Read Lord Templeman’s Judgment in Street v Mountford [1985] AC 809 and identify whether a lease

or a mere license exists in the following circumstances. Furnish your answers with quotations from
Templeman’s judgment and other case laws:

1. Joshua owns Damansara House. He contracted with Nadia in a document titled ‘license of
occupation for Damansara House’. In the document, Nadia was granted ‘the right to occupy
the house to the exclusion of Joshua for 8 years, for the payment of RM50,000’.

There is a lease

Lord Templeman in Street v Mountford:

"if the agreement satisfied all the requirements of a tenancy, then
the agreement produced a tenancy and the parties cannot alter the
effect of the agreement by insisting that they have only created a
licence. The manufacture of a five-pronged implement for manual
digging results in a fork even if the manufacturer, unfamiliar with
the English language, insists that he intended to make and has made a
spade". [1985] AC 809 at 819E-F.

See also Bingham LJ in Antoniades v Villiers [1990] 1 AC 417 at 444B:

"A cat does not become a dog because the parties have agreed to call
it a dog".

Street v Mountford pg 821 para f – g (Facchini v Bryson)

2. CK granted a 10 year lease of Caterpillar Haus to John for a lump sum payment of
RM100,000. John lives with his daughter Jane in the property but 9 ½ years into the tenancy,
John passed away, and CK told Jane that ‘you can stay here for another 2 years until you get
back on your feet’. However, 1 week later, CK granted a 2 year lease of Caterpillar Haus to
Pueyee, forcing Jane to share the property. Can Jane claim rights of a tenant in a lease
(exclusive possession)?

There is NO lease

Marcroft Wagons Ltd. v Smith [1951] 2 KB 496, where a landlord, out

of genuine kindness, had allowed the daughter of deceased tenants to
remain in occupation for a period following a double bereavement. The
Court of Appeal in this instance rejected the daughter's later
assertions that she had been granted a new tenancy. This decision was
approved in Street v Mountford on the grounds that no intention to
enter into a contract had been evidenced by the parties. But Gray
asserts (p712-3) that this decision can also be justified due to the
fact that 'the relevant occupation did not confer a stake in the land
or constitute exclusive possession in any true legal sense'.

Street v Mountford pg 819 para h – pg 820 para d (Marcroft)

Street v Mountford pg 824 para f – g (Heslop v Burns)

3. Yush’s parents granted Yush and his girlfriend a 1 year periodic tenancy subject to the
revocation by either party in the annexe of DeeJay Haus, as long as Yush and his girlfriend
help out in the house and pay for their Streamyx and electricity bill. Did Yush acquire a
lease?
Barnes v Barratt [1970] 2 QB 657.

In this case, the Court of Appeal refuted the existence of a tenancy

in a situation where a couple were granted occupation of part of a
house in return for the performance of domestic duties and the payment
of a portion of the household bills. It was held that they merely had
a 'personal licence to occupy' based on what Sacks LJ described as a
situation 'closely akin to those produced by family arrangements to
share a house' [1970] 2 KB 657 at 670A.

Street v Mountford pg 819 para a – c (Booker v Palmer)

Street v Mountford pg820 para E – pg 821 para b (Errington v Errington & Woods)
Street v Mountford pg821 para d – e (Cobb v Lane)
Street v Mountford pg824 para f – g (Heslop v Burns)

4. Cliff owns Hotel Grand Borneo. Yvonne is Cliff’s new F&B manager, and due to her
outstanding performance at work, Cliff decided to reward Yvonne by increasing her salary
and alter her employment contract which Yvonne happily accepted. In the new contract,
Yvonne is offered a ‘lease’ of Penthouse no.5 for the next 4 years, with exclusive possession
where even the cleaning ladies will not be able to enter without her consent. A sum of
RM500 will be deducted from Yvonne’s salary as ‘rental’ for the ‘lease’, subject to the
condition that Yvonne’s Key Performance Index (KPI) does not fall below the 3.4 median. Did
Yvonne acquire a lease?

In Street v Mountford, it was held by the House of Lords that if an

employee is required to occupy an employer's premises in order to
better perform his or her duties, then the employee is a mere licensee
and not a tenant. The reason for this was summed up by Lord Templeman:

"the possession and occupation of the servant is treated as the

possession and occupation of the master and the relationship of
landlord and tenant is not created" [1985] AC 809 at 818f-G.

Also Street v Mountford pg 823 para e – g (Isaac v Hotel de Paris)

Also, in Carroll v Manek 1999, a hotel manager despite having exclusive possession were held to have only a
license because the possession was entirely referable to the employment relationship

5. Antonio D’Shen recently arrived in Malaysia and he proceeded to acquire a 2 year ‘lease’ of
No. 10 BintangHill Residence. In the tenancy contract, the management of BintangHill
Residence reserved the right of entry into D’Shen’s apartment for: ‘cleaning, recording of
water, electricity & gas metres, general inspection and maintenance’. Did D’Shen acquire a
lease?

No

Street v Mountford pg 824 para h – pg 825 para b (Marchant v Charters)

In Street v Mountford pg 818 para a – b (Allan v Liverpool Overseers), the House of Lords emphasized an
important area where someone may have exclusive occupation, but where
the right to exclusive possession of the same premises is vested in
another individual. This is where the occupant is deemed to be a
lodger rather than a tenant. The essential distinction Lord Templeman
drew here is based upon who has the right of overall control of the
premises. He also distinguished a tenant from a lodger or licensee, by
stating that an occupier is a lodger if the landlord provides services
'which require the landlord or his servants to exercise unrestricted
access to and use of the premises'. On this point, also see

Antoniades v Villiers [1990] 1 AC 417 at 459 F-G per Lord Templeman.

Such circumstances deny the occupier any right to resist intrusion,

therefore the owner retains the right to exclusive possession, making
the occupier a mere licensee.

6. Irinna and Daniel have been dating each other for 2 years. They have recently come to KL to
further their studies, and have decided to take a 3 year lease of Tivoli Haus. However,
Belinda (the owner of Tivoli Haus) is only willing to grant Irinna and Daniel a ‘license’ to stay
for 3 years, whereby Irinna must move in 1 week before Daniel. However, despite being
suspicious of Belinda’s motives, Irinna and Daniel decided to take up the ‘license’ due to
monetary & time constraints and also due to the fact that the studio apartment with a
Victorian style Queen sized bed is like a dream home to Irinna and Daniel. Did they acquire a
lease?

Multiple occupation of premises can cause a lot of problems in

determining the existence of a lease or licence. However, the main
doctrinal starting point for the court is in looking to see if the
four unities of joint ownership can be established, i.e. unity of
possession, interest, time and title. If the form of holding by two
or more persons fails to display these four unities, there is no joint
tenancy. Where a joint tenancy does exist, the tenants have a
collective right to exclusive possession which mere licensees would
not have. For an exposition of how the courts distinguish between a
lease and licence where there is multiple sharing by a shifting
population of occupants, you will need to look at the leading case of
AG Securities v Vaughan [1990] 1 AC 417. Also check out [1989] Conv
128 (P.F. Smith).

Also, the situation fits Antoniades v Villiers whereby a lease drafted as a license to avoid the Rent Act, and
despite the fact that the two tenants did not have unity of time, was held to be joint tenants, hence exclusive
possession was established because there were only 1 room with 1 bed.

Street v Mountford pg825 para d – h (Somma v Hazelhurst) (per incuriam)