Running Head: Assignment

[Name]

[Institution]

[Date]
 Assignment 2

Table of Contents
With reference to relevant legislation and case authorities, critically discuss and analyse the

requirement of exclusive possession and whether its presence necessitates the finding of a

lease............................................................................................................................................3

Concerning the decision of the Supreme Court in Regency Villas Title Ltd v Diamond

Resorts (Europe) Ltd [2018] UKSC 57, critically discuss and analyse the law relating to the

necessary characteristics of easements.......................................................................................6

References................................................................................................................................11
 Assignment 3

With reference to relevant legislation and case authorities, critically discuss and analyse

the requirement of exclusive possession and whether its presence necessitates the finding

of a lease.

It is best to start with the definition of the terms "lease" and "exclusive possession".

The Land Act 1925 recognises two types of legal ownership: freehold and exclusive

possession. Freehold tenure provides that the occupier has exclusive possession for a

specified period, known as "absolute years". The tenant may be called a "tenant" or "tenant-

owner". The main authority on leases is Street v Mount Ford, in which the House of Lords set

out the test for determining the difference between a contract or lease and a licence. The

House of Lords held that a lease or licence exists where a contract is intended to create a legal

relationship and the user is granted the right to exclusive possession of the property for a

fixed or irregular period in return for a rent. Anything else is considered exclusive possession.

As a mortgage creates land tenure, the phrase "full period of years" may be seen as

contradictory in the light of Bruton v London & Quadrant Housing Trust. The House of

Lords considered the situation to be unique and the decision and outcome are discussed later

in this article. However, a legal tenancy should normally result in a legal tenancy.

The Law of Property Act requires a specific definition, not an undefined one. Lace v

Chantler concerned with an open-ended lease "for the remainder of the war" which was held

not to be a lease because of the absence of a fixed term. A fixed-term, such as "for 60 years",

is precise wording consistent with property law. Therefore, a fixed date is sufficient; in

Cottage Holiday Associates Ltd v Customs and Excise Commissioners, the courts held that

the use of a cottage for one week per year for 80 years constituted a valid tenancy. In Street v.

Mountford, Lord Templeman highlighted three essential elements for a tenancy to exist.
 Assignment 4

These are exclusive possession (i.e. the right to own to the exclusion of all others, including

the landlord himself). However, it should be noted that the landlord has the right to inspect

the property (e.g. for repairs) within a reasonable time. Although in Appah v Parncliffe

Investment Ltd the landlord reserved the freedom to use the property as he wished, this was

construed as a licence as the occupier did not have exclusive possession. In other words, it

shows that exclusive ownership is not the only relevant evidence of the existence of the lease.

Secondly, an indefinite word must be shorter than that of the licensor.

In addition, the courts have held that any layers added to the contract cannot be taken

into account in favour of the substance or fact. Although Lord Templeman seems to have said

in Street v Mountford that annuity is required, section 205(1) (xxvii) of the Property Act 1925

refers to a period of years "whether or not there is annuity". The Court of Appeal then held in

Ashburn Anstalt v Arnold that the right to collect an annuity is not a necessary function of a

contract or lease.

"A cat does not become a dog just because the parties wish to call it such".

After Street v Mountford, many cases have been decided, all focusing on the

difference between sole possession and tenancy. Many cases involve more than the

application of the rules of Street v Mountford. "Bruton v London & Quadrant Housing Trust"

has been widely criticised as a situation where "the House of Lords ... delivered an

undoubtedly important and divisive judgment". As a lease is a contractual property right, the

issue was whether there could be an agreement between landlord and tenant even if the

landlord was not the owner of the leasehold land from which the property was derived. The

House of Lords held that the parties had entered into a lease. According to Lord Hoffmann, a
 Assignment 5

"lease" "does not deal with the question whether the agreement creates an estate or other

exclusive interest enforceable against third parties".

The agreement stated unequivocally that exclusive possession was granted. This

shows that the right to exclusive custody creates problems for homeless people and others

who share accommodation. The Bruton case cited Westminster City Council v. Clarke, which

upheld the council's right to move the resident's accommodation without notice or to require

the resident to share it with someone else. Furthermore, under the terms of the lease, the

council could access the accommodation at any time. Interestingly, in his keynote speech in

Clarke, Lord Templeman emphasised that this was a "very special situation" which should

not be interpreted as allowing the landlord to escape the limits of the constitutional protection

of possession. In Kay v Lambeth, K lived in a residential property owned by B which was

initially let to a housing authority. Although initially let to the authority, they were tenants of

the authority when B granted them a lease of the property. Later, B terminated the lease and

claimed custody of the property, alleging that K had committed trespass. K claimed that they

were tenants of B after the lease expired, or that this was a breach of their Article 8 rights.

