled that an implied monthly periodic tenancy existed. |
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Term
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Definition
IN ORDER FOR THE COURTS TO IMPLY A PERIODIC LEASE, THERE HAS TO BE AN INTENTION TO CREATE A TENANCY.
C entered into negotiations w.r.t leasing his property out to the D
while this was happening, D took posession of the property.
D paid one quater's rent in advance.
While negotiations continued, D paid 2 more quarter's rent in advance
Negotiations then broke down
C gave D 2 weeks notice before eviction
HELD - IN ORDER FOR THE COURTS TO IMPLY A PERIODIC LEASE, THE PARTIES HAVE TO HAVE THE INTENTION TO CREATE A TENANCY. |
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Term
| In what ways can a periodic term leasehold be created? |
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Definition
1) Expressly - written into the agreement
2) Impliedly - where nothing is set out in writing, but the certain term arises simply by payment and acceptance of rent on a periodic basis. Each period is certain because each part has the power to determine at the end of each period. |
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Term
| How is the 'term' of a periodic tenancy calculated? |
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Definition
| The term of the periodic tenancy depends upon the period by reference to which rent is calculated, NOT BY THE INTERVALS AT WHICH RENT IS PAYABLE. e.g. If the tenant agrees to pay £10,000 a year, and the tenant pays monthly, the term = yearly. |
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Term
| Ladies Hosiery and Underwear v Parker [1930] |
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Definition
THE TERM OF A PERIODIC TENANCY = THE PERIOD BY WHICH THE RENT IS CALCULATED
Ds signed a lease which stated that they would pay £2 per week, and that they would keep the lease for three years
20 years later, no new lease had been signed, Ds still had posession, and still paid £2 per week
Ds claimed the period of the lease = 1yr
HELD - the original lease calculated the rent on a weekly basis, therefore, the term of the lease = 1 week.
(NOTE: if the lease had said £400 per year, payable at £2 per week, the term of the lease would have = 1yr... also, if the lease had said £2 per week, payable each month, the term of the lease would have = 1 week (as that's the way the rent was calculated) |
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Term
| What are the 3 types of tenancy which do not appear to have certainty of term? |
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Definition
Tenancy at Will
Tenancy at Suffrage
Tenancy for life |
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Term
| What is a tenancy at will? |
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Definition
(usually occurs where tenant pays no rent & where there is no lease)
It is where the tenant occupies the land with the landlord's permission, on the understanding that either party may terminate the tenancy at any time. If this type of tenant starts to pay rent by reference to a period, a common law preiodic tenancy is created. |
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Term
| What is a Tenancy at Suffrage? |
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Definition
| This arises where a tenant remains in posession without the consent of the landlord after the lease has come to an end (therefore = trespass). If the tenant at suffrage begins to pay rent by reference to a period, a common law periodic tenancy is created. |
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Term
| What is a tenancy for life? |
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Definition
| A tenancy granted for life is automatically converted into a tenancy for a fixed term of 90 years... therefore = fixed term. |
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Term
| An essential characteristic of a lease = 'exclusive posession'. What does this mean? |
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Definition
| Exclusive posession means the right to exclude all others from the property, including the landlord. HOWEVER, it is not that simple... the courts have had to extensively consider what it means to have exclusive posession... discussed in a later chapter. |
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Term
| The formalities required to create a legal lease will depend on...? |
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Definition
| The length of term of the lease |
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Term
| The formalities required to create a legal lease will depend on the length of term of the lease. What are the different 'length of term' categories? |
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Definition
1) Period exceeding 7 years
2) Period exceeding 3 years, but less than 7 years
3) Period for less than 3 years |
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Term
| If you want to create a LEGAL lease for a period exceeding 7 years, what must you do? |
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Definition
1) It must be created by deed (s52 LPA, & s1 LP(MP)A 1989)
2) Register it (NOTE = different for leasehold's made on registered/unregistered land) |
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Term
| If you want to create a LEGAL lease on registered land, for a period exceeding 7 years, what must you do? |
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Definition
1) Create the lease by deed
2) Register - leasehold must be substantively registered in accordance with s27(2)(b)(i)LRA 2002 |
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Term
| WHAT ARE THE TWO KEY SECTIONS OF LRA 2002 THAT YOU NEED TO KNOW W.R.T REGISTERING 'TERMS OF YEARS ABSOLUTE' FOR PERIODS LONGER THAN 7 YEARS? |
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Definition
1) w.r.t registered land... s27(2)(b)(i) LRA 2002
2) w.r.t unregistered land... s4(1)(c) LRA 2002 |
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Term
| If you want to create a LEGAL lease on unregistered land, for a period exceeding 7 years, what must you do? |
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Definition
1) Create the lease by deed
2) Register - leasehold must be registered in accordance with s4(1)(c) LRA 2002 |
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Term
| If you create a lease for longer than 7 years on unregistered land, you must register the lease. What happens with the unregistered freehold estate which carries the lease? |
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Definition
the creation of a 7+ year lease on unregistered land will NOT TRIGGER THE NEED TO REGISTER THE FEREEHOLD ESTATE OUT OF WHICH IT HAS BEEN CREATED.
