#17750 - Licenses Notes - Land Law

Licenses Notes

A – the licensor

B – the licensee

X – a third party who is a stranger to the property to which the license relates

C – a third party who has acquired the relevant right from A (fee simple, lease etc.)

What is the distinction between a property right and a personal right?

If B has a personal right against A, that right, by itself binds only A. A personal right is a right against a specific person. If instead B has a property right, that right is capable of binding not only A, but also third parties, such as C. This is because a property right is not simply a right against a specific person, but is a right which relates to something independent of a specific person, such as land.

What is a license?

The word ‘license’ simply means permission – a license is a liberty or a privilege to use someone’s land.

• Where A gives B permission to make a particular use of A’s land, B’s prima facie duty not to interfere with A’s land disappears – an otherwise wrongful act becomes permissible

  • Vaughan J said in Thomas v Sorrell that “A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which, without it, had been unlawful. As a license to go beyond the seas, to hunt in a man’s park, to come in to his house, are only actions which, without license, had been unlawful”

• Hohfeld says that “B is not granted any accompanying rights (or claims) that A or other persons shall not interfere with B’s [use of A’s land]”

The law distinguishes between four types of license:

1. Bare license –

   1. Acquisition –

      1. A bare licence can be granted expressly or by implication.

         1. Diplock LJ said in Robinson v Hallett that an example of a bare license arising by implication would be that of a householder not locking the front gate of a garden, giving an implied license to any member of the public who has a law reason to do so to proceed from the gate to the front door.

            1. Of course, such an implied license could be rebutted by the express refusal of it

   2. Revocation/Effect on Licensor –

      1. A is under no duty to B not to revoke the license. Per Alderson B in Wood v Leadbitter, “[A] mere license is revocable”

      2. A license will come to an end in the following ways:

         1. Where a bare license is for a certain period of time, it will expire at the end of that period unless extended

         2. A licensor may revoke a bare license at any time by giving notice thereof. If B is already on A’s land and A revokes, then B is given reasonable time to leave – the licensee does not automatically become a trespasser once the license is revoked (Winter Garden Theatre v Millennium)

         3. Per Terunnanse v Terunnanse, a license comes to an end if:

            1. The licensor transfers property to a third party; or

            2. The licensor dies

   3. Effect on Third Parties – how a license will affect a third party depends upon the nature of the third party in question:

      1. B’s Rights Against X –

         1. Where B has a bare license, per Hohfeld, the license does not impose a duty on X, a stranger, not to interfere with B’s use of A’s land

            1. BUT: B might be able to acquire an additional right alongside the bare license that would impose a duty on a stranger, X. For instance, Lord Upjohn’s analysis in National Provincial Bank v Ainsworth saw him hold that where B ‘house-sits’ for A whilst he is on holiday, where B occupies A’s land for the week, X is under a duty not to interfere with B’s occupation.

         2. The bare licensee has a liberty to enter upon or use another’s land but not a right – hence a bare licensee does not have a right capable of binding third parties (Hill v Tupper)

            1. Lord Wilberforce said in National Provincial Bank v Ainsworth that a criterion for a property right is a “degree of permanence and stability” which is absent due to the possibility of revocation

      2. B’s Rights Against C –

         1. A bare license does not count as a property right and so the original license will not bind C (National Provincial Bank v Ainsworth)

         2. However, a new direct right might arise against C as a result of C’s conduct through contracting for the purchase of the land

            1. BUT: In the context of a bare license there is no reason why A, in transferring to C, would take steps to ensure that C gives B a new direct right and there is no reason why C would give B such a right on his own initiative.

2. Contractual license –

   1. Content –

      1. A license granted by the terms of a contract. The terms grant the licensee a right to enter the land and the licensor is under a duty to allow the licensee to enter the land under the terms of the contract. A contractual licensee has a liberty to enter the land plus a right against the licensor

   2. Acquisition –

      1. A contractual license arises where a license is granted by the terms of a contract. The terms granting the license may be express or implied (Chandler v Kerley)

         1. In Tanner v Tanner there were no express terms at all – the license was entirely implied

         2. The implication of a license will be done according to the Contract law rules of implication

   3. Revocation/Effect on Licensor –

A contractual license will come to an end where:

1. A term of the contract provides that the license is to expire at a certain time or upon the occurrence of a certain event

2. Where the licensor properly exercises his power to revoke the license

   1. The contract might specifically confer this power

      1. Where it is absent, the courts will often imply a power to revoke upon giving reasonable notice

If A purports to revoke B’s license in breach of contract will this be effective (i.e. will specific performance be granted)? There are two parts of the case law:

Specifically Enforceable

Whether the license is revocable depends upon the terms of the contract – thus the licensor does not have the power to determine (bring to an end) the license in violation of the contract

• In Winter Garden Theatre, WG granted M a license to use C’s theatre. The license lasted for 12 months at 80/week. At the end of that period, the licensees had an option to continue the license at a certain rate. The express terms of the agreement said nothing about whether the licensor had the power to revoked at the end of the 12 months. The licensee took up the power to renew, but the licensor attempt to revoke.

  • Held: Lord Greene MR said that the question of whether the particular license is revocable is one of construction of the contract: it must be possible to imply a term permitting the revocation

• In Verall v Great Yarmouth, GY had agreed to allow National Front to use one of its halls for an annual conference. Soon after agreement, Labour took over for council, repudiating the contract. NF sought specific performance of contract. GY tried to argue that GY had power to revoke the licence even if in breach of contract.

  • Held: GY’s claim was not good law following Winter Garden.

    • Lord Denning said that the licensor can neither lawfully nor effectively determine the license. He referred to the useful example of a case where the Conservative Party had booked the hall, and the fact that it would not be for the Labour Council to say that the conference could not be held there. Specific performance, and not just damages, had to be available

• In Hounslow LBC v Twickenham Garden Developments, D refused to accept determination of his contract for construction; LBC brought action in trespass against D, seeking injunction to restrain them from remaining upon the land.

  • Held: The license was not a separate entity but one manifestation of the contract

    • The LBC could not revoke the license except for in accordance with the terms of the contract and thus the contract was specifically enforceable – the licensee could not be viewed as a trespasser on the land

      • Megarry J said that the license cannot be detached from the contract and separately revoked

Where the licensor attempts to revoke D’s license and breaches the contract in doing so, damages for breach of contract will be available.

Not Specifically Enforceable

This view states that a contractual license may be revoked in breach of contract and will not be specifically enforceable

• In Thompson v Park it was held that whether the license was rightly withdrawn or wrongly withdrawn was irrelevant – the licensee, once his license is withdrawn, has no right to re-enter the land per Goddard LJ

  • BUT: we need to view this case in its context: Goddard LJ said that “the court cannot specifically enforce an agreement for two people to live peaceably under the same roof”

    • It seems that the distinguishing feature will be the extent to which an onerous duty is imposed upon A

So if it is found that the contractual license will not be explicitly enforced, then will B count as a trespasser?

• If B is already on the property they will not be a trespasser and A cannot use reasonable force to remove them. They will need to apply to the court

• If B is not on the property, they will be unable to use force to gain entry.

  1. Effect on Third Parties –

B’s Rights Against X

Where a contractual licence is granted by A to B, A has a duty not to interfere with the use that B has a contractual right to; A’s duty arises due to the contract. X has made no contractual promise – they do not owe a duty to B.

However, where B acquires physical control of A’s land (acquiring a property right) X comes under a duty to B. It isn’t the licence but the property right arising by virtue of taking physical control.

• Manchester Airport plc v Dutton seems to go further than this though. The National Trust (A) owned some land adjacent to Manchester Airport...