In Bruton, the same facts were found as in Family Private Landlord v Jones. The

Court of Appeal held in that case that a licence was a lease because it had the characteristics

of a contract, as stated by Lord Templeman in Street. S Murdoch held that exclusive use is

confined to land and cannot be granted by a licensor without equity except by applying the

doctrine of estoppel. There have been cases where the application of the concept of Street v.

Mountford has been sufficient. Under Street v. Mountford, it is clear that tenants would go to

great lengths to make it appear that the occupier did not have exclusive possession, perhaps to

circumvent the provisions of the Rent Act. Mackenzie and Phillips, on the other hand, argue
 Assignment 6

that landlords do their best "even if they do not intend to evade the Landlord and Tenant

Act". On the other hand, a mortgage conveys a legal interest in a property, whereas a licence

does not. According to Thomas v. Sorrell, a licence has no value in itself, does not alter or

transfer ownership of anything, but merely makes legal an activity that would have been

illegal without it.

Although exclusive possession was previously held to be the hallmark of a contract,

common law courts have recently recognised that real estate contracts that provide for

exclusive possession as a benefit to the licensee do not automatically convert the legal

agreement into a lease. It is presumed that where exclusive possession is granted for a

specified period and rent is charged, there is a presumption that the parties have entered into a

lease. LJ Denning refers to the decision of Lord Greene MR in Booker v Palmer, where the

circumstances and actions of the parties precluded any attempt to create civil relations. LJ

Denning points out that we have seen several cases in recent years where sole possession

users have been regarded as licensees rather than owners. Therefore, a person in sole

possession, although prima facie a tenant, would not be regarded as such in either case if the

circumstances prevented any attempt to create a tenancy. The parties cannot convert a lease

into a licence simply by changing its name.

Concerning the decision of the Supreme Court in Regency Villas Title Ltd v Diamond

Resorts (Europe) Ltd [2018] UKSC 57, critically discuss and analyse the law relating to the

necessary characteristics of easements.

This appeal allows the court to consider for the first time the extent to which free use

of the sports and recreational facilities of a country club can be conveyed to the owners and
 Assignment 7

occupiers of adjoining timeshare property by easement. In the famous case of In re

Ellenborough Park [1956] Ch 131, the Court of Appeal held that easements could be used to

convey the shared use of a private communal garden to the owners of terraced houses built on

and adjacent to the property. Applying the same property management approach to a much

wider range of practices, in this case, was, if not naïve, much bolder. The critical question, if

this case was correctly decided, is whether the same ground rules apply in this sense (which

the judge in this case and the Court of Appeal found they did) or whether the attempt to do so

breaches the necessary limitations on the scope of easements in English law, which the

Commission warned back in 2011 should not simply be ignored.

My analysis so far finds, as did the lower courts, that the grant of the easement has all

the established grounds of an easement or right of way, as each of the four factors (and the

position of the fourth) is considered separately. However, this leaves open the broader

question of whether the grant of substantial rights to use recreational and sporting facilities in

an adjoining recreational complex is something that the law on easements should cover,

rather than subdividing the issue. The facilities granted in this case indisputably broke new

ground in the form of an easement and went beyond what was defined in In re Ellenborough

Park, and this Court is not bound to apply that decision if it finds that it was wrong in its

reasoning or its application of established principles.

In three important respects, the grant of the mechanism, in this case, is novel

compared to In re Ellenborough Park. First, as Lord Carnwath argues, the size and scope of

the recreational and sporting facilities granted at Broome Park were much greater, and their

maximum use required much greater maintenance than those provided at Ellenborough Park.

An 18-hole golf course and hydrotherapy pool require more management and maintenance
 Assignment 8

than an ornamental garden because of their design, although Ellenborough Park had tennis

courts and rolling green. Secondly, Ellenborough Park was limited to a small number of

dominant operators, while Broome Park's services were open to two and later three different

categories of tenant owners and paying members of the community. Thirdly, the costs of

operation and maintenance at Ellenborough Park were shared between the dominant owners,

whereas at Broome Park it was intended that the servient owners would bear some of the

costs. Furthermore, the allocation, in this case, is limited to a right of "recreation and

enjoyment". This is a purely recreational right (which seeks to treat sport as part of

recreation), although the Court of Appeal in In re Ellenborough Park resisted identifying it in

those terms, choosing instead to describe its central function as the provision of a communal

garden for the terraced houses.

