Property guardians: reigniting the lease/licence battle?

Abstract

This article analyses recent English decisions reviving the need to consider the lease/licence dichotomy and conclusiveness of the parties’ agreement in the new context of property guardianship as an alternative to private renting. It argues that context has proved instructive in interpreting the parties’ agreement elsewhere in the case law and offers a way forward in the hard cases amid the ongoing search for doctrinal clarity and justification. A compound subjective–objective approach appreciates the underlying purpose of the parties’ relationship and justifies why no intention to grant the right of exclusive possession can be present, thereby precluding a tenancy. The article briefly considers reforms to rental accommodation previously suggested by the Law Commission and, in light of the continued need to prove the status of lessee, argues that they should be revisited in order to protect those living in temporary accommodation.

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