Tenancy

A contract by which the owner of real property (the landlord), grants exclusive possession of that real property to another person (tenant), in exchange for the tenat's periodic payment of some sum of money (rent).

In Gari Holdings, the Justice Richard of the Saskatchewan Court of Appeal used these words:

"The essence of a tenancy is the right to possess and occupy land belonging to another.

"The relationship of landlord and tenant is created by a contract expressed or implied, by which one person who is possessed with an interest in real property, and who is called the landlord or lessor, confers on another person, called the tenant or lessee, the right to exclusive possession of the real property or some part of it for a period of time which is definite or can be made definite by either party, usually in consideration of a periodical payment of rent either in money or its equivalent. "

In a 1985 House of Lords decision, Justice Templeton wrote:

"There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who enjoys exclusive possession is not necessarily a tenant. He may be an owner (or) a trespasser...

"To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments."

 In Halsbury's Laws of England,  the authors add:

"There can be no tenancy without the grant of exclusive possession.

"Exclusive possession enables the tenant to exclude strangers and to exclude also the landlord unless the landlord is exercising rights to enter the land granted to him under the tenancy agreement."

Tenancies are a species of real estate contracts and are also known by the legal term lease.

In law, a distinction is made between a tenancy agreement and a contract for lodging or a license.

Most jurisdictions have considerably supplemented the common law by enacting statutes which deal with commercial or residential tenancies. For example, in the Canadian jurisdiction of Ontario, there is both a Commercial Tenancies Act and a Residential Tenancies Act.

REFERENCES:

• Commercial Tenancies Act, Revised Statutes of Ontario 1990, Chapter L7
• Duhaime, Lloyd, Residential Tenancy: A Glossary
• Gari Holdings Ltd. v Langham Credit Union Ltd. 2005 SKCA 97
• Heathcote-Williams, H., FOA's General Law of Landlord and Tenant, 8th Edition (London: Thames Bank Publishing Company Limited, 1957)
• Residential Tenancies Act, Statutes of Ontario 2006, Chapter 17
• Street v Mountford 1985 2 All ER 289