AN advertisement in a recent newspaper invited “all interested persons to apply as licensor (landlord/homeowner)” to provide housing for commuting students. The advertisement was placed by the Accommodation Officer of a local university and informed the prospective ‘Licensors’ that ‘boarding be offered and not rented’ to their students. The advertisment further recommended a range of fees to be paid monthly, inclusive of utilities.

Chances are that landlords and homeowners who read the advertisment may have been left confused by the use of the term “licensor”. While it is quite common to hear the term licensor used in relation to other aspects of everyday life, the use of the term in relation to the provision of residential accommodation is quite rare. A licensor is a person who provides a licensee with a licence. A licence is the right to use a product, service or facility in exchange for an agreed consideration, usually monetary. In public life, the Government is a licensor in many respects as they issue liquor licences to bar operators, driver’s licences to persons desirous of operating a motor vehicle on a Jamaican road, and ‘road licences’ to public passenger vehicle operators such as route taxis.

Landlords have existed as licensors for many years and while the terminology is infrequently used, many arrangements that now pass as landlord and tenant relationships are actually licensor-licensee relationships. The advertisement has provided us with the opportunity to explore such an arrangement, especially in the light of the fact that it makes mention of ‘stipulations of the Rent Assessment Board’ as it relates to boarding. The question we will now explore is whether the offer of boarding to a student by a landlord is one that is within the jurisdiction of the Rent Restriction Act (“the Act) and by extension the Rent Assessment Board (“the Board”). Additionally, this article will briefly differentiate between a tenancy and licence arrangement and will highlight some pertinent questions that landlords should seek to consider ahead of contracting with a student seeking accommodation.

A “dwelling house” is generally understood to be a building inhabited by someone or a room separately rented, which is used mainly as a dwelling or place of residence. The Act describes a “landlord” as including any person deriving title under the original landlord and any agent having charge, control or management of the premises on behalf of the landlord. Rental is not defined in the Act but may be taken to mean a fee paid for the premises-furnished or unfurnished.

For there to be a proper lease or tenancy arrangement, there has to be exclusive possession for a term at a rent. There are three standard requirements.

Exclusive possession means that the tenant occupies the premises without interference from the landlord. This involves being in possession of your own key to the rented premises. Also, it requires that the tenant has to receive advance notice of an inspection visit from the landlord.

The term of a tenancy is usually explicitly stated in an agreement (oral or written) or implied based on the frequency of payment of the rental.

Rent is usually an agreed fee and may vary for the same premises depending on whether it is being provided furnished or unfurnished.

The absence of any one of the requirements above may make the agreement unenforceable as a tenancy agreement. However, what is a licence arrangement is not always clear cut and is often a matter to be determined by the court on a case by case basis. Case law on the subject is quite significant and has been very useful in making the distinction between what constitutes a licence and what constitutes a tenancy. For example, many occupiers often rely on the fact that they have exclusive possession of the premises as their strongest argument in proving that they are tenants. This is often the case even when they fail to meet other obligations related to their occupation of the premises. In many such instances, the courts have ruled that “…before an occupier who is in exclusive possession of land can be treated holding under a licence and not a tenancy, there must be something in the circumstances, such as a family arrangement, an act of friendship or generosity, or suchlike, to negative any intention to create legal relations”.

The advertisement mentioned above provides the prospective licensors with some very good information as it requires the exclusion of a rental arrangement, opting instead for an offer of boarding. This arrangement would not be more akin to a licensee/licensor relationship, which would not be under the purview of the Act. In fact, the Act makes it clear that its provisions do not apply to any dwelling house, the rent for which bona fide includes payment for board. This means that the provision of boarding — residential facilities, utilities and oftentimes meals — is not subject to the Act.

Consider the situation where a landlord offers a University student a furnished bedroom, inclusive of electricity, water, internet and cable for a fee. Can this arrangement be regarded as a tenancy, under the purview of the Act or is it a licence?

If the advertisements in the newspapers and the work on the physical facilities are any indication, universities are in expansion mode. With campuses in the Corporate Area, Mandeville, Falmouth and Montego Bay, universities appear to be increasing their intake for the upcoming academic year. This increase has clearly translated to a corresponding demand for offcampus housing as evidenced by the advertisement referenced earlier. While existing homeowners are likely to benefit in the short term, forward-thinking investors with access to land, zoned for residential purposes, should consider the opportunity for creating and offering purposebuilt boarding facilities to students. The potential returns in the medium to long term will be much more than capital appreciation as the provision of well-needed quality student housing will most likely impact the development of the region’s human capital as well.

For existing landlords and homeowners who are desirous of responding to invitations such as the one extended earlier this week, there are some obvious questions they should ask themselves in preparation for entering into a licence arrangement with a student. Some of these questions should include:

•What level of access will the Landlord have to the premises?

•How will the ‘offer of boarding’ be worded in the contract?

•What facilities and services will the fee to be charged include?

A landlord/homeowner with premises to let must carefully consider the nature of the arrangement before entering same. Now that the invitation has been extended landlords and homeowners should be more empowered to make an informed response.

Alicia Hussey is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Alicia may be contacted via Alicia.hussey@mfg.com.jm or https://www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.