knowledge 9 December 2025 |

Lease or Licence? An Irish lens on a recent UK decision

The parties’ document was headed “Agreement”, was consistently referred to as “the Agreement” and used tariff language for payments. The Court nonetheless analysed whether, in substance, it created a tenancy. Reading the terms as a whole (and despite the label “Agreement”), the Court focused on whether the rights granted created a tenancy as a matter of substance. It held that lease status failed for want of a term certain and that the arrangement operated as a contractual licence as the “best fit” with the parties’ bargain.

Although the judgment sits within a UK specific telecoms renewal framework, the principles have wider relevance.

Substance over labels

The core message is familiar: substance over labels. Irish decision makers likewise look past the badge on the document and test what rights of control were truly granted and how the arrangement works on the ground. Exclusive possession of clearly defined premises for a certain term remains a strong indicator of a lease.

By contrast, where the owner retains meaningful control—such as broad access and supervision rights, rights to share or to relocate the occupier, or where the occupier’s use is genuinely non-exclusive—these features point toward a licence. Exclusive possession is often necessary but is not sufficient if other retained controls are real and operative.

What made the difference in AP Wireless II, and why it matters

What made the difference in AP Wireless II was certainty of term. The agreement guaranteed ten years, then allowed termination on 12 months’ notice “on any day” thereafter. That structure failed the English term certainty requirement because the maximum duration was not ascertainable at the outset. The Court therefore concluded that the purported lease was void for uncertainty and, crucially, declined to “save” the arrangement as a periodic tenancy. Instead, it treated the agreement as a contractual licence on the same commercial terms, aligning the legal characterisation with the parties’ documented bargain, notwithstanding the presence of exclusive possession.

An Irish perspective on term certainty

We see no definitive line of Irish appellate authority applying or rejecting the English “certainty of term” doctrine in a comparable modern commercial context. Irish landlord tenant relations are founded in contract, and when duration questions arise the Irish tendency has been to uphold ongoing occupations as tenancies where possible—typically by recognising periodic tenancies, rather than finding a contractual licence. The point remains open in Ireland, and outcomes are fact sensitive. In practice, however, Irish courts scrutinise whether the arrangement confers exclusive possession for an ascertainable period and give effect to meaningful owner controls where those are genuinely reserved and exercised.

Practical drafting implications

In both jurisdictions, the words used still matter. Clarity reduces risk. Open-ended formulations invite arguments about what, in law, has been granted and create avoidable uncertainty. If the intention is a lease, use a fixed term or a true periodic structure with clear cycles and notice mechanics that are ascertainable from day one. If the intention is a licence, ensure the drafting preserves genuine shared control—such as inspection, supervision, sharing and relocation rights—and avoid conferring exclusive possession.

Bottom line

The key questions remain: who truly controls the space, and for how long? AP Wireless II is a timely reminder to secure clear answers—both on the page and on the ground.