Termination of Tenancy by the Landlord - Essay Example

? [LAW LAW] 27 May LAND LAW Q1. Elizabeth, being the new owner of the property can legally demand all of the four (4) present occupants of the property to vacate it. As a matter of right, she can claim ownership and possession of the house any time, since ownership has been vested to her through a valid contract of sale between her and the original owner Judith. In the case of William and Catherine, both of them hold a separate license agreements to the property, otherwise known as a “License to Occupy”, which was for an unspecified short term. Since the agreement does not stipulate a fixed duration, it can be terminated at the will of the landowner, provided that the notice requirement under Article 4 (1) (2) of the Landlord and Tenant Act of 1954 has been satisfied. There is no exclusive possession in this kind of agreement as the licensee does not enjoy exclusive occupation over the property. In fact, based on the agreement, there was a provision which allows Judith, the licensor, to enter the flat and share the couple’s bedroom any time she wishes. This is merely a temporary arrangement and cannot ripen to a full lease agreement. In the case of In EC Commission v United Kingdom (Case C-359/97) [2000] STC 777,804, the European Court held that: “The term ‘letting of immovable property’ must be construed strictly. The Court concluded, that the term ‘letting of immovable property’ cannot be considered to cover contracts where, the parties have not agreed on any duration for the right of enjoyment of the immovable property, which is an essential element of a contract to let." While in the case of Timmons v. Cropper (40 Del. Ch. 29, 172 A.2d. 757, 759) ‘License with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in, licensee any title, interest, or estate in such property. In addition, “Licenses to occupy are somewhat less than leases and do not grant ‘possession’ or a legal interest in the land, which is the usual right of exclusive occupation. One example of a license is that of a lodger in a landlord's home. The lodger has no exclusive possession of any part, and shares facilities. The landlord has total control though there is a small element of protection in that even residential licensees can appeal to the courts against summary eviction” (Landlord Zone). Hence, Elizabeth has the right to enter the property at anytime she wishes and claim the portion of the property being used by William and Catherine and revoke the license, provided the notice requirement has been sent to the licensors. In the case of the first floor of the property, since Philip was an employee of Judith who served as the handyman in the house, Philip’s stay in the property served as part of his fringe benefits as an employee. As an employee, his stay in the house did not create exclusive use of that portion of the house where he is presently occupying, as evidenced by the key to the flat to do housekeeping. However, since the property was sold to a third party, the ownership and possession of the property has now been automatically transferred to the new owner, Elizabeth. Although there was no mention as to the term of the lease agreement, it is presumed that the owner can claim the property at anytime she wishes as she remains to be the owner of the property. The same treatment shall be applied to Beatrice, Judith’s niece who was granted a gratuitous license to use the top flat for free since was unemployed. “A gratuitous license is revocable by notice at any time” (Duhaime). Lord Mackay Clashfern, Halsbury's Laws of England has stated that:  "A license is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner's possession and control, the agreement operates as a license. It does not create any estate or interest in the property to which it relates. It only makes an act lawful which otherwise would be unlawful” (Duhaime). Under Article 4 (1) (2) of the Landlord and Tenant Act of 1954, the law provides: Termination of tenancy by the landlord. (1) “The landlord may terminate a tenancy to which section one of this Act applies by notice given to the tenant in the prescribed form specifying the date at which the tenancy is to come to an end (hereinafter referred to as “the date of termination”), being either the term date of the tenancy or a later date: (2) A notice under the last foregoing subsection shall not have effect unless it is given not more than twelve nor less than six months before the date of termination specified therein”. Therefore, the act of Elizabeth to request all four occupants of the flat to vacate the property is justified, as she is now the new landlord of the property. However, she has to comply with the notice requirement of not more than 12 or 6 months before the termination takes effect. Q5. Rubina can compel Sophia to vacate the property. The original lease agreement between Lola and Tara did not contain a provision which allows that the property be sublet. Therefore, the assignment of the lease agreement to Asif did not include the right to sub-let the property. Rubina, being