Land Law

Ninth edition

by Mark Davys

Three Students Revisited

This set of questions covers most of the issues that you will need to consider. What matters is not how your questions are worded nor their precise order, but whether they cover the issues raised here.

  • Make a note of anything that you have missed.
  • Make a note of any additional issues you have raised. Then ask yourself why you raised them - why did you feel answering them would help you advise Charlie? Is the author of these notes right to have ignored them?

The object of these questions is to obtain sufficient information to determine whether Charlie has a lease or a licence. You should, of course, ask Charlie for a copy of any written agreement that he has signed. However, you also need to check that the terms of the agreement reflect the actual terms of his occupancy.

1) What is the duration of the agreement?

  • Is the term sufficiently certain (see Land Law, Section 5.5.2)?
  • Have any necessary formalities been satisfied? You also need to establish what formalities, if any, apply to the agreement, if it is to be a lease (see LPA 1925, ss.52 and Land Law, section 5.6)?

2) Who are the parties to the agreement?

  • Is there a capable grantor and grantees (see Land Law, Section 5.6.1)?
    • Is Charlie over 18? If not, he cannot hold a legal estate in land, including a short tenancy (LPA 1925, s 1(6)).
    • Charlie is unlikely to know the details of Denise’s title to the land. She may not have sufficient title herself (although we know from the rest of the story that this is unlikely) or her right to do so may be limited by the terms of a mortgage.
  • Did Denise enter into separate agreements with each of the students? If so, was this merely a device to try to prevent the four unities arising or were the agreements genuinely distinct (see A. G. Securities v Vaughan and Antoniades v Villiers [1990] 1 AC 417; Land Law, Sections 5.5.3 and 10.3)?

3) Is the effect of the agreement to give Charlie exclusive possession of the land that is the subject matter of the agreement?

What is exclusive possession? What exactly are you looking for? What factors indicate that an occupier does or does not have exclusive possession? You need to ask the right questions in order to decide for yourself whether or not the fact of exclusive possession is established (see Land Law, Section 5.5.3).

  • What does the agreement say? The terms expressed in the agreement are not, of course, conclusive (the Court looks to the actual substance of the agreement in such cases, not its form - Street v Mountford [1985] AC 809), but they are a good starting point.
  • Does Charlie (together with the other students) have the right to exclude Denise from the parts of the house he occupies? Is Denise providing any services to the students that means that she needs unrestricted access to their rooms (see, for example, Street v Mountford [1985] AC 809, per Lord Templeman at 817-819)?
  • How much control does Charlie have over his occupation? For example, does Denise have the right to insist that he changes rooms?

This does not look like a typical lodger arrangement, but it is far from clear, just how much control Denise exercises over the various parts of the house.