The distinction between having a tenancy and a simple permission to enter premises known under English law as a licence; is defined by the case of Street v Mountford. This case sets out the requisite, which is required in order to create a tenancy, one...

The case law I will apply to explain by reason will be Cobb v Lane . In this case an owner of a house let her brother occupy the property (Just as Jade has done for her nephew) rent-free. It was held that the intention of the parties was not to enter or to create a legal relationship in the terms of a lease. Jade has not given her nephew exclusive possession of her land nor is her nephew paying any monetary value of rent, even though it’s not an essential ingredient for tenancy but is under the Housing Act 1988 and Rent Act 1977.

The first two requirements (Exclusive Possession & An Obligation to Pay rent) has not been satisfied according to the case of Street V Mountford, nor has she set out a term for tenancy, which is required. Jade has clearly given her nephew a licence to stay in her house for the period of time she is away in India but nothing that would give her nephew security of tenure under the Housing Act 1988 or the Rent Act 1977. The courts tend to disregard the family/friends agreement as lease, but there has been a case where it did create a tenancy.

(ii)

The case scenario involving Graham, a mentally unbalanced man who is living in a house with four others under supervision, is similar to a lodger but the difference being Graham is under care. To understand whether Graham has a licence or a lease it would be natural to consider whether he has exclusive possession of a separate dwelling. Although there is no statutory definition of a dwelling, case law has helped to point the courts to the meaning. The case of Uratemp Ventures Ltd -v- Collins, Same -v- Carell, states that cooking facilities would be an essential element in deciding whether it was a dwelling. Graham has a room with en suite and cooking facilities. Along with this and the weekly rent I would in normal circumstances suggest he has lease rather than a licence, he lives in a self-contained room with others in house and enjoys exclusive possession of his room. This however can be argued; he is situated in this house due to his medical needs and lives with others in a similar mental state. He doesn’t have total exclusive possession since he is under supervision when he cooks. The distribution of the rent has to be also questioned; the full value cannot possibly go on his accommodation but also to the care he receives. This means he receives services for the rent he pays, just as a person would in a hotel or that of a lodger, the case of Westminster City Council v Clarke, helps me further to come to my conclusion that Graham in fact has a licence and not a lease. The case was about a council hostel for homeless single men, with a licence stating termination with seven days written notice. There was no right of exclusive possession and it incurred the same right as a lodger. The hostel was to be used as temporary accommodation until the men were able to get back on their feet. This is the same with Graham he would not be in that home if he were a mentally balanced man, and would be expected to leave when he gets better.

(iii)

To establish tenancy for Ted and to give him protection under the Rent Act 1977 and the Housing Act 1988 he must satisfy the three requirements set out in the case of Street v Mountford 1985. Ted lives in a flat part of a tower block and he pays rent to a housing company. He will have the grant of exclusive possession provided the landlord has no rights to enter the property besides the right to repair or unless the right to seek possession. He pays rent but it doesn’t state whether he has term which is the third requirement set out by the case. This scenario is slightly difficult in deciding whether the agreement is a mere licence or tenancy. Since the introduction of the Rent and Housing Act landlords have set out to disguise agreements as licences when actual fact it is a tenancy. So although in writing it states the agreement is a licence the courts will take the realities of the accommodation when deciding a case.

A case that resembles similar facts, as Ted’s is the case of Family Housing Association v Jones 1990.