Leases

If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.

Facchini v. Bryson

In Somma v. Hazelhurst [1978] 1 W.L.R. 1014, a young unmarried couple H. and S. occupied a double bedsitting room for which they paid a weekly rent. The landlord did not provide services or attendance and the couple were not lodgers but tenants enjoying exclusive possession. But the Court of Appeal did not ask themselves whether H. and S. were lodgers or tenants and did not draw the correct conclusion from the fact that H. and S. enjoyed exclusive possession.

The Court of Appeal were diverted from the correct inquiries by the fact that the landlord obliged H. and S. to enter into separate agreements and reserved power to determine each agreement separately. The landlord also insisted that the room should not in form be let to either H. or S. or to both H. and S. but that each should sign an agreement to share the room in common with such other persons as the landlord might from time to time nominate. The sham nature of this obligation would have been only slightly more obvious if H. and S. had been married or if the room had been furnished with a double bed instead of two single beds.

If the landlord had served notice on H. to leave and had required S. to share the room with a strange man, the notice would only have been a disguised notice to quit on both H. and S. The room was let and taken as residential accommodation with exclusive possession in order that H. and S. might live together in undisturbed quasiconnubial bliss making weekly payments.

Types of lease or tenancy

Fixed term lease Periodic tenancy Tenancy at will

Tenancy at sufferance

My Lords, I consider that the principle in Lace v. Chantler [1944] K.B. 368 reaffirming 500 years of judicial acceptance of the requirement that a term must be certain applies to all leases and tenancy agreements. A tenancy from year to year is saved from being uncertain because each party has power by notice to determine at the end of any year. The term continues until determined as if both parties made a new agreement at the end of each year for a new term for the ensuing year. A power for nobody to determine or for one party only to be able to determine is inconsistent with the concept of a term from year to year.

A lease can be made for five years subject to the tenant's right to determine if the war ends before the expiry of five years. A lease can be made from year to year subject to a fetter on the right of the landlord to determine the lease before the expiry of five years unless the war ends. Both leases are valid because they create a determinable certain term of five years.

A lease might purport to be made for the duration of the war subject to the tenant's right to determine before the end of the war. A lease might be made from year to year subject to a fetter on the right of the landlord to determine the lease before the war ends. Both leases would be invalid because each purported to create an uncertain term.

A term must either be certain or uncertain. It cannot be partly certain because the tenant can determine it at any time and partly uncertain because the landlord cannot determine it for an uncertain period. If the landlord does not grant and the tenant does not take a certain term the grant does not create a lease.

Non-derogation from grant

 (1) the covenant benefits only the reversioner for time being, and if separated from the reversion ceases to be of benefit to the covenantee; (2) the covenant affects the nature, quality, mode of user or value of the land of the reversioner; (3) the covenant is not expressed to be personal (that is to say neither being given only to a specific reversioner nor in respect of the obligations only of a specific tenant); (4) the fact that a covenant is to pay a sum of money will not prevent it from touching and concerning the land so long as the three foregoing conditions are satisfied and the covenant is connected with something to be done on to or in relation to the land.