1. Land Law Coursework 2013|Law LLB Full Time
1
Land Law Coursework 2013|Law LLB Full Time
This answer will seek to advise Henry on the stages he must follow before he can turn to the
courts to be granted a possession order should the tenants fail to cooperate and refuse to leave
the premises. In order to determine how Henry may go about obtaining an order for possession,
each of the agreements must be reviewed in order to identify whether they fall under the title
of a lease or a licence. As Henry is presumably looking to empty the flats as soon as possible,
he will be hoping to establish that the agreements are licences as opposed to leases which are
more protected by statute and will require a longer notice period before there can be any
intervention from the court.
The first arrangement is Mark and Sam’s contract for the first floor flat. The best argument for
Henry to put forward, in this instance, is Mark and Sam’s lack of exclusive possession. Whilst
there have been several definitions put forward, one of the more commonly referenced1
is that
of Lord Coleridge CJ from Wells v Kingston Upon Hull2
asking ‘Has the grantee been given
the general control of the property’. This has been further defined by authors such as Bray
claiming that the tenant is given control of access to the property with the power to exclude
anyone, including the landlord, from it3
. In Street v Mountford4
, Lord Templeman claimed that
there can ‘be no tenancy unless the occupier enjoys exclusive possession as a whole’ and that
this is usually the defining factor between a lease and a licence5
. As stated in AG Securities v
Vaughan6
, independently signed agreements do not usually infer exclusive possession. It is
stated that the flat has three bedrooms, with Mark and Sam each occupying a room of their own
and an empty room for Henry to find another occupant as stated in the contract. The courts
have been critical of these clauses, often looking out for ‘sham clauses’7
which are used as an
attempt to limit agreements to licences. However, as there is an empty room, it is possible for
Henry to act on this clause meaning it could be legitimate8
. It also clearly states that Henry has
in fact been showing potential roommates around the premises, indicating that not only can he
act on this clause, but he actually intended to with Mark and Sam being unable to prevent any
new occupancy. Due to the weekly payment of rent, it appears that Mark and Sam are held on
a Contractual Licence with the right of access in return for valuable consideration9
, in this case;
rent.
It is possible for the court to create and injunction against the landlord if it feels the notice to
quit is unreasonable or ‘unauthorised’ as explained by Lord Uthwatt10
. So to avoid being
delayed by this, Henry must abide by the requirements of section 5(1a) of the Protection from
1
Roger Sexton and Barbara Bogusz, Land Law 3rd
Edition, (OUP, Hampshire 2013) 359
2
Wells v Kingston upon Hull [1875] LR 10 CP 402
3
Judith Bray, Key Facts: Land Law 4th
Edition, (Hodder Education, London 2010) 100
4
Street v Mountford [1985] 1 AC 809
5
(n 1) 355-359
6
AG Securities v Vaughan [1990] AC 417
7
Antoniades v Villiers [1990] AC 417
8
Aslan v Murphy [1990] 1 WLR 767
9
Hurst v Picture Theatres Ltd [1915] 1 KB 1
10
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173

2. Land Law Coursework 2013|Law LLB Full Time
2
Eviction Act 197711
and serve a written notice giving at least four weeks to vacate the
property12
.
It is a similar situation with the agreement signed by David and Peter. Whilst prima facie it
would appear that they do in fact enjoy exclusive possession, as it is the two of them sharing a
flat with only two bedrooms, they have accepted cleaning services from Henry as part of their
agreement. Referring to arguably the most prominent precedent in the lease/licence debate,
Lord Templeman’s judgment from Street v Mountford13
, it is a clear statement from the court
that an ‘occupier is a lodger if the landlord provides attendance or services’. The idea of Peter
and David being lodgers is further supported by Lord Donaldson’s verdict in Aslan v Murphy14
asking to consider the intent behind the landlord retaining a copy of the key, as keeping a key
for simple day to day inspections and emergencies would not be enough to constitute a lodger15
.
As this is the only flat Henry retained a key to, it is most likely that it was for the purposes of
providing the services and David and Peter should, therefore, be considered lodgers and
therefore treated as a licensee16
as previously affirmed by the courts17
.
