Law Sessions With Jennifer Housen’s Podcast

Breaking Down Leases vs. Licenses: Your Guide to Acing Land Law Exams

Subscriber Episode • • Jennifer Housen • Season 11 • Episode 3

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Land law exam success depends on recognizing what's being asked and responding appropriately, whether it's an essay or problem question about leases and licenses.

• Essay questions require focused analysis of the specific point raised, not general knowledge dumps
• Street and Mountford established exclusive possession for a term at a rent creates a tenancy
• Consider instances where exclusive possession exists but doesn't create a tenancy
• Problem questions benefit from the IRAC method (Issue, Rule, Application, Conclusion)
• Always address all elements even if you believe one requirement hasn't been satisfied
• Make formal legal submissions rather than casual assertions
• Registered land mentions require discussion of the Land Registration Act 2002
• Distinguish proprietary rights (leases) from non-proprietary rights (licenses)
• Focus on advising the specific client about their current situation
• Premium service subscribers can request sample answers to questions discussed


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to this third segment in Land Law, answering Exam Questions. We have already considered how you would approach an easements question and in this section we will now consider answering a lease question, which generally you will find on any land law exam question. One of the good things about land law, of course, is that they tend to be fairly freestanding. There are, of course, overlaps, for example, legal equitable interest and making sure that you are looking at registered and unregistered land. Now I will actually go out on a limb here and answer two questions for you, the reason being I want you to look at an essay and I want you to look at a problem question. The difficulty for me sometimes when I speak with law students is that I find persons who've studied an area of law, or they've prepared an area of law, rather, and then, if it comes as an essay, they completely panic and then they avoid the question like the plague and then answer a problem question that they know nothing about, and of course, that then prejudices their mark. What I want you to do is to consider that if you prepare for a particular area so let's say you say right, I'm going to take on leases and licenses and you've prepared for it, then, whatever it comes as whether an essay or a problem, you should answer it. I'm going to return to the University of London, llb, past exam papers and I am going to touch on a question from 2008,. Question six from 2008. It's an essay question and it asks this when the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term utterant, the result is a tenancy.

Speaker 1:

Elaborate on this statement and consider the extent to which it provides a useful guide for distinguishing a tenancy from a license, or rather a license. Well, what it was was a very good question if you were prepared for leases. What it was not was an invitation to write everything you know about leases. Now, if you had prepared for this area, for example, you would, of course, have recognized that this was a quote from Street and Mountford. But even if you didn't know that it was from Street and Mountford, it wasn't fatal. Or even if you forgot, or the case escapes you, as happens in exams, what is important is what is the question being asked? The question being asked is asked. The question being asked is elaborate this statement and consider the extent to which it provides a useful guide for distinguishing a tenancy from a license. The significance, of course, when you consider subsequent cases, is that in the context of the question, you would look at subsequent cases where there is exclusive possession but not a tenancy. So you would look at, for example, where service is provided, where the person is a lodger, where you're looking at occupancy with your employment or an act of friendship, and then the important point is that you draw the distinction from a license. So agreements where there have been a tenancy, but it's been a sham but they've called it, for example, a license. You would, of course, need to consider that briefly. So other things you need to consider would be things such as, or cases such as, rather, antoniades and Villiers and AG Securities and Vaughan. But you want to push for the big box and you want to consider the Bruton type tenancies from Bruton and London and Quadrant, because what you see is a blurring of the lines with this new distinction between proprietary and non-proprietary leases. So in the answer, words like extent and useful guide and license distinct from a lease should undoubtedly be used.

Speaker 1:

Now, these show focus on the question. It shows focus on the question asked rather than a general answer. Now, that is a typical sort of law exam questions that you will get in an essay. It makes a statement and then it will either say discuss, or it makes a statement and then it has a second part to it. Of course, like I said, it is not an invitation for you to write generally. You focus on the specific question. If you had prepared this area, that would have been a question to focus on, but the devil is in the detail and the fact is you should really answer the question asked. All right, I promised you a problem question as well. A problem question as well. If I focus on question four of the University of London. Past exam questions in 2004,. Question four we see a question which reads as follows Raffles had an empty cottage on his Whiteacre estate in brackets registered land and when he heard that his old friend Buffin was out of work and looking for somewhere to live, he wrote to him offering him the cottage.

