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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.


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