Land Law and License to Occupy - Essay Example

? Land Law Most often, tenant rights are frequently overlooked when arranging tenancy of a new or existing property. At such times, the tenancy rules seem frivolous and irrelevant. However, in the instance that one becomes a victim of lousy landlord or tenant, then these greatly ignored rules become important and relevant. In England and Wales, the most employed form of tenancy is Assured Short hold Tenancy (AST). This has been in existence since 1997, and all tenancy agreements entered after 28th February 1997 are automatically considered AST unless adequate steps are undertaken to convert to Assured Tenancy. The most common problems resulting from tenancy agreements border on landlord ignorance of tenant rights or problems of transfer as the one detailed in this case. This is a situation where a current owner sells the property to another, the major question being whether current tenants are bound by agreements made under the previous owner. Most times, the two forms of tenancy are referred to as either assured or shorthold tenancy. However, there are other forms of tenancy that result, not because they are assured or recognized by the law but because they fail to meet the provisions stated for these two forms of tenancy. A license to occupy A license to occupy is appropriate only for temporary arrangement; it is less detailed in comparison to a full lease. For this reason, it cannot be used in place of a full lease, or where the occupant is going to occupy property for a lengthy period of time. License to occupy is adaptable to diverse situations, and is frequently used when a tenant is only interested to occupy property momentarily or when the procedures of a lease are being concluded. Individuals wishing to occupy property for a temporary time can avoid such long term commitments by drafting a license to occupy, in which case rent is to be paid in the next week or month. If such obligations are not met, the License will come to an end. Under a License to occupy the Landlord has exclusive rights to property access at any time. Lease Agreement Unlike a license to occupy, a Commercial Lease Agreement is appropriate for letting property for a period not less than six moths and not beyond three years. The longer the lease period, the more detailed the lease agreement becomes. An agreement which is anything beyond three years requires a well detailed agreement which should be prepared and reviewed by a qualified solicitor. One major difference between leases and other forms of tenancy is that lease agreements accords exclusive rights of occupancy to the lease holder. The implication of this is that the landlord cannot access the property unless under any identified circumstances specified in the agreement. Exclusive rights to property also mean that the tenant reserves the right of the owner for the period of the lease, this means he can sub let, through a Sublease Agreement. Leasing is not common for residential property but is mostly embraced for commercial reasons. Lease forms a contractual obligation binding the property owner the lessee, however, it also creates an interest in property. For this reason, it must be issued for a definite period of time, but can extend beyond this period. In such a case, it becomes a Tenancy at Will which can be terminated through an adequate notice. Adequate time for the notice might be detailed in the lease agreement, however, if such is not included the notice period will equate to the frequency of payment of rent as indicated in the agreement. The main difference between a lease agreement and a License is that a lease conveys interest in land, something which a license does not. This was well indicated in a 1673 case, Thomas v Sorrell: In this case, it was passed that a license passes no interest, and does not alter or transfer property; all it does is make an act lawful which without the license had been unlawful. A similar, position was taken by Justice Macdonald in Baker v Gee, the Justice held; that according to the provisions of the law, and besides the rental regulations, a common feature of landlord and tenant agreements is that the former passes on the an interest to the tenant. However, a license does not create interest; rather it conveys a privilege for the utilization of the property and makes such act lawful which without the license would be unlawful. A number of rules exist that would be applicable when one does not have exclusive use of the property they let as is the case when the landlord lets to you a part of the house or flat they live in. In the case that the landlord consents to rent you accommodation for certain duration of time in which you will have exclusive use of the property, then this can definitely be termed as assured or shorthold tenancy. In a case where the landlord has not consented to exclusive use of any part of the accommodation, then the tenant is granted a License to Occupy as opposed to assured or shorthold tenancy. The agreement in such a case ought to be a license where the landlord states that he/she will have unrestricted access to the let area/accommodation to administer services or for general monitoring. If the landlord stays within the let property in the case of a resident landlord, then a tenant would be compelled to forego the shorthold tenancy. This normally relates to converted houses. Therefore, if the landlord has his/her house within a flat and decides to let you a separate room within the same flat, then such arrangement cannot be assured or shorthold tenancy. It should be noted that the landlord does not have to let you within his/her personal residence. It is adequate that he lets you live in the very same building. In this differentiation, the landlord lives in a flat within a block and he goes ahead to rent you a different block in the same block, then the landlord cannot be referred to as a resident landlord. In such cases, the tenant is considered as an assured or shorthold tenant. However, if the landlord rents you accommodation within the same flat in the same block, then you will have a License to Occupy. In the agreement signed, the landlord has the prerogative to set any amount as rent, and in a license agreement, the tenants are obliged to pay any amount that the landlord deems fit as per the resident landlord lettings consented since 15 January 1989. Then there is also the issue of joint tenancy as is the case with Martin and Allison. In such cases, the landlord considers the tenants as separate entities. However, if one leaves without consenting with the landlord, then any due rent is levied on the other tenant who still occupies the rent property. During Martin’s and Alison’s tenancy, the Landlord, Imran, dies. This might be viewed in two ways; one way is considering Imran’s wife as a landlord thus there maybe no change in the tenancy. The second way is considering Imran the only landlord. In the latter, the situation is considered the same as when the landlord sells the property. Legally, there are stipulations to make certain that Martin and Alison do not certainly become tenants (assured or shorthold); this is if the new owner Sabjit decides to live in the property. The usual thing after the death of the landlord is that the existent License tenancy becomes assured or shorthold tenancy. However, Sabjit, the new owner can still continue with the prior arrangement if he issues a notice within 28 days stating that he intends to become a residence or he moves into the property within six months of buying the property. Until Sabjit assumes residence, Martin and Alison continue to enjoy tenancy as if the tenancy was assured or shorthold. This protection vanishes if the new owner assumes residence within the six months. Again, referring to the second scenario above (where the landlord is considered dead), then there is two years allowance to wind up his estate plus six months for in the case of sale. Alison and Martin may not enjoy absolute protection of assured or regulated tenancy meaning they are still treated as if Imran was still resident. There is also the aspect of Imran’s wife moving out. In such a case, Martin and Alison’s tenancy is deemed to be assured shorthold tenancy if the initial tenancy came to force after 28th February 1997. Finally, there is the issue of the existing agreement and its applicability after Sabjit buys the property. The law provides that the new owner, Sabjit, inherits the existent tenancy agreement; this is binding even if he is not aware of such agreement. Unfortunately, the case with Alison and Martin is different as these are license holders. In such a case, it only continues if an appropriate agreement comes to force with the new owner (Sabjit). However, this maybe affected by any facts identified and consented to at the time Sabjit owns the property, for example, if it is apparent or known that the licensee was half way through a fixed term arrangement as is the current case. Bibliography UK Government. Landlord and Tenant Act 1985. 2010. http://www.legislation.gov.uk/ukpga/1985/70 (accessed April 14, 2012). Read More