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    Hey guys, I've been trying to figure out exactly what my essay questions means but I'm still struggling... just wondered if you had any ideas on what needs to be discussed! This is the question:

    “It would in my judgement be a strong thing for the law to disregard totally the parties’ choice of wording and to do so would be inconsistent with the general principle of freedom of contract and the principle that documents should be interpreted as a whole” (per Arden L.J. NCP Ltd v Trinity Development Co [2002] 2 P. & C.R. 18 at [28]).

    Critically analyse this statement in the context of the lease or licence distinction. Explain why it is more likely that a licence agreement will be upheld in the commercial sector than in a residential context?
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    It is concerning the conceptual distinction between leases and licences and how the courts have interpreted the matter. Prior to Street v Mountford which laid down the test for a lease, there were considerable problems with "landlords" using contractual licences instead of leases when "renting" out land to tenants. The impact of this, was a lack of security of tenure due to the revocability of contractual licences compared to leases.

    So, what you want to speak about is how the courts have dealt with that problem through their interpretation of the Street v Mountford criteria: in particular, see the treatment of "sham" agreements such as that in Aslan v Murphy ("...labels are never conclusive"), and the case of Villiers.
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    Did this exam yesterday, even revised for leases very well, yet unable to make sense of the question
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    The conclusiveness of the language used was firstly discussed in Booker v Palmer, then in Errington. You should discuss the doctrine of pretence (Street v Mountford) in detail as well as the distinction between proprietary and personal rights (licences, leases and contractual tenancies (Bruton)). Commercial leases are governed differently, in terms of bargaining power, allocation of risks, the tenant in a domestic setting is usually more vulnerable, etc. + as above.

    Remember to refer to the question throughout the whole essay - ie what are the implications of the decisions such as Street v Mountford, why the value of freedom of contract may be undermined, etc.
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    Thanks guys, I figured it was something along those lines but you've helped a lot!
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    (Original post by callygirl)
    Thanks guys, I figured it was something along those lines but you've helped a lot!
    Good luck
 
 
 
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