Lease vs License: Exclusive Possession and Legal Precedents

Lease vs License: Key Legal Distinctions

Application of Berrisford v Mexfield

However, Berrisford v Mexfield only applies to individual leases and not corporate bodies or commercial leases. As such, it is very clear that the Supreme Court (SC) is trying to save individual, domestic, and residential leases to avoid injustice.

In Southwork Corporation v Walker, the courts looked at the intention of the parties to determine whether they were trying to create a lease or license, which again prevents injustice.

Requirement for Exclusive Possession

Denying Exclusive Possession

The second requirement is that there must be exclusive possession. Mostly, landlords will try to deny the occupiers exclusive possession as it would make them the actual owner of the land without supervision. Therefore, the courts will be vigilant, aware, and cautious of sham devices that the landlords come up with to deny exclusive possession and strike them down. Examples include:

• Landlords labelling the heading of the document as a 'licence'.
• Using the term 'occupying fees' instead of 'rent'.

If this is detected, the courts will strike down these labels.

Landlord Interference and Sham Devices

Furthermore, if a landlord is able to keep coming into the property, there will not be exclusive possession. Therefore, if the landlord tries to provide cleaning services (Crancour v Da Silvaesd) or retains the keys (Aslan v Murphy), this would mean no exclusive possession, unless the landlord doesn't actually step into the property or keeps the keys only for emergency purposes.

If the landlord retains the right to bring a third party or himself to stay in the property, then this will amount to a sham device as per Antoniades v Villiers, and the courts will cancel it and grant a lease.

Situations Involving Multiple Occupancy Agreements

Contrasting Cases: AG Securities and Antoniades

However, there are also situations where there are multiple occupancy agreements, as seen in AG Securities v Vaughan and Antoniades v Villers.

AG Securities v Vaughan

In AG Securities, the tenants started occupying different rooms at different times and paid different amounts of money for them. The house was given as a license, but the individual rooms were not, as the landlord could go into the kitchen but not the rooms.

Antoniades v Villiers

In Antoniades v Villers, the landlord wanted the couple to sign separate agreements because they were different people in a particular property, but the courts saw them as joint tenants of the particular property. Therefore, a lease was granted.