Property Law Rights of a Tenant

Property Law Rights of a TenantPart 1In this scenario, Raj has allowed his sister-in-law, Joyce, to live in his quality. The call into question is whether Joyce enjoys the rights of a dwell, or if she is in truth a mere licensee. There is, in English holding law, a crucial trace between the tenant and the licensee the former enjoying significantly great and more secure rights than the latter. It is often non, however, a clear cut distinction. In the fork out good example, the confiness of the communication channel arranging that the parties drew up go out need to be considered.Firstly, the entry itself needs to be considered. The primary bourn of it expressly states that Joyce is living in Rajs house as a licensee, and not as a tenant or lessee (that is, that no lease has been created). The document itself, however, might well represent a contract, which would put Joyce in the lieu of a contractual licensee (following such cases as R v Tao (1977) ). horizontal a c ontractual licensee, however, enjoys no patented interest in the property in question, as was evidenced in the case of Ashburn Anstaldt v Arnold (1989). A contractual licence can be contrasted to a au naturel(p) licence, which is evidently a individualal permit, allow in this case by Raj to Joyce, without Joyce gainful devotion, for her to enter his property. The pop the question of the bargon licence is to provide a self-renunciation against an allegation of trespass, so long as the licensee does not overstep the permission of the licence, as happened in the case of Tomlinson v Congleton Borough Council (2003). A contractual licence, by contrast, must involve (as in any contract) valuable consideration abject from the licensee. This was established by Megaw LJ in Horrocks v Forray (1976). Joyce pays a monthly aim of 600 to Raj, and this could well qualify as the consideration put the licence compact on a contractual footing.The second term of the occupation agreement s tates that Raj can nominate a third party to share the exposit with Joyce. This relates to the issue of sole(prenominal) possession, which is an essential element of any lease or tenancy. This was described as the proper touchst genius of a lease by Windeyer J in Radaich v smith (1959). Two seminal cases highlighted this distinction between leases and licenses. In Street v Mountford (1985), Lord Templeman say that a tenant is en appellationd to keep out strangers and keep out the landlord unless the landlord is exercise limited rights reserved to him by the tenancy agreement to enter and date and repair. In AG Securities v Vaughan (1990), however, it was held that a licensee has no legal title which will permit him to exclude other persons. The agreement in the present case expressly allows for Raj to install a third party at his wish. This certainly argues strongly against anything other than a license governing the situation. real factors, however, suggest that it is not suc h a simple case of Joyce beingness merely a licensee. She pays a periodic monthly rent of 600, and the occupation agreement states that she will live in that location for a fixed term of four years commencing 1 October 2005. To return to Street v Mountford (1985), the abode of Lords, in that case, identified three inherent components of a lease or tenancy. The first was exclusive possession, which has been discussed already, and which is not apparently in evidence in this case. The second, however, is that the lease or tenancy must be granted for a fixed or periodic term certain. This means that the maximum date of the lease or tenancy must be clearly ascertainable from the outset. Although the strict application of this rule was relaxed somewhat, the principle was reaffirmed in Prudential toast Co Ltd v capital of the United Kingdom Residuary Board (1992). The 2005 agreement that granted Joyce the right to live in Rajs house clearly identified a term of four years after which the right would expire. In this respect, because, it would be that the written text more closely resembles a lease. This is also a characteristic, however, of the contractual licence. The third element identified in Street v Mountford was the consideration that was discussed above. This too would suggest the arrangement is more akin to a lease, or at least a contractual licence, than a bare licence.It seems, then, that although the arrangement shares some of the characteristics of a lease, the rights enjoyed by Joyce are, in fact, only those of the licensee that is, a person whose presence is only grounded upon the personal permission of the licensor. Joyces get is stronger than that of a bare licensee, however, by virtue of the contractual arrangement. A further blurring of the limits in this field of view exists between contractual licenses and equitable or estoppel-based license, which has increasingly become proprietorial in character. A contractual licence does not, howev er, confer any proprietorial interest on the licensee, as was illustrated in Cowell v Rosehill Racecourse Co Ltd (1937) by Latham CJ who stated that fifty thousand people who pay to see a football match do not obtain fifty thousand interests in the football ground. A longer contractual licence, however, such as the one enjoyed by Joyce, for a period of four years, begins to resemble a proprietary interest in Rajs property, despite the absence of a right of exclusive possession.It is in relation to this last area that the decisive factor is well-nigh relevant. That factor is that when determining whether Joyces occupancy is a tenancy or a licence, the parties intentions (which were clearly that a mere licence should be granted to Joyce) are largely irrelevant. In Aslan v white potato vine (1990), the greet found that its assess was to ascertain the true bargain between the parties. A crucial case of relevance to the present one was that of Addiscombe Garden Estates Limited v Cra bbe (1958), in which an