Aslan V. Murphy (No.1) [1990] 1 Wlr 766 and Aslan V. Murphy (No.1) [1990] 1 Wlr 766 Case Study

Topics: Lease, Renting, Leasehold estate Pages: 8 (2585 words) Published: April 28, 2013
Case Name and Citation: Aslan v. Murphy (No.1) [1990] 1 WLR 766 Court: Court of Appeal
Judges: Lord Donaldson of Lymington M.R. , Butler-Sloss and Stuart-Smith L.JJ. Decision of Lower Courts: The decision was favour of the defendant (Murphy). It was held that the occupant is a tenant, not a licensee. Decision: Appeal Allowed,

The case concerned land with leases and licences
Case Name and Citation: Mikeover v. Brady [1990) 59 P. & C.R. 218 Court: Court of Appeal
Judges: Slade L.J. and Lincoln J.
Decision of Lower Courts: The decision was in favour of the Claimant (Mikeover). It was held that the occupant is a licensee, not a tenant. Decision: Upheld in Court of Appeal
The case concerned land with leases and licences
Importance of the Cases (1500 words maximum)
Under the Property Law Act, licences and leases are legal estates. The landmark case of Street v Mountford, established the test for distinguishing lease, tenancy from licence. House of Lords held that intention to create legal relations gives right to exclusive possessions of the property. In Aslan v. Murphy(No.1) and Duke v. Wynne, both claimants argued that the defendants were licensees and were seeking possession of the premises. In Aslan v. Murphy(No.2), claimant further argued that the local authority had made a closing order, and was successful in obtaining the property. An agreement described as a licence does not prevent it from being a lease, provided that 3 characteristics are present. However, only the intention to grant exclusive possession is relevant. Furthermore, in Mikeover v. Brady, there were arguments from both parties claiming whether the agreement was that of a licensee or a tenancy.

It is not always clear whether an agreement is a licence or a lease. In Street v. Mountford, it was seen that many circumstances such as no exclusive possession or legal relations would mean the agreement is a licence. The distinction between the two is fundamental due to statutory rights given to tenants in terms of “enforceability of a lease against third parties”, e.g. ‘leases’ might have a different meaning in context of statue.

There have been many debates on whether the licence agreement “granted exclusive possession created a tenancy and was thus a lease and not a licence despite the landlord having no proprietary interest in the property.” As illustrated in Bruton, where HL adopted a narrow approach to the, ‘understanding of the concept of exclusive possession’.

In Mikeover v Brady, both defendants do not have right to exclusive control and as held by the court the agreement is a licensee. However, an exception to this can be illustrated in Antoniades v Viller where occupants choosing to use a double bed instead of two singles beds. Clearly implying intention to occupy the rooms jointly and illustrating they hold an exclusive possession right together due to joint and equal interest.

Despite the fact that Mikeover v Brady was based on the same precedent, the construing of agreement implied that certain wording in the agreement reserved right to the landlord to share the accommodation with other occupants. This could be done by introducing other persons to share the flat with them. This provision would therefore eliminate the possibility to “sustain a claim to be tenants”.

In Aslan v Murphy(No. 1), the defendant exclusively occupied a basement room on agreement that it was merely a licence and could be occupied by other licensees. The owner had also retained the keys. At first instance, the agreement was held to be a licence. This was appealed and was later held that occupier was in-fact granted exclusive possession and was therefore a tenant. In contrast, the clause in Security v. Vaughan clearly (in signed agreement) stated that maximum of three other occupants could share the property demonstrated that it was a realistic...
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