LAND LAW
LEARNING CYCLE 6 – LEASES
Lecture: LEASES
If you live in rented accommodation, then you will have a lease (more commonly known as a
tenancy); or, on the other hand, a licence.
This is the key question we address in this LC: is an occupier a lessee/tenant or a
licensee?
The reason why this is such a key question to us in land law is that leases/tenancies
are property rights (i.e., capable of binding third parties), while licenses are personal
rights (i.e., in principle they do not bind third parties).
In this lecture, we’ll talk about...
The history (key to understanding why it’s so contested as a field of law)
The structured questions (which answers whether an occupier is a lessee/tenant or
a licensee)
Case analysis (Camelot v Khoo)
THE 20TH CENTURY: AN ECONOMIC LABORATORY
The 20th Century was seen as an economic laboratory for understanding the effects of
controlling/regulating RENTS in the context of security of tenure (while you don’t need to
know this stuff, it demonstrates why this area is so contested and significant).
Firstly, it’s important to appreciate that, at the turn of the 20 th Century (around
1900), 90% of the population in England and Wales rented; predominantly weekly
tenancies.
There were real concerns in this period about the state and condition of property
amid the issues of disease control (public health); implied terms were often put into
tenancy agreements regarding the state and condition of the property (e.g., the
landlord being responsible for repairs to the structure and exterior of the property in
short-term leases- this implied term under The Housing of the Working Classes Act
remains in place today).
At that time, Parliament had imposed very limited regulation on the relationship between
landlord (i.e., owner of the property) and tenant (i.e., the occupier).
There was some regulation on the quality of the property, but not on the contract
between landlord and tenant.
The lack of control over this relationship became a serious issue during the First World War.
, As a result, there was rapid urbanisation of the population (as that was where a lot
of work needed to be done- in munitions factories).
Therefore, landlords sought to put up rent in urban areas (particularly for these
purposes in Glasgow) which led to national rent strikes.
As a result, in 1915, the Government imposed RENT CONTROL, so that rents could
only rise by a certain percentage point annually (in line with Gov’t standards).
Allied to rent control, there was SECURITY OF TENURE, which restricted landlords’
rights to get their property back and limited them to certain grounds on which they
could evict their tenants.
Between the wars there was some decontrol of rents, but security of tenure remained in
place; in fact, during the Second World War, rent control was reimposed.
After the Second World War, in the late 1950s, there was an attempt at rent decontrol.
The problem with rent decontrol was that it led to significant profiteering: an
example being Rachman, who was a notorious landlord (with “Rachmanism” now in
the dictionary to mean exploiting and intimidating tenants).
Since then, we’re really concerned about bad landlord behaviour.
For example, some landlords would seek to avoid the legislation (i.e., security of tenure) by
granting holiday and company lets.
They would also seek to avoid legislation by granting licences: this is the point at
which land law becomes involved, because we know the difference between a lease
and a licence is that leases grant a property right, while licences only grant a
personal right.
At the same time, differences between the two can be slight and for periods we’ve
had different ways of making that decision.
The reason this background is important when thinking about the legal question: what is
the difference between a lease and a licence?
INTENTION is the difference; but, if we’re only considering the subjective intention
of the parties, it puts the landlord in a very strong position because you’re giving
them a way out of the Rent Acts.
Therefore, we’ve turned to a more objective intention: what is the effect of the
agreement to which the parties entered into?
At the same time, that doesn’t provide a complete answer: we have looked at the
presumed intention but it appears to be, on one view, an irrebuttable presumption
of law.
IMPORTANT; e.g., licensors aren’t responsible for checking the property’s state/condition.
In the 1960s, there were increased controls on harassment and unlawful eviction by
landlords of tenants; and a shift away from rent control to rent regulation.
THE SHIFT
, After this, we moved from rent control to rent regulation (slightly different).
This regulation is set between the landlord and tenant, and subject to oversight by
the state through a rent officer (tribunal decisions).
This came in the Rent Act 1977.
Security of tenure also remained in place until 1988.
We then had the Housing Act 1988, which is the current statute in force.
This did alter things; firstly, by moving from rent control and rent regulation to
essentially only having MARKET RENTS: this would explain why, if you have a shared
student property in Bristol, you’ll be paying around £600 a month as that’s what the
market’s been said to be able to bear.
It also brought in something called ASSURED SHORTHOLD TENANCIES, which most
students will have: this will give you at least 6-months security, but also the landlord
the right to mandatory possession on service of a ‘Section 21 notice’.
This raises the contemporary questions of ‘should landlords have the right to mandatory
possession?’; and ‘have market rents priced people out?’
Since the turn of the 20th century, the assured shorthold tenancies (including ‘Section 21
notice’) and market rents have been retained.
However, we’ve also been introduced to controls on the ways in which landlords
can treat your deposit; increased use of licensing of landlords and properties; the
development of new ways of controlling the condition of property (e.g., through
considering whether the property is unsafe/unfit for human habitation).
If your property is in need of repairs or unfit for human habitation and you rent it
out, your landlord is responsible for doing, and must do, something about it.
SECTION 21 NOTICE (FORM 6A)
Until COVID, all landlords had to do was to provide you with this notice and give you 2
months to move, after which the landlord can take a claim to court (although landlords
rarely do because tenants usually move after receiving such a notice).
During COVID, this period was extended first to 3 months and now to 6 months.
During the 2019 General Election, the Conservative manifesto committed to
abolishing ‘no fault’ evictions (the Section 21 eviction process) to create a ‘fairer
rental market’ (we’re still waiting for this but it may happen next year).
Importance of History
