Land law Essay Example | Topics and Well Written Essays - 1500 words - 2

Land law - Essay Example in respect of the land., these can be express covenants agreed between the parties or implied covenants as a matter of law (implied could be the obligation of the tenant to pay rent under the equitable lease. (Shiloh Spinners v Harding)1). Lord Templeman in Street v Mountford2 said that the essential feature of a lease is that exclusive possession of the property is given to a person for specified term, in return of rent. The most important issues in respect of exclusive possession is the fact that it gives ownership to the person for a specified period of time, and because of it being a proprietary interest, it can be assigned, and may be binding on subsequent owners of reversion. In the case of a license it is more of a personal right, binding on parties who created it. (Lloyd v. Dugdale)3. Furthermore, in the case of leases the landlord’s right is restricted to remove tenants and to set rent, this is contrary to what happens in the case of licences. Therefore the distinctio n of lease and licence is of the essence. The deciding factor in respect of lease and licence is that of exclusive possession. Exclusive possession is determined by the facts and surrounding circumstances and other factors. Labels in themselves are therefore not decisive, and so the intention of the parties are not relevant, but the substance of rights that have been created have been construed to be relevant. There are certain exemptions where even if the occupier is in exclusive possession a lease is not created ( Lord Denning in Facchini v Bryson)4. In accordance with Lord Templeman in Street, the fact that the substance of agreement and not the label, is what is important, restricts the situations whereby a license would be construed. From the facts, it can be construed that exclusive possession was granted to Tom. The next element that is important is the fact that it must be for a certain term. This is clearly the case as Lionel agreed to grant Tom a lease for five years. The next element of tenancy is that of rent as specified by Lord Templeman in Street. Clearly Tom was under an obligation pay the rent as well as the premium. Thus in the current situation a lease has been created. As far as creation of a lease is concerned, that is done in two stages, the first being the contract being concluded so as to grant a lease between the landlord and tenant, and the next step is that of the execution of the contract by grant of lease by deed. For the existence of a legal lease of more than three years or where a premium is charged are legal only if they are executed by deed, a requirement under section 52(1) of the Law of Property act 1925. A deed has been defined as a formal written document and in accordance with section 1 of Law of Property (Miscellaneous) Provisions Act 1989, a said document is construed to be a deed only if it expressly declared itself to be a deed and is witnessed by one other person. As far as equitable leases are concerned, they tend t o exist when an enforceable contract is entered into between the landl