This means that Henry’s approach to eviction should be the same as described above with Mark
and Sam. In order to avoid the risk of incurring an injunction from the courts18
, Henry should
serve a written notice of at least four weeks to comply with section 5 of the Protection from
Eviction Act 197719
as amended by section 32 of the Housing Act 198820
.
The final agreement to be reviewed is the contract for the one bedroom flat signed by Paige
and John. This is a far more complicated situation than that of Mark and Sam or David and
Peter. Is it not clear whether upon moving out John served his notice to quit or not, which
would spawn further problems, but as there is no explicit mention of it this answer will assume
that he has not.
Despite the agreement calling itself a ‘licence’, Templeman stated in Street that this is a moot
point21
and that arrangements are to be decided on what they are and not by their title22
. He
exemplified this point using the well-known scenario of a manufacturer creating a pronged
gardening tool, explaining that this would be a fork regardless of what the producer decided to
call it23
. During his judgment, Templeman discussed the importance of exclusive possession,
as mentioned earlier, in deciding what type of agreement has been created. Prima Facie, Paige
and John were not granted exclusive possession of the flat as Henry included the same clause
11
Protection From Eviction Act 1977 s.5(1a)
12
(n 11)
13
(n 4)
14
(n 8)
15
(n 8)
16
Martin J Dixon, Gerwyn Griffiths and Emma Lees, Q&A Land Law 2013-2014, (Routledge, Oxford 2013) 92-
95
17
P.H. Pettit [1989] All ER Rev 184
18
(n 10)
19
(n 11)
20
Housing Act 1988 s.32
21
(n 4)
22
(n 1) 356-357
23
Barry Purkiss, Lease or Licence/Fork or Spade?, http://www.chadwicklawrence.co.uk/legal-
update/property/lease-or-licence-fork-or-spade/ 01/12/13

3. Land Law Coursework 2013|Law LLB Full Time
3
granting him the power to introduce another occupier. However, it is stated that the flat only
has one bedroom so it is likely that the court would find that this provision was a ‘sham’ as
stated in Antoniades24
as it is not realistic to introduce another person into the premises and
will probably find Paige and John to be joint tenants as opposed to licensees. This is further
supported by the presence of the three basic requirements of a lease, described by Sexton and
Bogusz as an estate for a duration, a grant of exclusive possession and possessing the correct
formalities25
. An estate for a duration can include periodic tenancies26
as defined by Prudential
Assurance27
as ‘a lease for one period which goes on renewing itself automatically’28
which is
what Paige and John currently possess on a weekly basis. The present formalities include the
existence of a written document which, whilst not actually required for a shorter lease29
, would
serve as further evidence of this agreement being a lease.
In regards to evicting Paige (and John), the scenario states that ‘6 months have passed’. This
means that the agreement will have moved beyond the 6 month protected term found in Assured
Shorthold Tenancies set out in section 21(5) of the Housing Act 1988 automatically imposed
on all new tenancy agreements by the Housing Act 199630
. This means that Henry may now
serve notice to quit on Paige. However, the notice he has already served her is invalid as it only
give her two weeks. To terminate a periodic tenancy, notice must be served under section 21(4)
of the Housing Act 198831
. As stated in the statute, the section contains strict guidelines which
must be adhered to. These state that the notice must be served in writing32
and must contain a
specific date33
which is ‘no less than two months after the notice was given’34
. The other
requirement from the statute is that the specified date must be the ‘last day of a period’35
. This
means that if Henry collected his rent on a Monday, the date specified must be a Sunday.
Stating the first day of the period is described as a common ‘fatal’ mistake made when serving
these notices36
and will mean the landlord must restart the notice period, delaying the process37
.
