Land Law: a Tenancy Agreement - Essay Example

? Land law Introduction A tenancy is an agreement that outlines the rights and responsibilities of both the tenant and landlord1. A tenancy agreement in land law is formed between the owner of the land, the landlord and the tenant. A tenancy agreement outlines the length of tenancy agreement, duties of both the landlord and tenant and rent payable. Unlike license agreement, tenancy agreement grants the tenant exclusive possession of the property. A license agreement in land law is the authority that is grated by the owner of the land to occupy the land. A tenancy agreement vests an interest in the land unlike license agreement whereby the individual is only granted personal interest by the owner of the land and such interest can be revoked at anytime without any notice2. In differentiating tenancy agreements and license, the intention of the parties at to the nature of agreement is irrelevant; the only determining factor is the intention to grant the party exclusive possession of the property3. A license agreement grants the individual a personal privilege which is revocable at the will of the person granting the license. In tenancy agreements, a letter conveying the transfer of interest in the land to the tenant is mainly used as the evidence of exclusive possession of the property. The licensee is required to use the real property according to the terms set out in the license agreement while the licensor remains with the exclusive possession and control of the property. A license only makes acts that would be considered unlawful like trespass to be lawful. For instance, a license agreement allows the licensee to walk through the land of another or keep his goods in the land of the licensor without being prosecuted for trespass. A gratuitous license can be revoked by the licensor without any notice if the licensee contravenes the terms set out in the agreement or when the licensor desires to end the license4. A tenancy agreement mainly covers a term not exceeding more than three years but there is no express requirement that it should be executed by a deed. The interest of the tenant in the tenancy agreement is protected from third party interference, even without any formal registration as long as the tenant has paid the market rate rent for the property. Tenancy agreements can be created by contract law or common law. A fixed term tenancy covers a fixed period of time whereby the tenant is required to vacate the premises at the end of the period5. Some tenancies are created by common law whereby the tenancy continues indefinitely until it is terminated by provision of notice. In this type of tenancy, the tenant continues to pay rent in periodic terms until both the landlord and tenant provide each other with a notice of intention to terminate the tenancy. A tenancy at will is another form of tenancy that is created by common law. In this type of tenancy, the tenant will occupy the real property either with express or implied consent of the landlord. This mainly occurs when a pre-existing fixed term tenancy expires and the tenant continues to occupy the property up to the time a new tenancy agreement is created or until the landlord requires the tenant to vacate the property6. Another form of tenancy is tenancy at sufferance which occurs at the end of fixed term tenancy holds over to the property and the landlord does not give an indication of consent or objection of the tenant continuing to occupy the premises. If the landlord requires the tenant to move out of the property, the continuing occupancy of the property by such a tenant amounts to trespass. If the tenant pays rent which the landlord accepts, the tenancy changes to periodic tenancy. Tenancy agreements contain covenants and conditions which parties are prohibited from breaching. Covenants impose obligations on one party for the benefit of the other party while conditions refers to even that may occur or not occur leading to the termination of the tenancy. A breach of a covenant will make the landlord forfeit the tenancy and enter in the property. Some covenants are implied in the agreements even when not expressly mentioned in writing. One of the implied covenants is the right of exclusive possession of the property by the tenant. When a person in possession of the property pays rent, even when not described a tenant in the property agreement and is granted exclusive possession, then he becomes a tenant. If such person is denied exclusive possession of the land, the person is not a tenant but a licensee. Exclusive possession of the land grants the tenant the right and authority to exclude all other persons including the landlord from the land as long as the tenancy agreement is valid. A tenant will be granted exclusive possession of the land for rent that is paid for a certain duration of time. Unlike license agreement, tenancy agreements will grant exclusive possession whereby the tenant can exclude the landlord or agents of the landlord from entering the land except in certain circumstances that are contained in the tenancy agreements whereby the landlord may enter the land to inspect and repair premises in the land7. Under tenancy agreement, the tenant must enjoy quiet possession and utilization of the property thus is protected from dispossession from the premises by landlord or any third party. A tenancy agreement grants the tenant a protection from interference from the landlord or third party with the lawful use of the property. If the landlord disconnects either water supply or electricity in the premises, these amounts to breach of an implied covenant thus the tenant can sue for damages and termination of the tenancy agreement. However, the tenant should not use or permit the use of the real property or premises for illegal or immoral purposes. The tenant should not cause unnecessary inconvenience or annoyance or any disturbance to the landlord or any other third person while using the land. The tenant is also prohibited from making any structural alteration of the property without seeking the consent of the landlord. The landlord is entitled to rent money on time thus failure of the tenant to pay the agreed rent grants the landlord the right to sue for property repossession. The landlord can also sue for damages if the tenant remains on the property after the termination of the tenancy or when the tenant has breached a condition stipulated in the tenancy agreement8. Tenancy agreements can be terminated by expiry of the fixed period, by notice of either the tenant or landlord, after breach of a condition, merge with reversion or forfeiture. Certain events such as destruction of the property by earthquake will terminate the tenancy agreement by frustration since it is unjust to both parties to continue with the tenancy contract9. Licenses grants the permission to use the land by allowing the licensee to access the land for the lawful purpose outlined in the license. Licenses do not confer the licensee any interest in the land and justifies acts that would be considered as trespass without authority. Courts of Law consider the intention to grant exclusive possession in the agreement rather than the form in determining whether the agreement amounts to license or tenancy. Services such as lodging do not create exclusive possession but exclusive occupation since the intention of tenancies is to create legal relations. Landlord and Tenant Act of 1985, excludes licenses from statutory protection since the licensee does not have exclusive possession and enjoyment of the property. Licenses are granted to lodgers in homes, hostel services and holiday accommodation whereby the occupier has no estate in the land but only permission to occupy the land10. Three forms of tenancies that are common in United Kingdom include regulated tenancies, assured tenancies and assured shorthold tenancies. Assured shorthold tenancy grants the tenant the exclusive possession and privacy since the landlord cannot enter the premise without advance permission of the tenant. Agricultural tenancies are regulated by the Agricultural Tenancies Act 1995 while business property tenancies are regulated by Rent Act 1977. Housing Act of 1988 provides for the conditions of granting assured shorthold tenancies11. According to the case of Street V. Mount-ford (1985), the intention to grant exclusive possession was emphasized in determining a tenancy and license agreement. In the case of Ashburn Anstalt v. Arnold (1989), the court ruled that right of the landlord to receive rent money was not an essential feature of license or tenancy12. Conclusion In determining whether an agreement amounts to a tenancy as opposed to a license, the intentions of both the parties to the agreement are irrelevant, the only distinguishing intention that is relevant is the intention of granting exclusive possession of the property to the tenant. A license is a permission to occupy the property and does not create an interest in the land. The landlord can revoke his permission of occupation in a license agreement at will unlike in tenancy agreement whereby the tenant enjoys quiet possession and use of the land during the tenancy period. Bibliography: Cowan, David. Housing law and policy. Cambridge. Cambridge University Press. 2011. Dixon, Martin. Modern land law. London. Taylor & Francis. 2011. Hopkins, Leon. The landlord’s handbook: an essential guide to successful residential letting. London. Harriman House Limited. 2010. Thomas, Meryl. Blackstone’s statutes on property law 2006-2007. Oxford. Oxford University Press. 2007. Williams, Del. Landlord and Tenant casebook. London. Taylor & Francis. 2002. Read More