arrangement which purported to be a licence was in fact held to be a lease. Despite the fact that Raj and Joyce clearly intended the occupancy to be on the basis of a licence, and the contractual agreement was labelled as a licence, the judicature is at liberty to overturn this if the reality is that Joyce enjoys a lease. It seems unlikely, however, because of certain terms of the agreement, that Joyce enjoys a sufficient proprietorial interest in the property to become a lessee or tenant but rather her position resembles that of a contractual (as opposed to a bare) licensee.Part 2 division 11 of the Landlord and Tenant profess 1985 relates to the repairing stipulations in short leases. Briefly, it obliges the lessor (that is, the party owning the great estate, usually the freehold, out of which the lease has been carced) to undertake certain works and repairs to keep in line that the property remains in good working order. An example is the obligation o n the lessor to keep in repair the structure and exterior of the home plate house (including drains, gutters and external pipes). In recent years, this section has been considered in a number of cases.A crucial case in the development of property law was Bruton v London Quadrant Housing Trust (1999). The relevance of section 11 to this case was that the claimant (or plaintiff as he then was) claimed that he was a lessee of the property in question, which was owned by the Trust. Of course, if he was a mere licensee, he would not benefit from the statutory vindication afforded by the Act. The county court found that he was a licensee and there was and then not any break dance of section 11. The House of Lords overturned this, however.Subsequently, in Sykes v Harry (2001), the section was considered again. In this context, the issue considered by the court at first instance (and subsequently re-considered by the judiciary of prayer was whether the landlords (that is the lessors) statutory commerce under section 11 relating to the repair of properties sheath to a short lease was co-extensive with the landlords contractual duty to keep in repair (that is, the obligation created by the lease instrument). Potter LJ stated that there is implied into the tenancy a covenant by the tenant that the landlord may, at commonsensible times of day, and on 24 hours written notice, enter the premises for the purpose of viewing their condition and state of repair. Although at first instance the enunciate had found that the landlords duty to take care had been coextensive with the contractual duty of repair, the Court of Appeal overturned this using section 4 of the bad Premises Act 1972, and the duties imposed on the landlord under this as the superstar factor.Later that year, in Southwark London Borough Council v McIntosh (2001), section 11 was erstwhile again before the court. Here the property in question, which was owned by the council, became defective due to th e effects of severe damp. The question before the court was whether the landlord (the council) was in breach of its section 11 duty of repair. The landlord apostrophizeed against a first instance decision that it was in breach, and the High Court said that the tenant had failed to establish sufficient evidence to the effect that the damp had been ca employ by the landlords breach of its section 11 duties. As such, there was no liability and the appeal was allowed.In Shine v English Churches Housing Group (2004), the question of damages awarded under section 11 was considered. The first instance valuate had awarded damages to the tenant due to the landlords breach of section 11, but the Court of Appeal found these damages to be manifestly excessive. inquiry strategyMy research began, in both instances, with a textbook. I used the contents page and the index of such books and Gray and Grays Land Law, tertiary sport and their Elements of Land Law to identify key sections, such as l ease and license. I conducted some background reading on these two legal interests in property, in order fully to recognize the potential issues relating to each. It became apparent that there is often a blurred limit between the type of legal interest a party enjoys in a property, despite what that interest might be labelled as.Having conducted this sign reading of key sections in various textbooks, I began to look for detail cases in which the issue of the lease/license distinction, and the application of section 11 had been considered. For this I used both textbooks, and electronic resources. I accessed LexisNexis Butterworths online, and was able to runner by doing basic keyword searches in the case locator engine. From here I was able to read the judgments in the various cases, as well as (in some instances) abstracts of the key issues.In researching section 11, I began by determination the statute itself at the Office of Public Sector Information (again, forthcoming onl ine) and was able to locate cases where it had been considered and applied.BIBLIOGRAPHYStatutesDefective Premises Act 1972Landlord and Tenant Act 1985Law of Property Act 1925CasesAddiscombe Garden Estates Limited v Crabbe 1958 1 QB 513, CAAG Securities v Vaughan 1990 1 AC 417Alker v Collingwood Housing AssociationAshburn Anstaldt v Arnold 1989 Ch 1, CAAslan v Murphy 1990 1 WLR 766, CABruton v London Quadrant Housing Trust 1999 3 All ER 481Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605Horrocks v Forray 1976 1 All ER 737, CAPrudential Assurance Co Ltd v London Residuary Board 1992 2 AC 386, HLR v Tao 1977 QB 141, CARadaich v Smith (1959) 101 CLR 209Shine v English Churches Housing Group 2004 All ER (D) 125Southwark London Borough Council v McIntosh 2001 All ER (D) 133Street v Mountford 1985 AC 809, HLSykes v Harry 2001 EWCA Civ 167Tomlinson v Congleton Borough Council 2003 UKHL 47Secondary sourcesGray, K. and Gray, S.F. (2003) Land Law, 3rd Edition (London LexisNexis)Gray, K. a nd Gray, S.F. (2005) Elements of Land Law (Oxford OUP)