MOST Jamaican households have a nuclear or extended family structure. In these arrangements, children, grandchildren, aunts and uncles live with their parents or grandparents, without any formal arrangements.

Often, domestic disputes occur in these households because of a lack of understanding of living arrangements. These disputes result in adverse and unfortunate outcomes. It is important to note that you can occupy your relative’s property, a friend’s or charitable property as a tenant. A tenant is someone who pays rent for the use of property, land or business. The Landlord and Tenant Act and the Rent Restriction Act often govern these arrangements. A tenant is entitled to exclusive possession of the property subject to a lease against the owner or landlord. A tenant has various rights and obligations. Some of the essential rights and obligations are that (a) the tenant is entitled to exclusive possession of the property, (b) the tenant must pay rent, and (c) the tenant must vacate the property at the end of the time for which the lease runs:

1. ‘Tenant-at-will’ is defined as a month-to-month or at-will agreement in which either the tenant or the owner/landlord can terminate the property tenure at any time because no formal contract specifies the length of time during which the tenancy will take place.

2. A licensee with a licence to occupy the premises usually enters into an oral agreement with the property owner. A licence to occupy is distinct from a tenancy agreement. One may have a licence to occupy a property without a tenancy agreement. This often means that the property owner can ask the licensee to leave at any time, especially if they are not paying rent, providing help in exchange for rent, carrying out home improvement in exchange for rent, or having exclusive possession of any part of the premises.

What is a licence to occupy?

A licence to occupy does not give you the same rights as a tenancy agreement. However, a licence to occupy does provide you with nonexclusive possession of the property. This means that the registered owner—being your parents, grandparents, aunts, uncles or friends — can enter any portion of the property without your permission and can also relocate you from one area of the property to another.

A licence to occupy does not give you a legal interest in the property. If you enter a property to live in without a licence or a tenancy, you may be referred to as a trespasser, and your family member(s), friend(s), or unrelated third party can have you removed by the courts. Therefore, it is best to have a licence or tenancy agreement in place.

What is a contractual licence to occupy?

There are two different types of licence.

A ‘bare licence’ indicates that verbal permission has been given to stay in a property.

A ‘contractual licence’ may or may not be put in writing, which is not a legal requirement for a contractual licence. A contractual licence can be entered into verbally or in writing. For a contract to exist, there must be some consideration, for example, that you will pay money in return for a room or provide a service, such as assistance with property renovations or looking after an elderly relative of the property owner. The occupation could be called service occupancy or a service licence if significant services are provided.

A licence gives you less protection from eviction than a tenancy.

Is a licence to occupy a licence or a tenancy agreement?

In some situations, a property owner will try to call a tenancy of a property a licence to occupy; for example, the property owner may say you have no exclusive occupation. Some property owners believe that if they do not offer exclusive use in the written document, the agreement will be considered a licence to occupy if a dispute goes to court.

A court of law may consider the following when looking at the agreement between the parties:

• Is there an intention to enter into a legal relationship?

• Is there a right to exclusive occupation?

• Is there a service provided as part of the occupation agreement?

What does nonexclusive occupation mean?

With a licence, the occupier gets nonexclusive occupation of the premises. That means the property owner can grant other licences or occupy the property (or part thereof) themselves. For example, family members or friends can allow anyone to occupy your room or ask you to occupy a smaller room or any other part of the premises. You do not have an exclusive right of occupation with this type of arrangement.

Additionally, suppose the property owner enters your room to change the bedding and clean it or introduces a new person to join the household and use the shared facilities. These are all indications of nonexclusive occupation.

A tenancy agreement means the tenant gets exclusive occupation of the property, which excludes other people from the rented property during the tenancy agreement term. This includes the exclusion of the landlord, who, under a tenancy agreement, is only customarily entitled to enter the property in emergencies or after giving reasonable notice to conduct inspections or property repairs.

Does a licence provide security of tenure?

A licence does not provide the same security of tenure as a tenancy agreement.

You have some statutory rights as a tenant rather than a licensee. Accordingly, you have greater rights as a tenant than a licensee under a licence to occupy.

Recommendation

A licence to occupy can be granted for a fixed or recurring period. A lease is usually more temporary than a lease agreement. Even if the licence to occupy is temporary, it is crucial to put it in writing and give clear notice periods for the property vacation.

Written by Venice Williams, Partner/Attorney: Lewis, Smith & Company

Email: vwilliams@lswlegal.com