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Dr Una Woods delivered a conference paper entitled ‘The Lease/Licence Distinction in Irish Law: The Case for a Dual System of Statutory Guidelines’ at the Biennial Modern Studies in Property Law Conference in Queens College, Cambridge University on March 26, 2024. This conference is a world-leading forum for scholars with research and teaching interests in property law. It attracts an international body of delegates (including delegates from the US and Australia). Hart publishes peer reviewed papers from the conference in its the well-regarded book series, Modern Studies in Property Law.

The lease/licence distinction is a perennial problem which regularly comes before the courts. Irish case law on this topic typically involves commercial occupants. The courts have yet to address the issue in a comprehensive fashion in the context of a residential occupancy. In determining if an arrangement amounts to a lease or a licence the courts have attached considerable significance to the subjective intentions of the parties as expressed in the agreement. It is arguable that less importance has be ascribed to ascertaining objectively whether the elements of a tenancy exists ‘on the ground’. In the Irish residential rental sector, the Residential Tenancy Act 2004, as amended, has created an increasingly regulated environment conferring substantial protections on residential tenants and correspondingly onerous obligations on residential landlords.

The current high demand for rental properties coupled with low supply and high levels of regulation creates a very real risk that landlords will attempt to evade their statutory obligations by getting tenants to sign a carefully drafted (and potentially bogus) occupation agreement which could be construed as conferring a licence rather than a tenancy.

This paper explores how the Residential Tenancy Tribunals have approached the lease/licence distinction and makes the case for the introduction of a statutory presumption of a tenancy where exclusive possession of a dwelling exists ‘on the ground’ which could trump the expressed intention of the landlord.