the new owner of the property can demand Sophia to vacate the property. She is now the new registered owner and has the right to manage, control and dispose the property. In the case of Clarence House Ltd v National Westminster Bank  08 EG 106, 1 WLR 1216 (CA) [2010], the Supreme Court ruled that transfer of economic benefits of a property without parting with and sharing of possession merely constitutes a virtual assignment, especially when the premises were sublet and only the head lease was assigned. “The assignee was only agent for the collection of rental fees and the head lessor remained responsible for the approval of any new sublease” (Delta Publishing). Thus, in this case, Tara was not authorized by the lease agreement she signed with Lola to sublet the property to a third person. Hence, when Tara assigned to Asif the lease premises, Tara did not authorize Asif to sublet the property. Thus, what was merely assigned to Asif were the economic benefits of the property, but Tara did not have the intention to part with or share the possession of the leased premises, nor was Asif authorized to sublet the property. Therefore, the contract entered into by Asif and Sophia was void from the beginning since Asif was never authorized by the head lessor to sublease the property. Asif merely acted as an agent to Tara for the collection of the rental fees and the head lessor, Tara still retained the power and control to approve any new sublease. Failure of Asif to obtain approval from the head lessor makes the sublet agreement with Sophia void from the beginning. Therefore, Rubina can compel Sophia to vacate the premises and the removal of the GP surgery within the premises since Rubina has already validly purchased the reversion from the original owner, Lola. Q3. Jumoke can demand that she be granted an easement or right of way by Kasia to enter the property. According to Strang, “An easement is the right to enter, to use land possessed by another for a specified purpose. The land benefited by an easement is the dominant estate, and the land burdened by an easement is the servient estate” (2). The person with the right to enter and use the land of another is the dominant tenant, while the person whose property is burdened is the servient tenant. The most familiar example of an easement is where one property owner, the servient tenant, grants the right to drive over his property to another property owner, the dominant tenant. In the case of Granite Properties Ltd. Vs. Manns 512 N.E.2d 1230 (Ill. 1987), the Supreme Court held that it is legal to “grant an implied easement when there are pre-existing driveways which are apparent obvious and in continuous use before the conveyance, and at the same time as important and convenient”. The court’s rationale behind this ruling is that an implied easement is inferred of the intention of the parties, based from the circumstances surrounding the conveyance, which include failure of the parties to put the implied easement in writing though such was the original intention. This is known as an “easement by prior use because the owner of the dominant estate has already been enjoying the benefit of passing through the servient estate. By the doctrine of prior use, the easement became continuous and apparent”. These shall be more convenient for the dominant estate to avail of the convenience of creation of an easement by implication. In this case, the pre-existing use of Jumoke which was of continuous, permanent and convenient in nature is inferred to be the intention of the parties Caroline and Jumoke before the property was sold to Kaisha. Hence, Kasia should continue to allow Jumoke to make use of the easement/ right of way after the grant of passage by prior use. Jumoke has already been enjoying the privilege of passing through the property of Kasia, which was previously owned by Caroline. The illegal act of Kasia by depriving Jumoke the right of way gives Jumoke the right to file a case for damages against her. Works Cited: Clarence House Ltd v National Westminster Bank  08 EG 106, 1 WLR 1216 (CA) [2010] Clashfern, Lord Mackay, Halsbury's Laws of England (London: LexisNexis-Butterworths, 2007) Duhaime.org. Definition of License. Viewed on May 26, 2011, from http://www.duhaime.org/LegalDictionary/L/License.aspx Encyclopedia of Real Estate Terms 2011. Delta Alpha Publishing. Viewed on May 26, 2011, from https://www.realestatedefined.com/cases_statutes_books.html EC Commission v United Kingdom (Case C-359/97) [2000] STC 777,804 Granite Properties Ltd Vs. Manns 512 N.E.2d 1230 (Ill. 1987) Landlord Zone 2011. Legal Aspect of Property in England and Wales. Viewed on May 26, 2011, from http://www.landlordzone.co.uk/legal_aspects.htm Landlord and Tenant Act of 1954 (“1954 Act”) Law Property Act of 1925 Strang, Lee J. Damage as the Appropriate Remedy for Abuse on Easement: Moving Toward Consistency, Efficiency, and Fairness in Property Law. Retrieved on May 26, 2011, from http://lawprofessors.typepad.com/property/files/Strang.pdf Timmons v. Cropper (40 Del. Ch. 29, 172 A.2d. 757, 759) Read More