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Law Notes Land Law Notes

Licences And Proprietary Estoppel Notes

Updated Licences And Proprietary Estoppel Notes

Land Law Notes

Land Law

Approximately 987 pages

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Licences and Proprietary Estoppel

A. Bare licences

A bare license is a simple permission to enter land which can be terminated by telling the licensee to leave. Granting a license by deed makes no difference. The licensor must allow reasonable time to leave, which may vary from a matter of seconds to even months where a dwelling home is concerned; generally a ‘packing up’ period will suffice. They may subsequently be protected by estoppel or constructive trust. This will not be the effect of the bare license itself, but rather of other circumstances

B. Licences coupled with an interest

Proprietary interests frequently require access to land in order to be effective e.g. right to take things from the land of another. It is plain that in order to take a profit from the land of another, then access to that land will be required. The law has always regarded this license of having the same enforceability as the profit or other right to which it is attached. The interest may be in a chattel on the land rather than the land itself, although in most cases the chattel has been something which was originally part of the land e.g timber or crops.

C. Contractual licences

The effect of licenses created by contract has given rise to much debate and difficulty. The availability of equitable remedies for breach of contract has fuelled the argument that contractual licenses mat have greater effect than the mere revocable personal permission recognised by the common law. A significant analogy lies in the history of restrictive covenants: it was the willingness of the courts to give equitable remedies that lay at the heart of their recognition as proprietary interests in Tulk v Moxhay. The orthodox 19th Century position was that a licensor could terminate a license even if doing so was in breach of contract; the licensee might have a remedy for breach of contract but that was all. Recently mechanisms of protecting the interest have been developed, but the right still technically remains personal; strength of protection depends on the mechanism used.

1. Establishment

  • Tanner v Tanner [1975] 1 WLR 1346: D bought a house (on mortgage) for P & his children to live in; P left her old flat and moved in. P later offered D money to move out but she refused claiming a right to live there until the children had left school. P purported to terminate the license and brought possession proceedings. Denning MR:

    • Where there is good consideration then it may be implied that there is a contractual license; seems to think that the consideration here is giving up flat where she had protection of the Rent Acts.

    • If licence had been granted without consideration at all then could have been revoked at short notice.

    • Note that implied licence was not actually pleaded but the court thought fit to decide that there was one; would have been terminated in the event that she remarried; if not, then until the children left school.

    • Damages may be awarded to reflect expectation or estimated payment for surrender of licence.

  • Chandler v Kerley [1978] 1 WLR 693: P (new partner) but matrimonial home from H (D’s former partner). Relationship between P & D ended, and so P purported to terminate D’s licence. Lord Scarman:

    • D had given up her part of her share in the profits of the sale of the home as consideration that she could live there; the licence was therefore a contractual one.

    • Where the parties have contracted for a license, that will be protected by an equitable remedy.

    • In absence of an express stipulation thought that it was unfair to impose the burden of D and her children upon P for life; decided that the contractual licence was terminable on reasonable notice (12 months).

2. Effect on licensor

If a license is to have any chance of being a proprietary interest binding purchasers it must first be irrevocable by the licensor. The position as between licensor and licensee is both significant and disputed. Equity may intervene in such cases in one of two ways:

  1. There may be specific performance of the contract, and;

  2. Equity will prevent the licensor from revoking the license in breach of contract.

  • Winter Garden Theatre v Millenium Productions [1946] 1 All ER 678 (CA) and (HL): A granted M licence to use theatre for 6 months with option to continue foe further 6 months upon payment of increased rent. There was no express provision as to A’s right to terminate, but there was in relation to M. A tried to terminate.

    • Lord Greene (CA):

      • Question of whether or not a licence is revocable will depend upon the terms of the contract.

      • General rule is that before equity will grant an injunction there must be, on the construction of the contract (according to ordinary principles) , a negative clause express or implied; seems that giving option to continue implies a negative obligation not to revoke the licence.

    • Viscount Simon (HL):

      • A licence granted may fall into a number of classes:

        • Purely gratuitous: Revocable, subject to allowance of reasonable period for leave.

        • Licences for value: Can have payment once and for all, periodic payment, or value which constantly occurs (e.g. sale of a ticket to view particular event).

    • Lord Porter (HL):

      • Implicated agreement with idea that licences given for consideration should not be revocable once the performance of the act has begun.

      • However, thinks there is an important difference between saying that a limited and temporal licence may remain in force until fulfilled and admitting in general terms that once a licence is given it can never be terminated; the latter is against all historical accounts of licences.

    • Lord Uthwatt (HL):

      • Settled practice is that equity will do all it can by way of injunction to protect a bargain.

      • Propositions of law made by Lord Greene are unanswerable.

    • NB: House of Lords thought that on proper construction of the contract was a revocable licence.

  • Hounslow LBC v Twickenham Garden Developments [1971] Ch 233 at 242F-255A: C entered into...

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