Consultation Paper on the General Law of the Landlord and Tenant

the occupier of the land in question is obliged to pay rent or someother form of consideration in return for the right to occupy. Thelegislation should, however, specify an exception to this rule tofacilitate the continued creation of mortgages by demise or subdemise,but no other exceptions are contemplated. [Paragraph 1.23]18.07 The Commission recommends that a tenancy at will shouldnot be regarded as creating the relationship of landlord and tenant andthat arrangements involving occupation of land rent free for indefiniteperiods should be regarded as a form of licence. [Paragraph 1.24]18.08 The Commission has reached the preliminary conclusionthat it should be confirmed that a tenancy at sufferance does notcreate the relationship of landlord and tenant. [Paragraph 1.25]18.09 The Commission recommends that new statutory guidelinesshould require the courts to give effect to the express provisions ofdocuments relating to the occupation or use of land, provided each ofthe parties has had the benefit of independent legal advice. If suchadvice has been received, there seems no reason to distinguishbetween different categories of occupation, such as residential andcommercial. Where, however, no such advice has been received, itshould remain open to the court to disregard the terms of theagreement, but only if the evidence before it establishes that it doesnot reflect accurately what all the parties intended. [Paragraph 1.31]Chapter 2 Formalities18.10 The Commission is of the view that it would prevent muchconfusion if expressions such as “contract of tenancy”, “tenancyagreement” and “lease agreement” were avoided both in practice and,most certainly, in legislation. The expression “contract” or“agreement” should be confined to the situation where only apreliminary contract or agreement for the future grant of a lease ortenancy is contemplated. The expressions “lease” or “tenancy”(without any accompanying reference to a contract or agreement)should be confined to the situation where a lease or tenancy (creatingthe relationship of landlord and tenancy) has been granted. TheCommission also draws attention to the sometimes confusing use ofexpressions like “landlord” and “tenant”, “lessor” and “lessee” and“lease” and “tenancy”. It reiterates its view that confusion would beavoided if the expressions “landlord”, “tenant” and “tenancy” wereregarded as the generic terms. The expressions “lessor”, “lessee” and“lease” should be confined to situations where the tenancy has been192