This involves tenancies or relations between a landlord and a tenant.  A leasehold interest is one that is held in land under a leasehold title.  The interest in question can be the subject of an assignment and it is capable of surviving the parties to that arrangement. The RLA defines a lease as a Grant with or without consideration by the proprietor of land of the right to exclusive possession of his land and includes the rights granted, the instrument granting it, a sub-lease but does not include an agreement for a lease.  This is found in Section 3 of the RLA.  The RLA gives an encompassing wide definition and we shall examine the significance to be attached to this definition

Section 105 of the ITPA a simple definition approach defines a lease as the grant of a right of exclusive possession of a defined piece of land for an uncertain or ascertainable period.  One can contrast between the two definitions e.g. in the first one quite a lot is included which mentions instruments, sub-lease as part of lease and the deliberate approach to make it clear what does not amount to a lease in this case an agreement to have a lease arrangement does not amount to a lease.  Consideration can be necessary or unnecessary under the RLA but under the ITPA it is a pertinent component of the definition.  Both of them of course revert to exclusive possession and the ITPA further spells the essential requirements that the exclusive possession must relate to a defined premises and that the period in question should be certain or capable of being ascertained so that in terms of the essential elements of a lease, one can easily come up with the following i.e. a leasehold arrangement must confer the right of exclusive possession, that the arrangement must be an intention to create a lease and nothing else; that the subject matter of such a leasehold must be some defined premises and not of one that is not identified and that the period for which that arrangement is to last must be that there must be a commencement date and the termination of such an arrangement. It must be easy to ascertain when the arrangement commences and when it ends.

On the requirement that it must confer exclusive possession, this translates to the fact that a tenant must acquire the right of possession to the exclusion of the landlord and all other persons claiming under him.  That includes relatives, spouses who have no business interfering or sharing possession with the tenant if a leasehold arrangement is what is in issue.  In the case of London Northwestern Railway Co. V Buckmaster (1874) 10 L.R.  the importance attached to exclusive possession precludes interference from the landlords gives new meaning to the arrangements.

Exclusive possession does not necessarily mean that where one falls into possession he becomes a tenant.  It is quite possible that one may be placed in exclusive possession without being a tenant as explained in RUNDA COFFEE ESTATE V. UDDGAR (
In this case the purported lease was ambiguous and it had very funny clauses.  The actual parties to the arrangement were not clearly spelt out and described tenants as paying guests so that the court was at pains to point out whether a grant amounts to a lease or only a licence.  The general circumstances surrounding the entire transaction would come into play.  Between a lease and a licence there is a world of difference the most significant being that a licence is much more inferior in terms of rights and interests that it can confer.  A licensee would suffer from setbacks that would not necessarily affect one holding a lease.  A licence is granted by the proprietor to occupy and gain something for some consideration but for a limited period and cannot be assigned and that is the principle difference between a lease and a licence in that whereas a lease confers much more in terms of rights and interests a licence offers far much less, it cannot be assigned and does not confer rights and interest.  What may be proclaimed as a lease need not be what it is purported to be if it fails to meet the essential requirements as it might turn out to be just mere privilege to occupy.  There is also simplicity to terminate a licence and one can revoke it easily.

There must be an intention to create a lease so that whether an agreement is a lease or a licence is an issue that can properly be gauged based on the intentions of the parties where the process can be greatly assisted by looking at the conditions at which parties entered into the arrangement.  In Hecht V. Morgan 1957 E.A 741 the rule as laid down by the court was that there must be a clear-cut intention to create a lease on the part of both parties.  The intention can be inferred from those surrounding circumstances and once the intention of the parties have been gauged, it should be clear that what was intended was a leasehold grant and in the event that there is failure to ascertain that intent on the part of the parties and where surrounding circumstances do no point towards the creation of a lease the courts have been inclined to hold that a licence rather than a lease is what was created.


No lease can be created or talked of unless the property in question is concretely defined or is such that one can have the means of delimiting the boundary of the premises so that no lease can be created where the frontiers of the property cannot be identified.  That position has won the approval of the court in Hebatulla Brothers Ltd and Thakore V.  The court in this case stated that no tenancy could be created where the property to be let out could not be described in precision.


Period of the lease must be defined or expressed and where it is not so expressed there should be a fairly easy way of knowing both the commencement and the time at which the arrangement comes to an end.   This requirement is satisfied if the commencement or expiry date can be ascertained with reference to whatever defined events that the parties may think of where the date of commencement or expiry is uncertain, it has been held that such a transaction would be void as was the case in Lace and Chandler where the arrangement was to last for the duration of the war the court held that this was not sufficient of making it capable of ascertainment as when it was to last.


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