Aslan v Murphy (No 1) [1989] EWCA Civ 2
Landlord and tenant; whether agreement is a lease which expressly excludes exclusive possession
Facts
Aslan occupied a basement room under an agreement which expressly stated he did not hold exclusive possession. Under the agreement, the landlord maintained a key to the premises, and he was purportedly to be excluded from the property for 90 minutes of each day. Aslan challenged an order for possession arguing that the agreement amounted to a lease and not a license and he was, therefore, entitled to the security of tenure provisions of the Rent Act 1977.
Issues
To be a protected tenant under the Rent Act 1977, an occupier must show the agreement amounts to a lease under which he enjoys exclusive possession for a term. Aslan contended the retention of the key and the purported exclusion from the right to occupy for 90 minutes of every day was a sham intended to avoid his being awarded the protections of the Rent Act, and the agreement amounted to a lease in substance and effect. The landlord contended that Aslan was a lodger, and the agreement amounted only to a license under which he enjoyed no right to exclusive possession.
Held
The agreement was held to be a tenancy. The retention of keys by a landlord does not in and of itself preclude the occupier from enjoying exclusive possession. The court should examine the reasons why the landlord holds the key. If it is retained for emergencies, meter readings and to conduct repairs, then the finding of a tenancy would not be precluded. If the keys were retained for services such as daily bed making and cleaning, then it would be more likely that the occupier would be deemed a lodger.
Updated 21 March 2026
This case summary remains legally accurate. Aslan v Murphy (No 1) [1990] 1 WLR 766 (also reported as [1989] EWCA Civ 2) is a well-established Court of Appeal authority and its core principles continue to represent good law. The distinction between a lease and a licence, and in particular the significance of exclusive possession and the sham doctrine, remains governed by the framework set out in Street v Mountford [1985] AC 809 and the companion cases decided by the Court of Appeal, of which Aslan v Murphy is one.
One contextual point worth noting for students: the Rent Act 1977 protections at issue in this case apply only to tenancies created before 15 January 1989. Most residential tenancies created on or after that date are instead governed by the assured tenancy regime under the Housing Act 1988, and from 2019 onwards in Wales by the Renting Homes (Wales) Act 2016. However, the underlying common law principles concerning the lease/licence distinction discussed in this case remain fully applicable regardless of which statutory regime governs a particular tenancy.
