Lease and other Relationships

• Pages: 523-569

LEASE AND OTHER RELATIONSHIPS

ESSENTIALS OF ALEASE

In the words of Lord Hoffman in Bruton v. London & Quadrant Housing

Trust 1

A“lease” or “tenancy” is a contractually binding agreement, not referable

to any other relationship between the parties, by which one person gives

another the right to exclusive occupation of land for a fixed or renewable

period or periods of term, usually in return for a periodic payment in

money. An agreement having these characteristics creates a relationship of

landlord and tenant to which the common law or statute may then attach

various incidents.

Lord Templeman expressed the same view in Street v. Mountford 2

[t]o constitute a tenancy the occupier must be granted exclusive possession

for a fixed or periodic term certain in consideration of a premium or

periodical payments.

There are three elements of vital importance for a valid lease, which appear

in these dicta, viz.:

(a) certainty of duration (fixed term);

(b) rent;

(c) exclusive possession.3

Certainty of duration (fixed term)

Alease must have a defined term; it should have a certain beginning4and a

certain ending.5The principle underpinning this requirement of certainty

1[2000] 1 A.C. 406, 413.

2[1985] A.C. 809, 818E.

3Lord Hoffman inadvertently used the concept “exclusive occupation” and “exclusive

possession” interchangeably. Though there is a vital distinction between the two in the

case law on landlord and tenant.

4Chew v. Richmond [1962] Law of Guyana Report 31. Where there is no specified

commencement date, it is presumed to start on the assumption of possession: James v.

Lock (1977) 246 E.G. 395, 397; Jopling v. Jopling (1909) 8 C.L.R. 33, 39.

5The term is not required to be of any particular length, provided the precise time when it

will end is pinpointed and can be ascertained. It can be as short as three days or three

hours: Boylan v. Mayor of Dublin [1949] I.R. 60, 73, or as long as 10 million years: Guinness

Book of Records, 1993 (London, 1992), p. 186.

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of duration is that the parties should know where they stand in relation to

the duration of the grant, and the courts should also know what to enforce.

It cannot be granted in perpetuity. The concept of a lease in perpetuity is

foreign to the common law. It was pointed out in Sevenoaks, Maidstone and

Tunbridge Railway Co v London, Chatham, and Dover Railway Co:

Now we have not by law any such thing as a lease in perpetuity. We have

a fee simple subject to a rent-charge, and we have a lease for years, but we

have no such thing as a lease in perpetuity.6

This is to safeguard against the possibility of defining the duration of

a lease in such wide terms as to make the land in question sterile, i.e.,

making its utilisation and management difficult over an uncertain period

of time. Widely defined duration can also be misconstrued to have

conferred a term of indefinite duration contrary to the well founded

expectation of a party who might have thought that they had granted a

short term.

The maximum duration for the enjoyment or use of the property by the

tenant has to be ascertainable from the outset. It was so held in Lace v.

Chantler,7where the grant was made for the duration of the war. The term

was uncertain and therefore void. For it was not possible to predict at the

time the grant took effect how long the war would last so as to ascertain

the precise time when the grant would determine.

The certainty of a lease as to its continuance must be ascertainable either

by the express limitation of the parties at the time the lease is made, or by

reference to some collateral act which may, with equal certainty, measure

the continuance of it, otherwise it is void.8

This same principle was followed and applied in the Jamaican case of

Knight v. Pratt.9The agreement in this case, which was signed in 1939,

gave the plaintiff the right, “for the duration of the present war against

Germany”, to work and plant such plot of the defendant’s land as might

be allotted to him for his own benefit. After the cessation of hostilities in

the war against Germany in 1945, the defendant’s cattle were depastured

on the plaintiff’s cultivation, destroying the crops planted by the plaintiff.

In an action for damages for the destruction of the crops and wrongful

eviction, the defendant contended that the plaintiff was a tenant, and his

tenancy expired on the cessation of hostilities and not when the war ended,

and that the plaintiff thereafter became a tenant on sufferance.

It was argued that the tenancy agreement was void for lack of a

definite term, and for that reason the plaintiff became a tenant-at-will, and

6(1879) 11 Ch. D. 625, 635.

7[1944] K.B. 368.

8Lace v. Chantler [1944] K.B. 363, 371.

9(1946) J.L.R. 57.

Commonwealth Caribbean Land Law

524

could therefore be evicted at any time even before the end of the war.

The plaintiff succeeded in his claim for damages. The court held that the

agreement did not create a tenancy. It was a licence of indefinite duration,

which entitled the plaintiff to a reasonable time to harvest and remove his

crops from the land.

the agreement lacked three of the requisites of a lease; a definite or ascer-

tainable duration, and definite thing demised, and exclusive possession”.

As a licence, Exhibit 1 is not affected by the rule which requires the term of

a tenancy to be ascertainable.10

Lord Denning followed Lace v. Chandler in Binions v. Evans11 and held:

In order to create a leasehold interest, it must be for a definite term of years.

It must be expressed with certainty and specifically, or be capable of being

ascertained with certainty at the time when the lease takes effect.12

Periodic Lease or Tenancy

Aperiodic lease or tenancy has a prefixed term which continues

indefinitely at the end of each term until it is determined by either party.

For example, a monthly tenancy continues from month to month, and a

weekly tenancy is enjoyed from week to week, until it is ended by proper

notice, and so is a yearly or quarterly tenancy, which endures from year to

year or quarter to quarter until either party determines it.13

Aperiodic tenancy is not affected by the vice of uncertainty because

each party is capable of determining the tenancy on the expiration of

the term of each unit; the term subsists at the pleasure of the parties,

who notionally make a new agreement as and when each unit lapses by

effluxion of time.

It is, however, of the essence of a periodic tenancy that both the land-

lord and tenant reserve the right to determine it by giving the regular

notice. If a tenancy is not determinable at the pleasure of either party

serving the requisite notice, or if one party only has the power to deter-

mine, it is void.14 Thus, for a yearly tenancy to be valid, it should be within

the power of both the landlord and the tenant on the expiration of the first

year or any subsequent year of the tenancy to terminate the tenancy by

six months’ notice in the absence of any contrary intention.

10 (1946) J.L.R. 57, 60.

11 [1972] 2 All E.R. 70.

12 [1972] 2 All E.R. 70, 74.

13 See p. 526.

14 Doe d. Warner v. Browne (1807) E.R. 305; Cheshire Lines Committee v. Lewis & Co. (1880) 50

L.J.Q.B. 121; Prudential Assurance Co. Ltd. v. London Residuary Body [1992] 2 A.C. 386 in

which the House of Lords overruled Re Midland Railway Co.’s Agreement [1971] Ch. 725.

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