[Paper Presentation]: 'Distinguishing the Lease from the Licence to Occupy – Possible Solutions' by Shona Warwick

This is the second meeting of a forum for postgraduate research students with an interest in private law to come together to discuss their work and exchange ideas. At each meeting, a student will give a short, informal presentation on an aspect of their research which will be discussed by the group. Each meeting will be chaired by a Faculty member, but otherwise the participants will all be post-graduate students. As well as substantive discussion, there will also be discussion of topics relevant to thesis writing and career development.

We are very pleased to share that our presenter this term is Shona Warwick (University of Edinburgh). Shona is a PhD candidate at the University of Edinburgh. She co-convenes the Edinburgh Private Law Discussion Group, and teaches various private law subjects at the university. As well as discussion of Shona's paper on 'Distinguishing the Lease from the Licence to Occupy – Possible Solutions', there will also be discussion, towards the end of the session, on teaching alongside doctoral research – balancing these tasks, the benefits (and possible challenges) of pursuing teaching assignments, and a general overview of how to approach teaching opportunities. The Chair for the session will be Professor Susan Bright.

The meeting will take place on Monday 21 June 2021 on Microsoft Teams, from 1pm-2pm (BST). This event is open to postgraduate research students with an interest in private law, whether studying at Oxford or elsewhere.To register and receive the Teams link, please email one of the Co-Convenors: aleksandra.kobyasheva@sant.ox.ac.uk or anirudh.belle@sant.ox.ac.uk .

When registering, please indicate your institutional affiliation. If you would like to volunteer to present at a future meeting, please do let us know your proposed topic.

The Abstract for Shona’s presentation is as follows:

Distinguishing the Lease from the Licence to Occupy – Possible Solutions

This paper explores possible tests for distinguishing between the lease and the licence to occupy in Scots law - an area which was recently highlighted by the Scottish Law Commission as in need of exploration and clarity. This research forms the final part of a thesis concerning the formation of different occupation agreements. The first part of my thesis argues that Scots law recognises three distinct agreements: the real right of lease, the contract of lease, and the licence to occupy. All of these agreements impose different rights and obligations on the parties, so it is imperative that parties know which agreement they have created. At present, there is no consensus on Scots law on how to distinguish a lease (real right or contract) from a licence to occupy. Like English law, there has been a recent emphasis on the importance of exclusive possession – see, for instance St Andrews Forest Lodges v Grieve [2017] SC DUN 25. However, other tests such as the missing cardinal element test and the importance of intention are also regularly cited – see for example, the most recent textbook on Scottish lease law: Richardson and Anderson, McAllister’s Scottish Law of Leases (2021), p55-56. The second part of the thesis explores these current tests in detail, concluding that all are flawed. The final part of this thesis – the focus of this presentation – explores possible reforms to this area of law. It argues that Scots law should abandon exclusive possession as a test. Instead, the law should emphasise the intentions of the parties or the absence of a cardinal element when deciding if a lease is really a lease.