leases and licenses

• License


  A personal interest
• Lease


  A property interest
• Leases and Licenses: Outline

  • The lease / license distinction
  • Street v Mountford (1985)
  • The definition of a lease
  • Antoniades v Villiers (1990)
  • AG Securities v Vaughan (1990)
  • Sharing residence
  • Westminster City Council v Clarke (1992)
  • Bruton v London Quadrant Housing (1999)
  • Exceptional cases
  • Templemania
• Ownership, possession, property, land

  A set of relationships, ideas, and material things
• Gray & Gray: key ideas


  • Fragility of concept of property
  • Relationality of property
  • Power and property
  • 'the proper order of things'
  • Relative both in practice and as an idea
  • Degrees of Property – a slippery concept
• Property as


  • Fact
  • Right
  • Responsibility
• Property as Fact

  • Anti-intellectual streak to property law
  • The propriety of property
  • Emotional security & sovereignty
  • the potency of the behavioural connotations of property
  • the externally verifiable modalities of possessory control
• Property as right


  • A complex calculus of carefully calibrated estates and interests in land
  • Not necessarily 'visible' or 'material'
  • One step removed from estate/land
  • Ownership of a right in/over physical property
  • An abstract right
• Property as responsibility


  • Elements of utility characterizing a relationship to land
  • Held in balance
  • Not so much a bundle of rights as a bundle of individuated elements of land-based utility
  • A state-directed responsibility to contribute to the collective exploitation of land resources for communal benefit (Locke?)
  • Less a right, more a restraint (or obligation)
  • Not the arrogance of right, but the obligation of civic responsibility and community
• License


  • A permission
  • Temporary
  • Conditional
  • From the Latin precario
• Licenses


  • They may be contractual
  • They can be withdrawn
  • They do not bind third parties
  • They pose no threat whatsoever to those who might acquire an interest in the land
• Licences to use/occupy property

  • To park over the holidays on my neighbour's land
  • To stay with my parents over the pandemic
  • To shop
  • To grow vegetables on an allotment
  • To walk on open parkland
• Lease


  • A grant of land
  • For a term
  • At a rent (although this may no longer be required)
  • With exclusive possession of the land
• Street v Mountford 1985 House of Lords


  An agreement granting exclusive occupation of residential accommodation for a term at a rent (where no services are provided) creates a tenancy, notwithstanding the use of the word 'licence'
• Street v Mountford was a radical decision that overruled contractual autonomy and lowered the threshold for statutory protections
• The facts in Street v Mountford

  • Mrs Mountford and her husband lived on the top floor of a house divided into 'flatlets', owned by Mr Street
  • An agreement was signed in 1983 for Mrs Mountford to pay £37 per week
  • The agreement banned anyone other than Mrs Mountford from occupying the rooms without prior permission
  • The agreement gave Mr Street the right to enter the rooms to inspect them, read meters, carry out maintenance, etc.
  • The agreement required Mrs Mountford to keep the rooms clean and tidy
  • The agreement was terminable on 14 days notice
  • The agreement stated it was a 'licence' and not a tenancy protected under the Rent Acts
• The legal journey in Street v Mountford

  • Mrs Mountford registered a fair rent under the Rent Acts
  • Mr Street applied to the County Court for a declaration that her occupancy was a licence
  • Mr Street conceded exclusive possession but argued the intentions of the parties were definitive
  • The County Court said it was a tenancy
  • The Court of Appeal said it was a licence, as it was possible for an owner to grant a right of exclusive occupation without creating a tenancy if the clear intention of both parties was manifested
• Lease (according to Lord Templeman in Street v Mountford)

  A grant of land for a term at a rent (although this may no longer be required) with exclusive possession of the land
• Licence (according to Lord Templeman in Street v Mountford)

  Does not confer exclusive possession of the land
• Where there is exclusive possession, the agreement is a lease unless it falls within an exception (Templemania)
• Tenancy (according to Lord Templeman in Street v Mountford)

  An estate in land where the tenant possesses exclusive possession and can exercise the rights of an owner of land, albeit temporarily and subject to certain restrictions
• Licensee (according to Lord Templeman in Street v Mountford)

  Lacks exclusive possession and cannot call the land their own or be said to own any estate in the land
• Lord Templeman: ''the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. 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.''
• Not all exclusive possessors are tenants - they may be owners in fee simple, trespassers, mortgagees in possession, objects of charity or service occupiers
• To constitute a tenancy, the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments
• The context of the Rent Act is very important in Street v Mountford, as the case decides that a tenancy involves exclusive possession, for a term, at a rent
• Sharing Cases

  • Antoniades v Villiers [1990] 1 AC 417
  • AG Securities v Vaughan [1990] 1 AC 417
• In Antoniades v Villiers, separate agreements were signed with Mr Villiers and Miss Bridger to occupy an attic flat in Mr Antoniades' house, with terms allowing Mr Antoniades to share the accommodation
• The court in Antoniades v Villiers examined the surrounding circumstances, including the course of negotiations and the intended and actual use of the premises, to determine that the terms allowing Mr Antoniades to share the accommodation were a pretence to disguise the grant of a tenancy and contract out of the Rent Acts
• In AG Securities v Vaughan, the agreements between the landlord and residents required the occupiers to share the accommodation
• Lord Templeman: ''… if the four respondents had been jointly entitled to exclusive occupation of the flat then, on the death of one of the respondents, the remaining three would be entitled to joint and exclusive occupation . But, in fact, on the death of one respondent the remaining three would not be entitled to joint and exclusive occupation of the flat. They could not exclude a fourth person nominated by the company.''
• Lord Templeman argued that the four residents could not be tenants; they had to be licensees.
• Joint tenancy


  • Four 'unity' requirements:
  • Unity of possession: each joint tenant must be entitled to possession of every part of the co-owned land.
  • Unity of interest: each joint tenant's interest in the estate must be the same in extent, nature, and duration.
  • Unity of title: each joint tenant must derive their title to the estate from the same act (e.g. adverse possession) or the same document.
  • Unity of time: the interest of each joint tenant must normally vest at the same time.
• Determining joint tenancy


  1. Do the agreements require the signatories to become joint tenants with others?

  2. What would happen if one of the tenants died? If the answer is that the landlord would move someone else in, and the other tenants would have no power to prevent this, then they cannot have a joint tenancy (because joint tenants enjoy exclusive possession).

  3. Are the four unities present?
• The purpose of the accommodation is relevant even when there is exclusive possession.
• Nemo dat quod non habet


  You cannot grant what you do not have
• The clarity of Street v Mountford is depleted in the real world.
• The Housing Act 1988 introduced assured and assured shorthold tenancies, with market rents and limited succession rights.
• Increasing re-regulation includes extension of obligations under s.11 of the Landlord and Tenant Act 1985, Homes must be fit for human habitation, and Tenant deposits are protected.
• Property guardians are used to protect premises from trespassers, often in commercial or industrial buildings not adapted for residential living, which can pose health and safety risks.