A tenant is the 'owner' of land, albeit temporarily and subject to restriction but equally he is a consumer contracting for the provision of 'service'. In Bruton v London & Quadrant Housing Trust1, have upheld the existence of contractual, non-proprietary rights lease where the landlord has no proprietary estate from which to grant a proprietary lease.
However, it must be created in the proper manner and it must satisfy the definition contained in LPA 1925 s. 205(1)(xxvii). The 1925 scheme was reformed in 1986 (Land Registration Act 1986) and again by the 2002 Act, which has been accused of introducing yet more confusion to the law of leases.
There are 3 kinds of lease, legal lease, equitable lease and tenancies by estoppel. Legal lease created by deed, this includes periodic tenancies (LPA 1925 SS. 52, 54). Due to the doctrine of Walsh v Lonsdale2, a contract for a lease operates as an equitable lease without any further action being necessary. The LP (MP) A3 1989 s. 2 supersedes s. 40 of the LPA 1925. A tenancy by estopple operates where the landlord has no title to the land when a lease is granted.
The LRA 2002 has made substantial changes to the formalities required for leases, most of which require registration or protection on the land register. Three types of lease are recognised by the 2002 Act:
Most leases, Leases requiring substantive registration:
Leases requiring protection by a notice on the register.
Short leases, which override the register.
Most leases, which fall outside the scope of compulsory first registration, can be enforced either if protected by a notice on the register or if they fall within the overriding category. The ultimate aim is for as many interests as possible to be entered on the registered. But Leases of three years or shorter cannot be protected by notice and so are 'only' overriding. Short leases (not exceeding seven years) can override the register.
Where the tenant is in actual occupation, this protects his Leases on first registration (Sched. 1 para. 2), or on a transfer either under the 'old' law (LRA 1925 s.70 (1)(g)) or the LRA 2002 (Sched. 3 para. 2).
In Street v Mountford4, Lord Templeman suggested that there are three characteristics of a lease, these are exclusive possession, a determinate period, for a rent or other consideration. Exclusive possession means that the tenant has control over any one who enters the premises and can exclude everyone, including the landlord.
There will be no exclusive possession if: the landlord is entitled to move the occupier at any time from one room to another according to Westminister city Council v Clarke5, there was held to be no exclusive possession. Someone merely has exclusive occupation, such as a hotel guest or a student in a university hall of residence or a resident in a nursing home (Abbeyfield) (Harpenden) Society Ltd v