9. General principles for determining whether agreement creates lease or licence.

Save in exceptional circumstances, an agreement creates the relationship of landlord and tenant, and not that of licensor and licensee, where the following are present1:

  1.  

    (1)     there is the grant of exclusive possession2;

  2.  

    (2)     the grant is for a fixed or periodic term3;

  3.  

    (3)     there is consideration of a premium or periodical payments4.

Where the agreement is made in writing, the question whether it creates a tenancy or a licence is determined by a consideration of the substantive terms of the agreement and not by the labels or terminology used5. The professed intentions of the parties are not determinative in