Ch 21 Licence Flashcards
What is Hohfeldd’s view about the word ‘right’?
It covers different situations:
1. A under a duty to B not to poison B's food -> B has a Claimed right 2. until A revokes his permission, B is not under a duty to A not to be on A's land -> B has a privilege or liberty
What is the difference between a legal easement and a licence?
Legal easement:
- A under a duty not to interfere with B's liberty + the rest of the world under a duty not to interfere. - easement => legal interest in land
Licence:
- B has a liberty to make some use of A’s land + that liberty is not part of a legal or equitable property right held by B.
What’s the issue in Street v Mountford?
- The contract described B’s right as a ‘licence’ -> but HL held that is a lease.
- Thus B had a legal property right in A’s land.
What is the definition of a Licence?
B has a licence where he has:
1. a liberty to make some use of A's land; and 2. That liberty is not part of a property right held by B.
- BARE LICENCES - What is it?
It is the simplest form of licence.
It exists where B has a liberty to make some use of A’s land and A is free to revoke that liberty -> i.e. A not under duty.
Can a bare licence be implied?
Yes. e.g. a collector for a charity, unless expressly warned otherwise, hasa bare licence to come onto A’s land and knock on A’s door to pursue his lawful business.
2.1 B’s rights against A - what would B be if B goes to A’s land after A revoke?
B commits the tort of trespass.
What’s the problem if A revoke while B is on A’s land?
Given A’s initial invitation and B’s reliance on that invitation by coming onto A’s land, the law does not allow A’s revocation of the licence to turn B immediately into a trespasser.
What is the case Winter Garden Theatre v Millennium Production about? Judgment?
A(Winter Garden) made contractual promise to B(Millennium) to use the theatre with payments. Contract said nothing abt A’s ability to revoke. A revoked & give 1 month’s notice.
HL: for A.
Viscount Simon: ‘…is in effect an authority which prevents B from being regarded as a trespasser…’
What is Hill’s two categories of bare licences? what are the methods?
- ‘one-sided’ licnece
- in which the doctrine of proprietary estoppel does NOT impose a duty on A.
under what circumstances will B has a right against X?
If B, as a result of having possession of A’s land, has a legal estate in land - a freehold, then X under duty not to interfere.
- X’s duty does not arise becoz of B’s licence;
- The right is acquired independently of A.
2.3 B’s rights against C - under what cir. would this happen?
If B has a bare licence and A then gives C an inconsistent right,e.g. by transferring his freehold of theland to C.
What two ways do B have against C? Explain them.
- Direct rights
- it may be that C has acted in such a way as to give B a new, direct right against C.
- e.g. C and B had contract -> but unlikely to happen in real world.
- A pre-existing property right?
- Why licence does not count as a property right?
- First, the numerus clausus principle (LPA1925, ss1 and 4) -> a closed list of legal & equitable rights in land.
- Further, HL in National Provincial Bank v Ainsworth:
- licences do not form part of the list.
- Why licence does not count as a property right?
What are the criteria laid down by Lord Wilberforce in National Provincial Bank v Ainsworth for a right or interest to be admitted into the category of property? and why does bare licence not fit it?
it must be definable, identifiable by 3rd parties, capable in its nature of assumption by third parties, and hv some degree of permanence or stability.
a bare licence lacks the quality of ‘permanence and stability’ -> it can simplybe revoked by A.
What is a contractual licences? Example?
A contractual licence exist where B has a liberty to make some use of A’s land and A is under a contractual duty to B not to revoke B’s licence.
E.g. if B pay A $500 up front and share occupation of A’s house for 3 months -> not give B a lease coz not hv a right to exclusive possession of any land -> a contractual licence.
- Note: A’s duty is not absolute -> hv an implied power to revoke in certain cir., e.g. B is stealing from A.
What is the issue in Tanner v Tanner? Judgment?
Facts: A & B never married, B gave birth to twins, moved in A’s house. A married another woman and removed B and twins.
CA: A breached contractual duty to B.
Note:
- the approach in the case is described as a very creative approach to find a contractual licence -> BUT a contemporary court is unlikely to adopt it.
- Nowadays, Parliament has recognised particular policy need.
- Children Act 1989, s15 and Sch 1
- impose a duty on a party such as A to allow B and children to remain in occupation of particular home until
leaving school.
3.1 B’s rights against A - what are them?
- prevent A from breaching contractual duty not to revoke B’s liberty to occupy A’s land.
- pay damages -> as in Tanner as it is too late for the court to protect B in the 1st way. -> damages aim to put B, as far as possible, in the positionin which she would hv been had A kept his contractual promise.
3.1.1 - Is A’s actual or threatened conduct a breach of contract? What case is relevant? What is the key point in it?
Winter Garden Theatre v Millennium Productions
- Lord Macdermott:
- ‘…in this contract there should be implied a stipulation to the effect that, after the expiration of the first yr, the licence might be terminated by the licensors on the expiration of a reasonable notice period duly communicated tothe licensees’
+ 1 month -> reasonable -> thus A not breached contract.
3.1.2 If A’s conduct is a breach, how will a court respond? Relevant cases?
Court’s attitude:
- Preference for protecting B’s contractual licence, rather than allowing A to breach it and leaving B to claim money from A.
Verrall v Great Yarmouth BC [1981]
- A (Great Yarmouth BC) made a contractual promise to allow National Front use a hall. Later revoked. B (verrall) suing on his own behalf + representing all members of NF org - Held: for B. (A had breached) -> grant an order forcing A to perform its contractual promise.
What are the two questions in Thompson v Park?
- whether, if B had applied to court after leaving A’s land, a court would order A to perform his contractual promise to share occupation with B.
- Goddard LJ:
- since relationship had fallen -> better for both if B settle for damages.
- thus, court not always take the protective way. - whether, if A revokes his licence in breach of contract, B can the insist on re-entering A’s land.
What is the case Hurst v Picture Theatres Ltd [1915] about?
Facts: movie ticket, forced to leave, reasonable force.
Held: B entitled to substantial damages.
Note:
- A’s revoke does not turn B into a trespasser ->
- -> means that A is not allowed to use reasonable force to remove B from the land.
3.2 B’s rights against X - contractual licence
X is under no contractual promise to B.
What is the legal issue in Manchester Airport plc v Dutton and ors?
Facts: B build airport, A allow B to enter and cut trees, X interfere before B start.
CA: if A gives B a contractual licence permitting B to take physical control of A’s land, X can be under a duty to B even before B
goes onto A’s land.
Note:
- CA ALL agreed: if X interfere after B had gone into occupation of the land -> B can bring claim for possession against X. - Chadwick LJ dissenting on the issue that: - in this case it is before B start -> where B has only a contractual right against A -> no reason impose duty on X.
(consider Hill v Tupper, the hired boat on canal case)
What is the legal COMMENT in Manchester Airport plc v Dutton and ors?
- It could be sen as part of a deliberate move to icrease the protection given to a contractual licensee against 3rd parties.
- Swadling:
- criticizes the decision for blurring the divide between personal rights and property rights
- Others:
- see it as taking a welcome step towards allowing contractual licences to count as property rights.
- 3 B’s right against C
- assume the priority triangle.
3.31 Direct rights - what are the three principles?
- The tort of procuring a breach by A of A’s contract with B
- The Contract (Rights of 3rd Parties) Act 1999
- The ‘constructive trust’ principle in Binions v Evans.