Speaker 1:

I have no use for the cottage at present, he wrote, so you could stay there indefinitely. I would charge you just a nominal weekly rent, but I would expect you to keep the cottage and garden in good condition. I shall keep a key to the cottage just in case I ever need to get in. I ever need to get in. Buffin accepted the offer, went into occupation of the cottage and for the next two years he lived there and carried out his side of the agreement. Recently, ruffles sold Whiteacre Estate, including the cottage, to Slingsby, expressly subject to Buffin's rights. Slingsby has now given Buffin notice to quit and you are asked to advise Buffin Now. Then what is your task? Your task is to advise Buffin, not write a treatise on leases. So start by advising Buffin Now. Remember the main reason you're advising him is because, again, go to the end. You're advising him because Slingsby has now given him notice to quit.

Speaker 1:

The danger for the average law student is to discuss what is a lease, what is a license, and apply it to the facts. That would not be incorrect. In fact that would be commendable. But you would not have fully answered the question if you didn't then say what was the position now with Slingsby, because that is really what Buffett needs to be told about. Clearly, looking at the lease license distinction, you would then use that to answer the question. So you would have to flag up the fact that a lease gives you a proprietary right. You would flag up that a license is a non-proprietary right, and if you're really pushing for big marks, you might even want to consider the context of whether a Bruton type tenancy might need to be made any mention of here. Now you need a proprietary right to defeat Slingsby. So then what I would suggest you do is you IRAC?

Speaker 1:

What is a lease? We know the three requirements in Street and Mountford and you know that you would need to consider them. So the issue is it a lease, is it a license? Then you look at the rule, the three requirements You've got to look at. Have they been met? So you look at the issue with the key being retained and its effects, and you look at whether or not that goes to affecting, for example, exclusive possession. You consider as well was it an act of friendship, was it an act of generosity? Because again, those go to impacting whether or not there's exclusive possession or even if there's exclusive possession, things that might negate against there being a tenancy.

Speaker 1:

Then, of course, the next requirement would be that you look at the certainty of terms. What is the effect of the statement the examiner is given that says I have no use for the cottage at present. He wrote so you could stay there indefinitely. Address that, and then you are told I would charge you just a nominal weekly rent, but I would expect you to keep the cottage and garden in good condition. Now, did Puffin have a lease? You would have to look at whether the requirements have been met and lastly, the examiner explicitly tells you that it is registered land. You honestly cannot get any better than that. Now the examiner tells you that it is registered land, so you would need to discuss any effect this would have in respect of Slingsby under the LRA 2002. And so again, if it is, more often than not, as I've said in the first segment, we tend to look at interests which override, for example. So if you've managed to suggest that by some stretch of the imagination it is a legal lease, for example, or let's say it's a three-year lease, or however you've discussed it, it may very well fall under Schedule 3.

Speaker 1:

Now then, once you've done that discussion, you make submissions. It's very important to make submissions. It makes your writing clean, it makes it neat. You need to suggest to the examiner that you know the issue is whether or not it's a lease or license. You say what it is, you then apply it and you say, on the facts, it is it. And you say on the facts it is submitted that, or on the facts I would suggest that, or in all the circumstances it would appear. But you should never say I think it is a lease because I think is not formal legal writing.

Speaker 1:

So you make submissions, even if in your mind you think it is a license from the start, there are facts which still need to be discussed. And so let's say you look at the exclusive possession point and you decide well, I'm happy, he's not in exclusive possession. You can't stop there and say, well, that's it, mr Examiner, you didn't get past the first hurdle, I don't need to go any further. No, you cannot stop there. You've got to say, well, you've got to look at it and discuss it and say, for example, well, in any event, and carry on. So you can't stop there, discuss it, you've got to discuss the other two points where the facts are clearly requiring that there is a discussion that needs to be made.

Speaker 1:

So even if you say that on the basis of exclusive possession it is unlikely that there is a lease, you still need to link in order to carry on to discuss the certainty issue and the time issue. So you would say, for example, something like even in the unlikely event it is found that there is exclusive possession, buffing would still need to show that there was a certain term for it to form a lease and, of course, you then move on. That, I would suggest, is how you would approach a lease's question in that form, question in that form. Again, I would remind you that if you are in fact signed up to our premium service, then you can contact us to request a copy of a sample answer to the question that we've just gone through, which, again, I have endeavored to write under timed conditions of 35 minutes or less. We will now take a short break and after the break, we will consider our last question, a question relating to co-owners, and we will focus on severance.