A REGISTERED LEASE CAN EXIST OVER AN UNREGISTERED FREEHOLD ESTATE. |
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Term
| If a lease has been validly created by deed, AND it has been correctly registered... what will happen w.r.t any new purchasers of the freehold? |
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Definition
| Any purchaser of the freehold (over which the lease exists) WILL BE BOUND BY THE LEASE |
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Term
| What are the formal requirements for the creation of a lease which is more than 3 years, but less than 7? |
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Definition
1) Must be created by deed
... A LEASE FOR LESS THAN 7 YEARS DOES NOT HAVE TO BE SUBSTANTIVELY REGISTERED |
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Term
| A lease for less than 7 years does not have to be substantively registered. However, is there some kind of 'registration' thing that can be done to them to protect them? |
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Definition
| YES - by way of s32 LRA 2002, leases for more than 3yrs & less than 7yrs can be registered. However, rather than being registered in their own right, these leases can be protected by entry of a notice in the charges register of the freehold title. |
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Term
| Would a lease for not more than 7 years be mentioned on the register? |
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Definition
| NO - these leases OVERRIDE the register... examples of an 'unregistered interest which override registered dispositions and can therefore bind a new estate owner' (discussed in more detail later) |
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Term
| Certain short leases have no formal requirements, though they will still exist as legal leases. What are the types of arrangement that fall within this category? |
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Definition
1) Short fixed term leases (with a maximum term of 3yrs)
2) Periodic tenancies (where each period of the tenancy is for 3 years or less - which is likely to be the case) |
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Term
| Which part of which act specifies that there are no formal requirements for the creation of leases with a term of less than 3 years? |
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Definition
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Term
| What are the formal requirements for the creation of a lease with a term of less than 3 years? |
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Definition
| There are none - s54(2) LPA 1925 |
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Term
| At any first registration / registered disposition of freehold over which a short-lease (less than 3yrs) exists, what will happen to the lease? |
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Definition
| The lease will become an overriding interest. |
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Term
| What are the possible outcomes if someone fails to use a deed to create a lease of more than 3 years... or use a deed/register a lease of more than 7 years? |
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Definition
1)Possible periodic tenancy
2) Possible Equitable lease |
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Term
| Are periodic tenancies an equitable interest? |
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Definition
| NO - they are a legal interest |
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Term
| Are periodic tenancies a legal interest? |
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Definition
| YES - they come from the common law |
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Term
| If someone fails to follow the formalities for creating a 3-7yr or 7+yr lease, the courts may recognise a legal periodic tenancy... when will this happen? |
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Definition
| If the tenant enters into posession and pays rent by reference to a period which is less than 3yrs (s54(2) no formalities for creating a lease for less than 3 years) |
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Term
| Why is s54(2) LPA KEY KEY KEYYYY??? (w.r.t failure to follow formalities) |
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Definition
Because, it says that a periodic tenancy for less than 3 years = no formalities...
Therefore if you attempt to create a 20year lease, but you fail w.r.t formalities... but rent is calculated on an annual basis, the common law will recognise a legal lease for you, as you will have a periodic tenancy of less than 3 years) (NOTE: Javad v Aqil) |
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Term
| if you attempt to create a 20year lease, but you fail w.r.t formalities... but rent is calculated on an annual basis, what will happen? |
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Definition
| s54(2) LPA 1925 - leases with a term of less than 3 years = exempt from any formalities... therefore, common law will imply a periodic tenancy (NOTE: Javad v Aqil) |
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Term
| Where formalities have failed, but the periodic term of a lease = less than 3 years, will the courts ALWAYS imply a periodic lease? |
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Definition
| NO - Javad v Aqil [1991] - must be intention to create a tenance |
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Term
| If the parties have tried to create a legal lease, but have failed because they have not complied with the formal requirements for a leagl lease... under what circumstances will equity step in and recognise an equitable lease? |
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Definition
| Where there exists a document to create a valid lease... A contract which complies with the requirements in s2 LP(MP)A 1989 |
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Term
| What is a transfer of a legal lease called? |
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Definition
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Term
| What are the formalities for transferring a legal lease? |
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Definition
1) Must be completed by deed (regardless of the duration of the lease itself, or how long there is still to run (deed must = s1LP(MP)A)
2) If the lease has already been registered, the assignment must also be registered in accordance with s27(2)(a) LRA 2002
3) If the lease has not already been registered (which will be the case for pre-2002 leases), but the lease has more than 7 years to run at the date of the assignment, then the assignment gives rise to a compulsory first registration of the leasehold estate (s4(1)(a) and s4(2)(b) LRA [2002]) |
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Term
| What are the formalities for the assignment of a lease which has already been registered? |
