EXCLUSIVE POSSESSION IN A LEASE

EXCLUSIVE POSSESSION IN A LEASE

Exclusive possession is one of the fundamental tenancy-landlord law building blocks. The idea is that once a landlord makes a space available for rent, the tenant has sole possession and, subject to the terms of the lease, is free to do anything they choose inside the house (as long as it's legal, of course).A landlord (also known as the lessor) grants the tenant a lease, or as it is also known, a leasehold (lessee).A limited-time right of sole possession is granted to the lessee under the lease.

The three elements of a lease were set out in Street v Mountford. A lease's core quality of exclusive possession serves as its primary point of differentiation from a licence. This distinction is essential since licensees have significantly fewer rights than tenants under a lease. For instance, a lessor's obligation to "keep the structure and outside of the dwelling-house in repair" in a lease.

The "proper touchstone" of a lease or tenancy is described as the privilege of having sole possession of land (Radaich v Smith [1959] HCA 45 per Windeyer J). A tenancy without the right of exclusive possession is illogical because by definition, a tenancy must involve the landlord's gift of exclusive possession. In Street v. Mountford, Lord Templeman stated that the tenant has the right to "keep out visitors and keep out the landlord" unless the landlord is using the restricted rights granted to him by the tenancy agreement to enter, view, and make repairs. Also, Without giving notice, a landlord may enter if they feel it is required to maintain or protect the property.

A lease includes extra responsibilities that "remain unpaid on both sides throughout its currency," in addition to the condition that it grants the leaseholder exclusive possession of the property for a set period of years. However, a landlord will owe their tenant a number of specific obligations. Here, we'll go through a few of the implicit duties that a landlord has toward a tenant.

COVENANT FOR QUIET ENJOYMENT

When a landlord agrees to lease property to a party, he or she also agrees not to take any action that "significantly interferes with the tenant's title to or possession of the demised premises or with his ordinary and legitimate enjoyment of the demised premises." This practically means that the tenant won't be harassed by the landlord or by anybody else until the landlord gives permission. It also includes keeping the tenant's possessions in place and avoiding the property's utilities from being turned off (Perera v Vandiyar [1953] 1 All ER 1109).

COVENANT AGAINST DEROGATION FROM GRANT

The landlord is not allowed to lease the property to a third party under conditions that would make the grant functionally useless. Or, to put it another way, the landlord cannot act in a way that is contrary to the purpose for which the lease was granted or interferes with the achievement of that aim (Chartered Trust plc v Davies [1997] EWCA Civ 2256).

OBLIGATIONS IN RESPECT OF REPAIR, MAINTENANCE AND GENERAL AMENITY

Given that the property is residential and equipped, it must be reasonably fit for occupancy at the start of the lease (Smith v. Marrable (1843) 11 M&W 5). Certain facilities used by the tenant(s) must be maintained by the landlord with reasonable care, such as the elevators in an apartment building. The responsibility is imposed when failure to perform it makes "the entire transaction... inefficacious, pointless, and ludicrous".

WHAT CAN A TENANT DO WHEN THEY ARE PREVENTED FROM EXCLUSIVE POSSESSION OF THEIR RENTAL HOME

One thing that can be made is to break the lease, obtain a restraining order, it depends on the circumstance of each case.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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