Law Case Study On Property

2981 words - 12 pages

John is a student of a University. He lives in a bed-sitting studio near the University. He has an arrangement with the owner of the studio Mary, described as a licence, whereby Mary gives John the right to occupy the studio for one year. Mary reserves the right to enter the studio at any time and retains a key. Mary visits the studio one day and sees John's posters on the wall supporting the Campaign to legalize the smoking of Marijuana (a dangerous drug). Mary immediately gives John notice to vacate the studio saying "I won't allow you making trouble on my property". Advise John.The essence of this case is whether John's occupation is under a lease or just under a licence. The distinction between a lease and a licence is important because John will enjoy the security of tenure legislation found in the Land and Tenant (Consolidation) Ordinance (LTCO), while he does not if he occupies the studio under a licence. John will qualify as a lessee if his occupation display the certain characteristics: Exclusion Possession and Fixed Duration.Exclusive PossessionIn order for occupation to qualify as a lease, John must be given exclusive possession of the studio. It is exclusive possession that justifies the recognition of John's occupation as an estate or interest in the land itself. It marks the degree of physical control over the land that entitles John to call the land his own and to keep out anyone he does not wish to enter, including Mary. If exclusive possession is not given, John will only enjoy a licence to occupy, which confers no estate or interest in the land.In this case, John is given exclusive possession because he is given the right to occupy the studio for one year. Although John and Mary sign an agreement described as a licence, they cannot create a licence simply by calling the agreement a licence. Mary must ensure that no exclusive possession is granted to John. Street v Mountford (1985)AC 809Moreover, the terms of the agreement also confirm John's control of the studio. As the right to enter and view the premise is granted to Mary, it again supports the grant of exclusion possession to John. If no grant of exclusive possession is made, there will be no need for Mary to reserve a right to enter and inspect.However, we cannot say that John is a lodger because no terms in the agreement give Mary the right to interfere with John's right to use the studio or restricting John's or his visitors' access to the studio at certain times of the day. Moreover, John has an individual key to the studio. The studio is furnished and he has to clean the studio by himself because no Amahs service is provided. Thus, John is given exclusive possession. May King Development Co v Young Ching-huo Ltd. (1981) HKLR 280Fixed DurationA lease grants a right to exclusive possession for a defined or certain period of time. That period may vary from the very short to the very long.Commencement DateThe commencement date of the lease must be ascertainable Harvey v...

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