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Definition
1) Deed - s1 LP(MP)A
2) Registration s27(2)(A) LRA 2002 |
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Term
| What are the formalities for the assignment of a lease which has not already been registered & has less than 7 years to run on it? |
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Definition
| 1) Deed - s1 LP(MP)A 1989 |
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Term
| What are the formalities for the assignment of a lease which has not already been registered & has more than 7 years to run on it? |
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Definition
1) Deed - s1 LP(MP)A
2) Registration - s4(1)(a) & s4(2)(b) LRA 2002 |
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Term
| Under what circumstances would you find a lease which has not already been registered, but which still has more than 7 years left to run on it? |
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Definition
| Where the lease was created before 2002 & before the introduction of the LRA 2002. |
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Term
| How is a contract TRANSFER of a legal lease done? |
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Definition
| It must comply with s2LP(MP)A - after this has been done, the transferee (new leaseholder/tenant) will only hold the equitable interest. |
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Term
| What type of interest does an implied periodic lease create? |
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Definition
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Term
| If a lease is transferred by a document which is compliant with s2LP(MP)A, what type of interest will the new lease holder have? |
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Definition
| Equitable - contract ONLY transfers equitable interest |
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Term
| What are the three ways in which an equitable lease can arise? |
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Definition
1) If the parties fail to comply with the formalities for creating a legal lease, but manage to produce a contract which complies with s2LP(MP)A (e.g. No deed, or no registration where required)
2) If there has been a mere agreement to create a lease in the future - in order for this mere agreement to create an equitable lease, it must comply with s2LP(MP)A
3)If the person granting the lease only holds an equitable estate in land (A person cannot give more than he has) - in order to do this, it must comply with s53(1)(a) LPA |
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Term
| If a lease is to be created by a contract which is compliant with s2LP(MP)A, what are the basic things it MUST include (at the least)? |
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Definition
1) The parties
2) The premises
3) The rent
4) The duration of the lease
5) The date of commencement (for contingent lease, the trigger event upon which the lease is to commence)
6) Any other material terms agreed by the parties |
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Term
| If you have an equitable lease on unregistered land, how can you go about protecting it against a new landlord? |
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Definition
| Where the freehold land is unregistered then the equitable leaseholder can protect his interest by registering a C(iv) entry at the Land Charges Registry (s2(4) Land Charges Act 1972) |
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Term
| If you have an equitable lease on registered land, how can you go about protecting it against a new landlord? |
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Definition
Under the LRA 2002, an equitable leaseholder can protect his lease against new landlords by ENTERING A NOTICE ON THE CHARGES REGISTER OF THE SUBSTANTIVELY REGISTERED FREEHOLD TITLE - s32 LRA 2002
The notice will either be an agreed one (s34 LRA)
Or a unilateral one (s35 LRA) |
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Term
| What are the two ways of assigning (transferring) an equitable lease? |
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Definition
1) s53(1)(c) LPA
2) Contract - s2LP(MP)A |
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Term
| Why must a lease for less than 3 years be transferred by deed? |
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Definition
| Because s54(2) ONLY provides an exception for the grant of a lease, IT DOES NOT APPLY TO ASSIGNMENTS... therefore, it is not exempt from s52(1). |
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Term
| Is it possible for an individual to hold BOTH an equitable and legal lease for a particular piece of land at the same time? |
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Definition
| YES - e.g. if the formalities for creating the lease are not complied with (deed & registration), but they produce a contract which is s2LP(MP)A compliant, then the person will have an equitable lease. If the person then moves in and begins paying rent by reference to a period, then he may also have an implied legal periodic tenancy. |
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Term
| If a person holds both an equitable and a legal lease, what happens? |
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Definition
| Where there is a conflict between equity and common law, equity prevails. (NOTE - this is not bad, because it is only where there is a conflict... |
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Term
| Which case confirms that where there is a conflict between equity and legal, equity will prevail? e.g. where a tenant holds both an equitable and legal tenancy |
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Definition
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Term
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Definition
WHERE THERE IS CONFLICT BETWEEN LAW AND EQUITY, EQUITY PREVAILS
C entered into an AGREEMENT for a 7 lease with the D
(as it was an agreement = equitable tenancy)
C then moved in and began paying rent by reference to a period
= implied legal periodic tenancy
W.r.t contract = rent payable in advance
w.r.t implied legal tenancy = rent payable in arrears
HELD - equity prevails, rent was due in advance |
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Term
| What is a HUUUGE downside (amongst other things) to having an equitable lease? |
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Definition
The existence of an equitable lease is dependent upon specific performance (e.g. court rules that landlord must let you keep the lease because you have an equitable lease). However, SP = a discretionary remedy. In deciding whether to award it, the court will consider equitable maxism, such as 'clean hand' etc...
(whereas a legal lease is enforceable regardless, courts have no discretions, the courts must enforce the terms of a legal lease) |
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