Of li­cence and lease

Can a land­lord lock one room while rent­ing out his apart­ment? The an­swer de­pends on the terms of agree­ment listed at the time of lease or is­sue of li­cence TERMS OF AGREE­MENT

HT Estates - - NEWS - Achint Singh Gyani

When a per­son is granted the right to en­joy an im­mov­able prop­erty, ques­tions about whether such a per­son is a li­censee or a lessee, arise. In le­gal terms, a li­cence is a per­sonal right granted to a per­son with­out cre­at­ing an in­ter­est in the prop­erty (ie permission to use land with­out grant­ing ex­clu­sive pos­ses­sion), while in the case of a lease, there is a trans­fer of in­ter­est in im­mov­able prop­erty.

Whether an in­stru­ment op­er­ates as a lease or as a li­cence is a mat­ter not of words but of sub­stance. The in­ten­tion must be gath­ered on a true con­sid­er­a­tion of the agree­ment, and not merely from the de­scrip­tion given by the par­ties. So, in a sense, the land­lord needs to spell out the terms and con­di­tions clearly, with­out giv­ing room for doubt.

The de­ter­min­ing factor, how­ever, lies in whether the in­ter­est is cre­ated in the prop­erty along with the pos­ses­sion. If an in­ter­est is held in the prop­erty to­gether with pos­ses­sion, then it is a lease. If it only gives the use of the prop­erty in a par­tic­u­lar way on cer­tain terms while it re­mains in the pos­ses­sion and con­trol of the owner, it will only be a li­cence.

Thus, the de­ter­mi­na­tion of re­la­tion­ship be­tween the land­lord and ten­ant would be gov­erned by the terms of the agree­ment as well as the man­ner in which it is fol­lowed and im­ple­mented. The terms have to be hon­oured, in prac­tice, by both the ten­ant and the land­lord, so as to main­tain an am­i­ca­ble re­la­tion­ship.

As the land­lord and ten­ant can de­ter­mine the terms of their agree­ment, it would be open to the land­lord to pro­vide for lock­ing of one room while rent­ing out his apart­ment and in such a case, the land­lord would have a good claim to con­tend that the agree­ment is in the na­ture of li­cence rather than lease. A li­cence is a per­sonal right granted to a per­son with­out cre­at­ing an in­ter­est in the prop­erty A lease in­volves a trans­fer of in­ter­est in im­mov­able prop­erty The dif­fer­ence be­tween a li­cence and a lease lies in whether the in­ter­est is cre­ated in the prop­erty along with the pos­ses­sion. If it does, then it is a lease If it only gives the use of the prop­erty in a par­tic­u­lar way on cer­tain terms while it re­mains in the pos­ses­sion and con­trol of the owner, it will only be a li­cence The re­la­tion­ship be­tween a land­lord and ten­ant de­pends on the agree­ment and the im­ple­men­ta­tion of the same It is upto the dis­cre­tion of the land­lord whether or not to lock a room while giv­ing it on rent. It is also dic­tated by the na­ture of the agree­ment - lease or li­cence

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