L5 - Licences (rev notes) Flashcards
What is a licence ?
License = permission to do smth, granted by licensor to licensee
=> Vaughan CJ in Thomas v Sorrell (1673) : idea that licence doesn’t grant licensee a proprietary right, but “makes an action lawful, which without it had been unlawful” = allows him to be on the land
Licence ≠lease
if right has substantive characteristics of a lease (grant of exclusive possession for a term), cannot be a licence, whatever the parties choose to name it
licences ≠easements
permission vs right to do smth
=> the former is revokable and enforceable only ag the grantor, the latter is not
/!\ some rights are incapable of being E (eg Hill v Tupper) so will take effect as a licence +
/!\ even rights capable of being E won’t take effect as such if clear that parties don’t intend that
4 ≠types of licences
- licences coupled w/ an interest
- contactual licences
- bare licences
- estoppel licences
Effect on licensor - bare licence
Revokable at will -> licensor is not bound
Effect on licensor - exception of ‘periodic licences’ of a dwelling
licensee has limited protection under the Protection from Eviction Act 1977 = licence may not be terminated otherwise than by 4w notice in writing, and licensor may only recover possession via a court order
Effect on licensor - licences coupled w/ an interest
Not revokable as long as proprietary interest continues
Eg : grant of profit allowing A to cut wood on B’s land => licence must be implied into the ag bcs A cannot exercise right unless has permission to go onto B’s land
Effect on licensor - contractual licences (3)
used to be revokable at will (although licensor might have to pay damages for breach of contract at CL)
BUT now enforcable against the licensor according to its terms = Winter Garden Theatre v Millennium Theatre Production
=> if licensor seeks to revoke licence in breach of contract, licensee may seek an injunction to restrain the breach or an order for specific performance
Effect on successor in title - starting point
King v David Allen: orthodox position = contractual licence is not binding on successors of the licensor (but possible to sue licensor in contract for breach)
+ Reiterated in Ainsworth : wife’s personal right (/!\ not really a licence) not capable of binding H’s successor in title (bank) => to be overriding, interest must be proprietary – notice of a personal right not enough by itself to make it binding against a successor in title
Effect on successor in title - Lord Denning complicating things
Errington v Errington: licences cannot be revoked in breach of contract (equity will intervene) => licensee gets EI under the contract
=> “Neither the licensor nor anyone who claims through him can disregard the contract except a purchaser for value without notice.”
Binions v Evans : ag gave rise to a contractual licence, under which W had EI => EI binding on purchaser bcs undertaking to give effect to it lowered price
=> unconscionable to go back on that so court will impose CT
Effect on successor in title - bringing contractual licences back into their box
Ashburn Anstalt (obiter) brought contractual licences back in their box = they are not proprietary / binding on purchasers succeeding to licensor’s title (unless their conscience is sufficiently affected to impose a CT)
=> CA’s obiter remark followed in recent cases eg Lloyd v Dugdale (2002)
Effect on strangers - starting point
= Hill v Tupper: a contractual licence is not binding on a stranger to the contract
Effect on strangers - pb
= Manchester Airport v Dutton: licensee not yet in possession was held to have standing to evict 3P trespassers in order to give effect to his rights under the licence (bcs licensees who are in possession have standing to sue => shouldn’t be ≠)
Effect on strangers - criticism of MA v Dutton
Swadling : what gives licensee in possession standing to sue trespassers = fact of possession, not the licence – licence itself is a personal / contractual right = not enforceable by itself against anyone not privy to its creation
Chadwick LJ (dissenting) : “the plaintiff must succeed by the strength of his title, not on the weakness (or lack) of any title in the defendant” – and P’s title here not proprietary
