The trustees of a tennis club took possession of tennis courts and a clubhouse under a lease, and sought a new lease under the 1954 Act. The landlord said that they were only licensees and in any event were not entitled to a new lease since they were not a business. The agreement clearly and deliberately emphasised that the relationship was that of licensor and licensee.
Held: Though the activity carried on was not a business, the 1954 Act required, when the tenant was a body corporate or incorporate, only that some activity was carried on. The tenancy was protected.
After citing Facchini, Jenkins LJ said: ‘The present case, of course, has nothing to do with the Rent Acts, but the important statement of principle is that the relationship is determined by the law, and not by the label which parties choose to put on it, and that it is not necessary to go so far as to find the document a sham. It is simply a matter of ascertaining the true relationship of the parties.’ and
‘The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence.’
After citing Errington, he said: ‘I think that wide statement must be treated as qualified by his observations in Facchini v Bryson [1952] 1 TLR 1386, 1389; and it seems to me that, save in exceptional cases of the kind mentioned by Denning LJ in that case, the law remains that the fact of exclusive possession, if not decisive against the view that there is a mere licence, as distinct from a tenancy, is at all events a consideration of the first importance.’ and after citing Marchant, he said:
‘But in my opinion in order to ascertain the nature and quality of the occupancy and to see whether the occupier has or has not a stake in the room or only permission for himself personally to occupy, the court must decide whether upon its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.’
Jenkins LJ
[1958] 1 QB 513, [1957] 3 All ER 536
Landlord and Tenant Act 1954
England and Wales
Citing:
Cited – Facchini v Bryson 1952
The court held that in all the reported cases where it was held that an agreement was a licence rather than a tenancy: ‘In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family . .
Cited by:
Cited – Binions v Evans CA 27-Jan-1972
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other . .
Cited – Crancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
Cited – Clear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
Cited – IDC Group Ltd v Clark CA 2-Jul-1992
The court was asked: ‘whether a deed made between adjoining owners and expressed to ‘grant licence’ to the owners and occupiers for the time being of one property to pass over parts of the other in case of fire operated as the grant of an easement . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Leading Case
Updated: 09 November 2021; Ref: scu.216550