The Law On Leases From A Legal Concept Of

Topics: Renting, Real estate, Law Pages: 10 (2076 words) Published: March 18, 2015
The Law on Leases from a Legal Concept of “Property”

Property in the legal sense is a collection of legal rights over a “thing”. This thing is a relationship that can be described as a power relationship within “real property” concerning legal rights and interests in land. Though the legal concept of property is very much broad and covers many types of proprietary rights, which are ‘interests in land’1, this essay will focus narrowly on the leasehold estate within the concept of property as a whole. Leases, in particular, are a way to conceptualize property but this area has implications within itself that has, to an extent, redefined the landlord and tenant relationship. One ongoing implication with leases has been an issue of distinguishing between a lease and a license based upon exclusive possession, and not merely upon title (which was considered the norm).2 To argue on the grounds of the “Bruton tenancy” theory3, a person without a proprietary interest in a property may grant a tenancy. This notion of non-proprietary interest within a property is debatable by many academics and the English law. This essay will critically analyze how Bruton leases have come out from the traditional concept of leases and have altered the definition of exclusive possession within the legal notion of leasehold property. Before a discussion of what the Bruton lease is and the details of the case entail, it is important to discuss where the traditional lease was distinguished from a license and how the principle of leases has developed since Street v Mountford4. The concept of a proprietary lease has developed since Street v Mountford, a case that set out the criteria for a lease, decided by the House of Lords. The leading judgment given by Lord Templeman was a key factor in distinguishing a lease from a license. Within this case, it was stated that a contract that gave exclusive possession for a specific term in exchange for a fee of rent was defined as a lease and therefore not a license (the criteria).5 Lord Templeman made clear that where a landlord has an interest in land, the lease would be an estate in land.6 Therefore, a tenant acquiring exclusive possession in a leasehold property or in legal terms, an estate in land, is able to exercise the rights of the owner with keeping in mind the terms and conditions of the lease (contract). 7 Thus, exclusive possession is important and is a key distinction between a lease and license when determining rights and interests in the leasehold estate. A license in Lord Templeman’s language in Street was that a person holding a license does not possess exclusive possession and therefore cannot refer himself to exercise any rights of the actual owner of the property in question. Whereas in a lease like aforementioned, a lessee or a tenant would hold rights of real property by title from the landlord (or head-lessor). The real difficulty in establishing or distinguishing between a lease and a license is what Lord Templeman described as a “sham”. “My Lords the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent…Sometimes it may appear from the surrounding circumstances that there was no intention to create legal relationships.” 8 In Street, although a license was granted, the landlord had reserved the right to inspect the property whenever for the purposes of “maintenance”. Exclusive possession means that the tenant’s right under a lease has the right to exclude everyone from interfering and disrupting the quiet enjoyment of the property, including the landlord, unless specified in the terms of the agreement. In most cases, the landlords want to grant more licenses rather leases, attempting to avoid the grant of exclusive possession to the occupier (which removes the vital element of a lease).9 Property on a larger scale is a question of fact; likewise on a smaller scale exclusive possession is a question of...


Bibliography: Dixon, Martin , Modern Land Law, (8th edition, Routledge, 2012)
Gray & Gray, ‘The Idea of Property in Land’ in Bright & Dewar (eds) Land Law: Themes and Perspectives (OUP 1998)
Harwood, Michael, “Lease: are they still not really real?”, Legal Studies, 503
Lower, Michael, “The Bruton tenancy”, Conveyancer and Property Lawyer (2010)
McFarlane Ben, The Structure of Property Law, (Hart Publishing 2008)
Roberts, Nicolas, “The Bruton tenancy: a matter of relativity”, Conveyancer and Property Lawyer (2012)
Routley, Patrick, “Tenancies and Estoppel- After Bruton v London & Quadrant Housing Trust”, Modern Law Review Limited (2000)
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • Legal Essay consumer law
  • Essay on Legal Concepts
  • lease Essay
  • Land Law
  • Essay on Lease
  • lease Essay
  • Essay on DISTINGUISHING BETWEEN LEASES AND LICENSE
  • Abortion Law Australia

Become a StudyMode Member

Sign Up - It's Free