This week, we will discuss one of the most important characteristics of a lease: exclusive possession.
What does exclusive possession mean, and why is it significant?
Exclusive possession refers to a tenant’s right to prevent everyone, including the landlord, from accessing the leased premises. This may be done by legal or non-legal means.
Importantly, this means that the landlord cannot enter the property except under the terms of the landlord-tenant agreement or any other arrangement agreed to by the tenant.
If a landlord enters the rented property in breach of the agreement or against the will of the tenant, the landlord and/or owner become trespassers and may be dealt with accordingly. The tenant can report the landlord for criminal trespassing and/or file civil actions for trespassing.
Therefore, exclusive possession in the context of landlord-tenant law is synonymous with exclusive control. The tenant has the rights of the owner subject to certain restrictions, including, but not limited to, damaging the property (committing waste) or using the property for illegal activities (such as running a brothel, using or selling controlled substances, or subletting without consent).
Exclusive possession also means that the landlord cannot control how the tenant uses the property, subject to certain restrictions. I have encountered some unusual restrictions in tenancy agreements. These include prohibitions on consuming alcohol on the premises, bans on having guests of the opposite sex, and restrictions on sexual activities in the property unless tenants are married.
No landlord has the power to restrict a tenant from doing these things, and even if such terms are included in a tenancy agreement, they are unlikely to hold up in court.
Realising the effect of exclusive possession, many landlords have attempted to reduce tenants’ control over the rented property.
For example, some landlords have included terms in landlord-tenant agreements that expressly say that exclusive possession is not granted. Alternatively, some landlords have started to describe agreements as licence agreements and their tenants as licensees.
In doing so, some landlords aim to exert greater control over tenants, evict them with increased ease, and deny them the protections afforded by the Rent Restriction Act.
The court recognised these attempts and developed methods to uphold protections for tenants. For instance, some courts have stated that when a landlord reserves the right to enter, inspect, and repair the premises in an agreement, the renter is considered a tenant and is entitled to exclusive possession, regardless of what is stated in the agreement, even if the renter has agreed to be classified as a licensee.
Now, the above statements reflect the general position, but there are a few exceptions to these rules.
For example, even if a person pays rent (particularly a token amount) to occupy a property and is granted exclusive possession, the renter would not have the aforementioned rights if it can be demonstrated that there was no intention to establish a legal relationship.
For instance, if A, a mother, allows B, her son, to occupy the lower flat of her house for a year in exchange for rent (which is below market value), because he has lost his home or flat and A grants him all the rights of a regular tenant, a lease may still not be established.
Moreover, if an employer provides an employee with living accommodations to enable that employee to perform his/her duties more effectively, no tenancy is established, even if there is a defined or ascertainable period, rent, and exclusive possession. It is understandable if these concepts are challenging to comprehend. Landlord and Tenant Law is among the more complex subjects tackled in law school, and many students struggle on their first attempt.
This serves as a lesson. If aspiring lawyers grapple with these ideas, why would someone without legal training presume they possess sufficient knowledge to navigate such arrangements independently?
In any case, if you are a tenant, or if you are contemplating renting property as a tenant, know that you have immense powers to control access to the property. However, by now you should also know that to better understand your rights, especially if you are having issues with your landlord, it will benefit you to seek legal advice.
