The retention of keys is another mechanism by which landlords can claim that the person occupying the property does not have exclusive possession and therefore must be occupying under a licence as opposed to a lease. This was an issue in both Aslan v Murphy which we’ve just looked at and also in the case of Duke v Wynne. In Aslan v Murphy the agreement provided that the landlord would retain the keys to the property so that he could provide services. However, when the courts examined what actually happened they found that no services were ever provided and the clause was a sham clause. Therefore a lease rather than a licence had been created. As the courts held, it was not a requirement of a tenancy that the occupier should have exclusive possession of the property. What matters is what underlies the provision as to the keys. Why does the owner want to retain the key? For instance if the reason for retaining keys was so that the owner could genuinely provide services such as in a hotel for instance where the owners of the hotel retained a key to access the rooms for cleaning, providing room service etc. then the occupier of a room would not have exclusive possession and therefore a licence rather than a lease would be created. However, where the keys were retained for emergency access or to read meters etc. then this would not impinge on the occupier’s exclusive possession of a property and therefore the retention of a key would not mean that there was no lease.
