#3529 - Licences And Leases - Land Law

LICENCES & LEASES

• Creation

• Bare & contractual licences

• no formalities(not rights in rem) +can’t be registered under LRA + don’t constitute overriding interests

• Licence coupled w/an interest = right in rem formality rules apply (a deed in writing)

• Types

1. Bare

• Explicit/tacit gratuituous permission to be on the land

• Duration

• licensor states a limit -once expired, licensee is a trespasser

• licensor can revoke b/f expiration but must announceit so that it takes effect after reasonable delay

• unclear if must be enough time to make other arrangements or just to pack up

• operates in personam- can’t bind TP

2. Contractual Licence

• A’s obligation may be

1. express contr. term

2. implied contr. term (as to give business efficacy to more explicit aims of contract) (Tanner v Tanner)

• Contract may give B

1. the right alone

2. the right enabling B to perform obl. which contract imposes on him (B employed to work A’s farm)

• NB: contract may be b/w A&B, or A &TP for B’s benefit – 1999 Act applies.

• Duration & Licensee’s rights against Licensor

1. Licensee must keep within confines of the licence

2. Licensor can terminate in acc w/contract = no problem

3. Licensor gave open ended permission can terminate prematurely w/notice only if:

1. It’s in acceptance of early repudiatory breach by licensee

2. It’s in breach of terms of contract licensee in principle has 2 options

1. accept breach & seek damages for loss

2. affirm the contract, maintaining the obl. for him & licensor can only do this if can continue performance w/out co-op of licensor

• May seek injunction to prevent licensor’s early breach or specific performance to enforce it though court prefers injunction

• Hurst v Picture Theatres – licensee can have equitable relief (injunction, spec. performance) against breach preserving landowner’s obligation to allow trespass

• Winter Garden Theatre v Millennium Production – licensee who refused to accept unauthorised repudiation of a licence is entitled to protection of injunction or spec. performance just like a licensee who received no notice of revocation

• Effect on TPs

• Licenseeis in physical control of licensor’s land =TP is under duty not to interfere, if he does, licensee can claim possession

• Purchaser, if bound, through equitable interestonly but modern authorities say not bound at all

• Licensee’s rights against TP who’ has been given inconsistent right by Licensor

1. C, licensor, has acted in such a way as to grant a new, direct right against C to licensee

1. Tort of procuring breach - doubtful

2. 1999 Act - allows B in certain circumstances to acquire direct right against C as a result of contractual promise made by C to A

3. CT –P acquired land from seller who granted license to B & acts in such a way that it would be unconscionable for him to then ignore it

• Binions v Evans– enough P took ‘subject to B’s right’ (price reduced b/c of it = unconscionability)

• Denning: P can take “subject to” other party’s right expressly or impliedly CT may be imposed. NB: not shared by other judges.

• Ashburn v Anstalt – not enough P took subject to B’s rights – key: whether C, when acquiring land, made express/implied promise to give B a new right (i.e. to protect it) – conscience must be affected.

• CT attaches to P, not land – next owner not affected w/out fresh unconscionability

2. B has a pre-existing property right which he can assert against C

1. Contractual licence is in personam + not part ofnumerusclausus

• King David Allen - K claimed its action caused the bill posting company no loss b/ctheycould assert thelicencegranted by K as right in rem against PH, subsequent owner. Held: agreement in personam - could be enforced against K only.

• Ashburn v Anstalt– contractual licence = a right in personam only right!!!

2. Contractual licence is in rem – neither licensor nor anyone who claims through him can disregard the contract except P for value w/out notice

• Errington v Errington - E bought a house for son & daughter in law who lived there; installments for partial mortgage paid by them. E promised they could occupy as long as paid + once paid, it’s theirs. E died, daughter remained – E’s wife unsuccessfully claimed possession. Denning relied on licence as proprietary interest.

3. Licence coupled with an Interest

• Operates in rem

• Licensor can terminate prematurely

• 2, possibly 3,types of rights:

1. A right in rem in land – a profit, a right entitling licensee to take something from it

2. A right in rem in chattels (property other than land) situated on licensor’s land

3. A right of any other kind (e.g. a right to enter cinema in order to see a movie) – some authority on that, but not much

• As a matter of authority, not much support for existence in law

4. Estoppel Licences

• What constitutes it?

• C’s normally a licensee b/fseeking estoppel remedy – not essential!

  1. C occupies/ exercises rights over land in the belief he has a right to do so

  2. acts to his detriment

  3. owner is aware of it

• 2 forms of existence:

1. the right assumed/expected is in nature of licence (lack exclusive possession, term or rent)

2. court gives it as a remedy

• Effect on Ps

1. Generally: capable of binding Ps of...