This critical factor of citing the last day of the period was affirmed in Fernandez v McDonald38
despite claims of this being an ‘absurd rule’39
. It was justified by Lord Justice Hale by
explaining that the statute requires the landlord to state the date that possession is required
after, not on40
, and only following this date can the court intervene should the tenant refuse to
24
(n 7)
25
(n 1) 345
26
(n 4)
27
Prudential Assurance Company Ltd v London Residuary Body [1992] 2 AC 386
28
(n 1) 348
29
(n 1) 345
30
(n 1) 354
31
Housing Act 1988 s.21(4)(a)
32
(n 31)
33
(n 31)
34
(n 31)
35
(n 31)
36
Michael Walsh, Section 21 or bust?, http://www.newlawjournal.co.uk/nlj/content/section-21-or-bust
26/11/13
37
(n 36)
38
Fernandez v McDonald [2004] 1 WLR 1027
39
(n 36)
40
(n 36)

4. Land Law Coursework 2013|Law LLB Full Time
4
leave. Following rulings such as Lower Street Properties v Jones41
and Notting Hill Housing
Trust v Roomus42
, it is now consider good practice to include a ‘saving formula’43
. An example
of this was used in Elias v Spencer44
where the phrase ‘After: 22ND NOVEMBER 2008 or, if
this notice would otherwise be ineffective, after the date being the earliest date not earlier than
two months after the date of service of this notice when shall expire a period of the assured
shorthold tenancy’45
was enough to avoid the error the landlord made of using the 22nd
when
the 21st
was, in fact, the last day of the period46
. Henry only needs to serve the notice to either
Paige or John, as serving notice to quit on one joint tenant will terminate the other tenant’s
agreement too47
.
To summarise, Henry must serve four weeks’ notice to Mark, Sam, David and Peter to ensure
a valid notice to quit under section 5 of the Protection from Eviction Act48
and two months’
notice specified to end on the last day of a rent period to Paige and John to ensure he does not
conflict with section 21(4) of the Housing Act 198849
. After these periods of notice, if he finds
any of the tenants are refusing to leave he may apply to the court for a possession order and
begin taking legal action to empty the flats50
.
With regard to the question of what would differ if Henry’s mother was the owner and Henry
let out the flats without her permission, it would be beneficial to consider the case of Bruton51
.
This case gave rise to a ‘Bruton style’ or ‘Personal’ lease52
. This lease is described as a
‘Contractual tenancy’ or ‘Non propriety lease’53
and is held to be a binding lease between the
two contracted parties but is incapable of being more than a licence on any third parties, i.e.
the actual owner of the property54
. In short, this agreement would still be binding on Henry as
Hoffman states that the lack of a propriety interest is insufficient to prevent the creation of a
lease55
. As far as Henry’s mother would be concerned, Lord Scott in Kay v Lambeth56
explains
that while enforceable on the party who entered the agreement it cannot bind any third party
who had not consented or ordered the exchange of documents57
. This means that while it is
binding on Henry, it cannot be binding on his mother. While there is no explicit precedent for
41
Lower Street Properties v Jones [1996] 28 HLR 877
42
Notting Hill Housing Trust v Roomus [2006] 1 WLR 1375
43
(n 36)
44
Elias v Spencer . [2010] EWCA Civ 246
45
(n 44)
46
Tessa Shepperson, Section 21 Possession Notices – At Last a Sensible Decision,
http://www.landlordlawblog.co.uk/2010/03/22/section-21-possession-notices-at-last-a-sensible-decision/
26/11/13
47
Hammersmith LBC v Monk [1992] 1 AC 478
48
(n 11)
49
(n 31)
50
PIMS, Unlawful Eviction, http://www.pims.co.uk/Landlord-Unlawful-Evictionof-Tenant 10/12/13
51
Bruton v London & Quadrant Housing Trust [1999] 2 All ER 481
52
(n 1) 359
53
J.P. Hinojosa, The Leasehold Estate,
http://global.oup.com/uk/orc/law/land/sayles_concentrate2e/resources/keydebates/ch06/ 27/11/13
54
Martin J Dixon, Modern Land Law 8th
Edition, (Routledge, Oxford 2013) 217
55
(n 51)
56
Kay v Lambeth LBC [2006] 2 WLR 570
57
(n 56)

5. Land Law Coursework 2013|Law LLB Full Time
5
the effect of Bruton on licences, it has been described that the case ‘blurred the boundaries’58
between contractual licences and contractual tenancies. It could mean that it will be a similar
situation with the licences, still having hold over Henry but not infringing on his mother.
