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Karen and John are an unmarried couple who are looking for their first home together. They have found a flat advertised on the internet. Spyros is the landlord. The advertisement for the flat read: ‘Flat available. Would suit young couple. Cheap rent.’
Ka...
LEASEHOLD COVENANTS ALLOWS TWO OR MORE PEOPLE ENJOY THE
BENEFITS OF OWNING AN ESTATE AT THE SAME TIME IN THE SAME PIECE OF
LAND. THE MOST CITED DEFINITION IS AS PER LORD TEMPLEMEN IN STREET
V MOUNTFORD. WE WILL DISCUSS THEM IN TURN
STREET V MOUNTFORD OVERRULING SOMMA V HAZLEHURST , THE PARTIES
CANNOT AVOID GRANTING A LEASE BY MERELY CALLING IT A LICENSE EVEN
IF IT WAS EXPRESSLY STATED. IT IS NOT THE PARTIES INTENTION THAT IS
RELEVANT BUT THE SUBSTANCE OF THE AGREEMENT THEY HAVE CREATED.
ACCORDING TO LORD TEMPLEMEN THE COURT SHOULD BE ASTUTE TO
DETECT AND FRUSTRATE SHAM DEVICES. IT IS FRAUD IF THE AGREEMENT
SMELLS AND LOOKS LIKE A LEASE. LANDLORDS NORMALY WOULD AVOID
GRANTING A LEASE BECAUSE THEY WILL HAVE RIGHTS AND OBLIGATIONS
AND IT BINDS FUTURE TRANSFEREE, IT IS GOVERNED UNDER STATUTORY
PROTECTION HOWEVER A LICENSE IS A PERSONAL RIGHTS AND HAS LIMITED
REMEDIES. ON THE FACTS THE AGREEMENT HERE EVEN THOUGH SPYROS
SAYS IT’S A LICENSE, THIS DOESN’T MEAN THAT IT IS ONE. AS STATED BY
LORD TEMPLEMEN IF THE AGREEMENT SMELLS AND LOOKS LIKE A LEASE
THAN IT IS A LEASE AND THEREFORE IS FRAUD IF OTHERWISE. THE PARTIES
ARE THEREFORE ADVISED THE WORD ‘LICENSE’ DOES NOT MEANS IT’S A
CLEARCUT LICENSE.
FIRSTLY THERE MUST BE CERTAINTY OF DURATION THAT IS THE LENGTH OF
THE AGREEMENT MUST BE CERTAIN. THIS REQUIREMENT HAS BEEN SUBJECT
TO CRITICISM HOWEVER IT REMAINS ONE OF THE SUBSTANTIAL INGREDIENT
OF A LEASE THAT IS THE EXCLUSIVE POSSESSION GRANTED MUST BE FOR A
CERTAIN PERIOD OF TIME. IN LACE V CHANTLER, THE TERM OF THE
AGREEMENT WAS FOR THE SECOND WORLD WAR AND THEREFORE WAS
HELD TO BE VOID. OTF THERE IS NO MENTION ABOUT THE TERM OF THE
AGREEMENT THEREFORE THE PARTIES MAY FACE A PROBLEM HERE AS THE
TERM MUST BE CERTAIN FOR EXAMPLE 5 YEARS, 50 YEARS ETC..
HOWEVER WE HAVE THE CASE OF PRUDENTIAL ASSURANCE V LONDON
WHERE THE HOUSE OF LORDS OVERRULED SOME ASPECTS OF ASHBURN V
ARNOLD AND HELD THAT WHERE AN UNCERTAIN TERM THAT COULD
BEMADE CERTAIN BY ACTIONS OF THE PARTY COULD NOT BE VALID AS IT
GOES AGAINST THE SPIRIT OF THE RULE. HOWEVER THE DECISION IN
BERRISFORD V MAXFIELD WHERE THE SUPREME COURT CRITICISED THE
REQUIREMENT OF A LEASE SAYING IT HAS BEEN APPLIED IN AN ARBITRARY
FASHION.
HOWEVER DESPITE THIS THE SUPREME COURT FELT THAT THEY COULD NOT
DISPENSE WITH THE RULE HOWEVER THEY WENT ON TO CLARIFY SOME
ASPEECTS OF THE LAW. TODAY IF AN UNCERTAIN TERM WAS GRANTED TO AN
INDIVIDUAL NOT A COMPANY THERE IS AN OLD COMMON LAW RULE THAT
SAYS IT WILL BE A LEASE FOR LIFE TERMINABLE IF THE UNCERTAIN EVENT
OCCURRED. IT WILL BE SAVED STATUTORILY BY SECTION 194(6) LRA 2002
THAT STATES A LEASE FOR LIFE OR A LEASE FOR MARRIAGE WILL
AUTOMATICALLY BE CONVERTED INTO A LEASE FOR 90 YEARS. AS SUCH THE
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