claimant to deal with is Tina Thomson (TT), who wants to return to her cottage
which she had been living in since 2012, whereby she had been granted a lease
by Brain Belvon (BB) for ten years. She claims she has every right to return to
her cottage and continue to live there, even though the owner of the estate has
changed. In addition to this claim, she was also given the option to purchase
Belvon Estate for £600,000 within ten years, this claim will also be considered.
issue concerning TT is whether she has a valid lease under English law, whether
it be a legal or equitable lease, which would grant her the right to continue
living in the cottage. In order to establish this, we must consider the legal definition
of a lease and its requirements. The initial approach for determining the
difference between a lease and a licence was set out in the case of Facchini v Bryson1
which set out three core categories for a lease, however PP cannot rely on
these against TT’s claim because there is obviously an established intention to
create legal relations and furthermore, according to the categories, TT was not
an employee or a lodger of BB. The case of Street
laid out the requirements as to what constitutes a lease, which can be applied
to TT’s claim against Paul Paton (PP) using the standard principles, of which
there are three. The first to consider is rent, this requirement stipulates a
strong legal interest within the property, as of course in exchange for
monetary consideration, a lease can be granted in return for this act. However,
a lease can actually exist without a rent, as defined in the Law of Property
Act 1925, ‘whether or not at a rent’3
and further clarification of this rule was confirmed in the case of Ashburn Anstalt v Arnold4,
whereby the Court of Appeal concluded that rent was not an absolute principle. Usually
this principle is dealt with last, but since TT does not pay any rent, it seems
appropriate to deal with this issue first. The next requirement is exclusive possession,
which can be proven by the fact that she is the sole occupier of the cottage, evidenced
by her also having personal items in the cottage which belong to her. The final
requirement for a lease is that it must be granted for a fixed or periodic
term, in TT’s case she was granted the lease by BB for ten years, ending
2022. Considering the law and
evidence stated above, we can conclude that TT’s lease is still valid, however,
is it a legal or equitable lease?
comes to legal leases, we will follow the statutory principles laid out in the
Law of Property Act 1925, section 525
which states that a lease is legal if created by deed. Analysing the case, it
is difficult to determine whether the lease was created by deed or not, “TT had
a lease granted by BB in 2012 for ten years” is the exact wording. But,
considering the language being used, i.e. ‘granted’ we could argue that this
means the lease was created by deed (find the thing Matt was on about). If we
follow the narrative that TT’s lease is legal, if she registered the lease,
then it will be protected, as set out in the Land Registration Act, section
29(2)(a) – whereby an interest is protected if it is a registered charge or the
subject of a notice in the register6.
Furthermore, because the lease (still assuming it was created by deed) is for a
term exceeding seven years, it has to be registered in order for it to be
protected in accordance with section 27(2)(b)(i)7.
If TT hasn’t taken any of these steps in order to register her land then she
will not possess a legal interest. TT would therefore look towards an equitable
lease, and try to obtain an overriding interest through the fact that she has
actual occupation within the cottage. TT could very much argue that she has
priority concerning the occupation of the cottage, as she had been living there
for a number of years and has obtained actual occupation, an interest belonging
to a person at the time of the disposition8.
A strong case supporting actual occupation providing an overriding interest
could be that of Williams & Glyn’s
Bank v Boland9
1 Facchini v Bryson 1952 1 TLR 1386 (CA).
2 Street v Mountford 1985 UKHL 4, 1985 AC 809.
3 Law of Property Act, s.205(1)
4 Ashburn Anstalt v Arnold 1988 EWCA Civ 14,1989 Ch 1.
5 Law of Property Act 1925, s.52.
6 Land Registration Act 2002,
7 Land Registration Act 2002, s.27(2)(b)(i).
8 Land Registration Act 2002, Schedule
3, Paragraph 2.
9 Williams & Glyn’s Bank v Boland 1980 2 All ER 408 (HL).