In answer to the second hypothetical situation, if Henry had included no services for David and
Peter it could be argued that they would have a similar situation to Paige and John and find
themselves with a lease rather than a licence. This is due to the presence of the three basic
requirements59
,especially the existence of exclusive possession due to there being two people
with two agreements for a two bedroom flat meaning that Henry couldn’t realistically introduce
a third60
. As covered in section 11 of the Landlord and Tenant Act 198561
, in tenancies of seven
years or less there exist several covenants implied on them requiring the landlord to keep the
structure, exterior, heating system and installations in working and acceptable order62
. A
damaged window could, in itself, be deemed a fault with the structure of the building63
. Failing
this, any damage caused as a result of the leaking water to any drywall or flooring could
possibly be submitted to the court as structural damage64
. In this scenario, Henry would be
bound by law to fix the problem for the tenant. It would be advisable for Henry to correct this
before serving any notice to avoid occurring an injunction65
or any counter action which could
not only slow the process down but also come at a financial cost to Henry66
before following
the same notice process as Paige and John, serving under section 21(4) of the Housing Act
198867
as opposed to the four week written notice for licences of a dwelling68
.
In conclusion, to avoid any errors which could possibly delay the vacating of the flats Henry
must adhere to the respective statutes for each agreement; section 5 of the Protection from
Eviction Act69
’s four weeks written notice for the two licenced flats of Mark, Sam, David and
Peter and the two month notice dated for the end of a rent period for Paige and John as per
section 21(4) of the Housing Act 198870
. Had he rented the flats out without the permission of
his mother, it is likely following Bruton71
that Henry would still be bound to these contracts
whilst his mother would not be as, under Kay v Lambeth72
, he acted of his own accord and not
by her request. For the event that services had not been included in David and Peter’s
agreement, Henry would have been bound to fix the window under section 11 of the Landlord
58
(n 53)
59
(n 1) 345
60
(n 7)
61
Landlord and Tenant Act 1985 s.11
62
(n 61)
63
Irvine’s estate v moran (1992) 24 HLR 1
64
Grand v gill (2011) 1 wlr 2253
65
(n 1) 386
66
(n 1) 386
67
(n 31)
68
(n 11)
69
(n 11)
70
(n 31)
71
(n 51)
72
(n 56)

6. Land Law Coursework 2013|Law LLB Full Time
6
and Tenants Act 198573
before serving a section 21(4)74
notice or risk counter action such as
an injunction as it likely this would now be viewed as a lease rather than a licence.
73
(n 61)
74
(n 31)

7. Land Law Coursework 2013|Law LLB Full Time
7
Bibliography
Judith Bray, Key Facts: Land Law 4th
Edition, (Hodder Education, London 2010)
Martin J Dixon, Modern Land Law 8th
Edition, (Routledge, Oxford 2013)
Martin J Dixon, Gerwyn Griffiths and Emma Lees, Q&A Land Law 2013-2014, (Routledge,
Oxford 2013)
J.P. Hinojosa, The Leasehold Estate,
http://global.oup.com/uk/orc/law/land/sayles_concentrate2e/resources/keydebates/ch06/
27/11/13
PIMS, Unlawful Eviction, http://www.pims.co.uk/Landlord-Unlawful-Evictionof-Tenant
10/12/13
Barry Purkiss, Lease or Licence/Fork or Spade?, http://www.chadwicklawrence.co.uk/legal-
update/property/lease-or-licence-fork-or-spade/ 01/12/13
Tessa Shepperson, Section 21 Possession Notices – At Last a Sensible Decision,
http://www.landlordlawblog.co.uk/2010/03/22/section-21-possession-notices-at-last-a-
sensible-decision/ 26/11/13
Roger Sexton and Barbara Bogusz, Land Law 3rd
Edition, (OUP, Hampshire 2013)
Michael Walsh, Section 21 or bust?, http://www.newlawjournal.co.uk/nlj/content/section-21-
or-bust 26/11/13