By Gilbe Kodilinye, Gilbert Kodilinye
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Additional info for Commonwealth Caribbean Property Law
There are numerous Commonwealth Caribbean cases in which the issue as to whether a lease or a licence was created fell for decision, and the courts have almost invariably used the ‘intention of the parties’ test. 14 7 8 9 10 11 12 13 14  2 All ER 289, p 300.  1 All ER 348. Marcroft Wagons Ltd v Smith  2 All ER 271; Facchini v Bryson  1 TLR 1386. Cobb v Lane  1 All ER 1199; Edwards v Brathwaite (1978) 32 WIR 85; Romany v Romany (1972) 21 WIR 491. Abbeyfield (Harpenden) Society Ltd v Woods  1 WLR 374; Marchant v Charters  3 All ER 918; Street v Mountford  2 All ER 289 (‘a lodger is entitled to live in the premises, but he cannot call the place his own’, per Lord Templeman, p 293).
The trial judge held that the relationship between the parties was one of licensor and licensee; that the licence had been effectively revoked by C’s re-entry; and that C was not liable in trespass. On appeal, the Federal Supreme Court held that, from the fact that S was given exclusive possession of the house, an intention to create a monthly subtenancy was to be inferred, and there were no special circumstances to negative the inference. C was, accordingly, liable for trespass. Lewis J said:16 I am unable to find in the evidence any special circumstances or conduct of the parties which negative the inference normally to be drawn where a person having a possessory interest in land puts another person into exclusive possession of that land, namely an intention to create a tenancy.
On the evidence before me, I find that, when the claimant went into occupation of the land, it was nothing more than a family arrangement. I also find that, on the death of the claimant’s mother, he continued in occupation by family arrangement during the lifetime of his father. Certainty of duration The general rule is that a lease must have a certain beginning and a certain ending. This requirement will be satisfied where, for example, L grants T a lease of Greenacre ‘for a term of five years commencing on 1 March 1998’.
Commonwealth Caribbean Property Law by Gilbe Kodilinye, Gilbert Kodilinye