Before making a decision, I must briefly summarise the arguments for and against

extending the law to recognise this additional type of easement. This is consistent with the

view that customary law should tolerate, as far as possible, modern forms of land ownership

and new types of land use. Timeshares, which are primarily for holiday and recreational

purposes, are precisely this new type, and the common law should allow them as far as

possible.

Second, recreational easements have gained wide recognition in the common law. For

example, in Riley v Penttila [1974] VR 547, the Supreme Court of Victoria recognised the

grant of land within a suburban development for recreational purposes over a garden or park

in favour of residential land as an easement, borrowing heavily from the example of In re

Ellenborough Park. The Supreme Court of Canada has recognised the granting of easements

over "coastal reserves" separating properties from a bay to residential properties in

development as an easement, applying the analysis of In re Ellenborough Park "even more

explicitly in the case of a shoreline relevant to a tourist development". The Supreme Court

noted in its declaratory order that "the right so granted requires the right to walk freely along

the entire 'shoreline reserve,' not just the right to enter the waters of Boundary Bay directly

from the edge or frontage Lot 38. Moreover, the rights were not exclusive to the owners of

the lots but had to be shared with certain more exclusive public access rights of the roads that

terminate near the harbour and thus across the riparian reserve.

The Court of Appeal held that this was not the right way to go. In paragraph 40 of its

decision, it stated that the most natural interpretation of the concession would be a grant of

rights in the form of separate easements only over certain sports and recreational facilities

that already existed in the park at the time of the grant. This would then preclude the

construction of additional or replacement facilities in any area of the facility other than the

original facilities, as well as rights to the ground floor and basement of the Mansion House

that were not used for recreational or sporting purposes, such as the kitchen. The court then

examined each of the properties separately and found that each was the beneficiary of a

separate grant of rights corresponding to a different section of the park. Thus, easements were

granted over the Italian park, the tennis courts, the squash courts, the putting green and

croquet lawn, the outdoor pool and the golf course. In contrast, the easements claimed over

the dining room, billiard room and TV room on the ground floor of the villa, and over the

kitchen, living room, gym, deck chairs and sauna in the basement were declared invalid.

Indeed, considered separately, none of these facilities constituted a sports or recreational

facility, with the Court noting that "a restaurant is not the same as a bathroom" and that "the

new physical activity approach is not relevant to indoor recreational sports such as billiards or

television": para. 80. Moreover, the Court of Appeal found that assuming the closure of the

recreational area and the exclusion of the park owners' moveable property, it would be a
 Assignment 10

stretch of the imagination to describe the space occupied by a pool table in 1981 but no

longer in use as a pool hall. The gym was the subject of the same enquiry. Consequently, the

court found that no easement had been granted over the ground floor or basement of the

villain 1981. The existing water feature in the basement had replaced the existing swimming

pool but was located in a separate area from the recreation hall so that the dominant owners

could not acquire any rights over it.

I have already stated clearly my preference for the judge's simple, common-sense

approach. In my view, there is no answer to the judge's terse finding that limiting the levy to

on-site facilities or those proposed in 1981 is impractical and would undoubtedly prevent the

transaction tax from making improvements or replacements or expanding facilities for the

benefit of all users of the park-recreation complex. In my view, the Court of Appeal's

approach of treating the grant of facilities as if it were a grant of separate rights to each of the

facilities affecting separate and distinct areas of the complex circumvents the woods.
 Assignment 11

References

Bruton v. London & Quadrant Housing Trust, 2000 A.C.1 406, 1999 W.L.R.3 150 (2000).

In Re Ellenborough Park, 1956 Ch. 131 (1956).

Regency Villas Title Ltd v. Diamond Resorts (Europe) Ltd, 2018 U.K.S.C. 57 (2018).

Riley v. Penttila, 1974 V.R. 547 (1974).

Street v. Mountford, 1985 E.G.L.R.1 128 (1985).

Westminster City Council v. Clarke, 1992 A.C.2 288 (1992).