Property Law





Property Law

The distinction between leases and licenses was best laid out in the Street v Mountford and Westminster City Council v Clarke [1992] 2 AC 288 House of Lords declarations (Smith, 2003). Smith (2003) observed that in the Street v Mountford ruling, leases were associated with tenancy that amounted to the right of exclusive possession of the properties for a predetermined fixed term. In the Westminster City Council v Clarke, Smith (2003) observed licenses as a mere agreement of accommodation as opposed to exclusive possession of the property granted for accommodation. Under a lease accommodation, the occupier of the properties would have exclusive rights in how the properties were managed or developed. However, under the license scenario, the occupier would have to oblige to conditions set out on how to associate with the property. A license would mean that the occupier has been granted the rights of accommodation with a limitation to the rights enjoyed under the lease scenario.

Property guardians are much interested in working with the occupiers under a context that gives them more power, ownership, and security as opposed to the occupier. Under such considerations, the property guardians insist upon licenses for their occupiers. The ideology is for the property guardians to ensure that the occupiers do not have more rights than them. Under a tenancy term, the occupier would be obliged to act as per the guardian conditions or otherwise the agreement would be revoked as per the binding license terms.

With the existence of predetermined conditions in the license context, it would be hard to distinguish an agreement being a lease or a license (Smith, 2003). Two main factors stand up while distinguishing the agreement differences in a lease and a license. The first factor is the mode and duration of payment and the second factor is the exclusive possession factor of the property. Under the license scenarios, the guardians request for a fee as opposed to requesting for rent. Under the license binding, the occupier has zero possession of the property. On the same note, the occupier right to accommodation can be provoked if they go against the conditions set out by the guardian in the license terms. Under the lease scenario, the occupier pays a rent for a prescribed duration and has exclusive possession of the property

With regard to exclusive possession, the case of Antoniades v Villiers 1990 provides a turning point by illustrating that some unrealistic conditions in a license can turn the agreement to a lease. More so, the case of Antoniades v Villiers 1990 helps in creating a need to draft realistic conditions by the guardian of the property and the occupier to be keen about the terminologies and conditions therein in the agreement. Antoniades v Villiers 1990 ruling provided and cautioned that the legal binding of a license only provided an exclusive occupancy, which could not be changed merely on the condition that the occupier and the guardian presumed it to be a tenancy.

The three cases offer important lessons that points into the direction of the impact and effect of terminologies used in an agreement. For example, in the case of Street v Mountford,    the overlapping of rights was witnessed due to the effects of the words used in denying the occupier exclusive possession. In addition, with increasing insecurity, property can be used as a platform of unjustified enrichment. Parties engaging in a property agreement must be careful in how they interpret the words and effects of words used in the agreement.

Through the utilization of Birks 5 keys to land law of time, space, reality, duality, and formality found in Birks (2000), the ruling of Antoniades v Villiers 1990, Street v Mountford, and Westminster City Council v Clarke provides important lessons in land law. The lessons are in the scope of the need to understand and be cautious of strategies that the occupier or the guardian of a property can take to gain illegal exclusive possession and extraction of maximum value from property. Intervention of equity, property rights requirements of limits, the time factor in distinguishing leases and licenses, dissimilarity between personal and proprietary rights, and the need of security were concepts drawn from Birks 5 keys to land law. The five concepts formulated in Birks concept of land law are summarized by the concept of the need to halt unjustified enrichments in the three cases. The Birks concept aims at halting any activity of enriching one entity with property at the expense or loss of justice or legal right of the other party. With the Birks concepts of land law, there arises the need to ensure that the transfer of benefit is only justified through a legal ground. In a scenario where the legal ground turns to be void from the beginning of the agreement, as was the case of Street v Mountford, then there would be no legally relevant defense in place. Under the above consideration, the transaction can be reversed, allowing each party to enjoy a valid legal ground


























Birks, P. (2000). English private law. Oxford: Oxford University Press.

Smith, R. J. (2003). Property law. Harlow, England: Longman.



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