Boris Ignachkov Law students studying English land law often analyze cases such as Aslan v. Murphy and Duke v. Wynn [1989]. These cases distinguish between leases and licenses, providing insight into the courts’ interpretation of residential occupation agreements and the significance of exclusive possession.
Legal Principles and Key Points in Aslan v Murphy and Duke v Wynn
- In the case of Aslan v Murphy and Duke v Wynn [1989] 3 All E.R. 130, it was held that the decisive factor that determines whether an occupation agreement confers the status of tenant or licensee is whether the agreement confers exclusive possession. The court must look to the true nature of the bargain between the parties. Unrealistic and unexercised reservations of rights over the property by the landlord will not be definitive.
Facts of the Case Aslan v Murphy and Duke v Wynn
Aslan v Murphy
- C occupied a basement room under an agreement that expressly stated he did not have exclusive possession.
- D, the landlord, maintained a key to the premises, and could remove C from the property for a 90-minute period each day.
- C challenged a possession order, arguing that the agreement was actually a lease, and therefore he had exclusive possession.
Duke v Wynn
- C owned a 3-bedroom house which she had vacated. She had it refurbished and decided to wait 2 years until she reached a decision about selling it.
- D, a married couple with 2 sons, agreed to live in the property under an agreement that stated C maintained exclusive possession, and restricted anyone living in the house to strictly those C invited.
- After 2 years, C decided to emigrate and sell the house. D negotiated to purchase the house, but this ultimately failed. D argued that the agreement was actually a lease.
Issues in Aslan v Murphy and Duke v Wynn
- Did the provisions in the agreements stating exclusive possession remained with the landlord automatically confer the status of licensee rather than tenant?
Held by the Court of Appeal (Civil Division)
- Finding for C (Aslan) and D (Wynne), that the agreements were in fact leases. Labels and pretences of maintaining exclusive possession and not conclusive, and the ‘true bargain’ in both cases is that the tenant had exclusive possession of the property in practice. Agreement to these pretences does not amount to surrendering one’s rights as a tenant.
Lord Donaldson M.R.
- The labels which parties agree to attach to themselves or to their agreements are never conclusive. In this particular field, in which there is enormous pressure on the homeless to agree to any label which will allow them to access accommodation, they give no guidance at all.
- Exclusive possession is the touchstone that distinguishes tenancies from lodging, and therefore what grants a tenant their rights. If the tenant agrees to pretend like they do not have rights as such under the Rent Acts, even in ignorance of them, that does not allow them to surrender their rights.
- Provisions indicating that a landlord retains keys to the premises are often relied upon in arguing that an occupier is a lodger rather than a tenant. Such provisions occurred in both of the present cases. But they do not have any magic in themselves. Exclusive possession does not translate to exclusive possession of keys to the premises. What matters is why the landlord retains the keys.
- “A landlord may well need a key, in order that he may be able to enter quickly in the event of emergency- fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read metres or to do repairs which are his responsibility. None of these underlying reasons would of themselves indicate that the true bargain between the parties was such that the occupier was in law a lodger. On the other hand, if the true bargain is that the owner will provide genuine services which can only be provided by having keys, such as frequent cleaning, daily bed-making, the provision of clean linen at regular intervals and the like, there are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain” [137].
Significance of the Case in the Development of the Law
Aslan v. Murphy and Duke v. Wynn [1989] is critical for its clarification of the principles that distinguish a lease from a license. This distinction is fundamental because it determines whether an occupant is a tenant with certain legal protections or merely a licensee without those protections. The judgment in this case emphasized looking beyond the written agreement to the “true bargain” or actual living arrangement to determine this status.
- Street v Mountford [1985]: This landmark case established that the presence of exclusive possession is a key determinant in classifying an agreement as a lease rather than a license. Aslan v. Murphy builds on this by stressing that superficial provisions in an agreement do not determine the nature of the occupation if they do not reflect the reality of the arrangement.
- Antoniades v Villiers [1990]: Shortly after Aslan v. Murphy, this case further explored the implications of agreements that superficially deny tenants’ rights. It reinforced the principle that the substance of an agreement over its form would determine the occupier’s status.
- Bruton v London & Quadrant Housing Trust [1999]: This case took a unique turn where a lease was acknowledged even without the landlord’s proprietary interest, emphasizing that what truly matters is the agreement’s operational reality, a principle underscored in Aslan v. Murphy.
Exam Questions and Answers
Below you will find answers to questions that are most commonly asked based on this case.
How do contemporary UK laws address the issue of sham provisions in residential agreements in light of increasing digital and remote agreement formations?
Sham provisions are clauses in an agreement intended to misrepresent the true intention of the parties, often used to circumvent statutory protections. The seminal case of Street v. Mountford [1985] established that the presence of exclusive possession indicates a lease regardless of the agreement’s label. In the digital age, the principles from Aslan v. Murphy and related cases still apply; the courts look to the substance over form to determine the true nature of any agreement.
In contemporary practice, especially with the rise of digital contract formations, UK law emphasizes transparency and fairness in consumer contracts under the Consumer Rights Act 2015. This act ensures that terms are presented clearly and are fair. Thus, any sham provisions that attempt to mislead the consumer about their rights would likely be deemed unfair and, therefore, unenforceable.
For example, in the context of digital agreements for rental properties, any attempt by a landlord to impose terms that ostensibly deny a tenant’s right to exclusive possession (which might actually exist in practice) could be challenged under these principles. The courts would examine the operational reality of the agreement—how the parties actually conduct themselves and the control exercised over the property—to determine whether it is a lease or a license.
What are the implications of Aslan v. Murphy and Duke v. Wynn on short-term rental agreements, such as those commonly seen on platforms like Airbnb?
The rise of platforms like Airbnb has blurred the lines between traditional lease agreements and licensing arrangements. In light of Aslan v. Murphy, even short-term rental agreements could be construed as leases if they grant exclusive possession, despite being labeled otherwise.
In the UK, if a short-term rental agreement inadvertently grants tenants exclusive possession, they might inadvertently acquire rights under the Housing Act 1988, particularly if their stay exceeds the Act’s duration threshold. This would grant them security of tenure, complicating the host’s ability to regain possession.
However, most Airbnb-type agreements are structured to avoid such implications by ensuring that the host retains sufficient control over the property, often through regular cleaning services or other interventions that preclude exclusive possession by the guest. The key takeaway from Aslan v. Murphy is that the actual practice and operation of the agreement will be scrutinized, not merely the written contract.
How does the principle of “true bargain” apply to agreements involving advanced automated home systems that control access and monitor use?
The principle of the “true bargain” from Aslan v. Murphy extends to modern agreements involving smart home technologies that monitor and control access. If a landlord uses such technology to assert control over the property—perhaps by restricting access times or monitoring usage remotely—this could influence whether the arrangement is seen as a lease or a license.
If the technology is used to enforce restrictions that align with a licensing arrangement (for example, restricting access to certain areas or at certain times), and these restrictions genuinely reflect the landlord’s provision of services or security measures, it might support the classification of the agreement as a license. Conversely, if the technology is merely a tool to monitor compliance with a lease’s terms while still granting the occupant exclusive possession, it would likely not alter the fundamental nature of the agreement as a lease.
These scenarios underscore the importance of aligning the operational reality of the occupation with the terms of the agreement, ensuring that the use of technology supports, rather than contradicts, the legal nature of the agreement as intended by the parties.