Licences and Rights of Residence - Key Cases and Legislation (including proprietary estoppel)

Question 1

DPP v Gaffney

Answer 1

Henchy J = “It does not follow that because a person who enters a dwelling is not an invitee he is automatically a trespasser. He may be lawfully on the premises as a licensee, express or implied. The test is whether the person claiming the householder’s rights could succeed in an action in tort for trespass….
Good defence to such an action that the defendant was at the relevant time on the premises by leave or licence, express or implied, of the plaintiff or of the person entitled to give such leave or licence [which is a question of fact]”.

Henchy J saying – 1. Ask was the entrant legally entitled to be there (Implied licence, express licence, common law or statutory authority)? If so, were there any limits placed on that permission? 2. Was the licence was revoked, if there was a licence?

Question 2

Lambert v Roberts

Answer 2

• Donaldson LJ (others agreeing):
• Facts of case
  Was licence revoked?
• “Absence of locked gate or police keep out sign, police officers, like all other citizens, have an implied licence to enter upon a driveway and to approach the door of a dwelling-house if they have, or reasonably think that they have, legitimate business with the occupier. But it is a licence which is revocable without prior notice”.
• Defendant’s conduct finding – Licence revoked
• Once the licence was revoked, the police officers were under a duty to withdraw from Mr. Roberts’ property with all reasonable speed and, if they did not do so, they were not thereafter acting in the execution of their duty. (See Davis v. Lisle)
• Note – S7 RTA 2010 confers on AGS right to enter onto dwelling property for breathalyser sample? But not the dwelling house (Article 40.5) so need warrant for the house

Question 3

Snook v Mannion (English Divisional Court)

Answer 3

• Ormrod LJ:
• Lambert v Roberts and Robson v Hallett – In the absence of locked gate or express rebuttal, implied licence to all members of the public and the police who know/believe have lawful business with the occupier to go front/back door and seek admission
• Gilham v Breidenbach – Whether ‘fuck off’ vulgar expression or revocation, matter of fact for judge in case taking all the circumstances into account
• Unrealistic to hold that a police officer may not effectively ask for a breathalyser sample of anybody who is not on a public road
• Current case – Argument based on conduct not express words so police on property on general implied licence

Question 4

CIN Properties v Rawlins [1995] (HoL)

Answer 4

• Balcombe LJ:
• Facts of case
• Uston v Resorts International Inc (1982) – “NJ SC…Property owners open to the public have a duty not to act in an arbitrary or discriminatory manner toward persons who come on their premises”.
• Based on NJ SC in State v Schmid – No equivalent of first Amendment in English law
• Harrison v Carswell (Canada SC) – Employee of a shop in a shopping centre picketing employer against SC owners, SC owners allowed injunction; Laskin CJC’s dissent – Shopping centre was freely accessible to the public, the public did not enter under a revocable licence subject only to the owner’s whim, only revoke if misbehaviour or unlawful behaviour – Respects all parties’ commercial interests
• Section 18 of the Highways Act 1971 and section 35 of the Highways Act 1980 which replaced it – Section 18(5) provides, inter alia:
  (5) A local highway authority by whom an agreement under this section has been made may make byelaws regulating —
  (a) the conduct of persons using any walkway to which the agreement relates;
  (b) the times at which any such walkway may be closed to the public
• CIN had the right, subject only to the issue under section 20 of the Race Relations Act 1976, to determine any licence the respondents may have had to enter the centre

Question 5

Appleby & Ors v UK

Answer 5

• Judgment:
  1. General Principles:
• Article 10 – FoE
• Free expression important – State duty not to interfere and may require state to take positive measures (Ozgur Gundem v Turkey)
• Positive obligation question – Balance interests, depends on situation and priorities/resources, no disproportionate burden on authorities (Rees v UK)
  2. Application to the Present Case
• Also have right to SC owners property rights under Article 1 of Protocol 1
• Shopping centre not just shops, entertainment and gathering activities and events – Like town centers; Current case applicable and SC close to public services and facilities – Quasi-public space argument
• US cases – Not held that constitutionally protected free expression rights in privately owned shopping centre although interest in permitting it
• Judgment:
  1. General Principles:
• Article 10 – FoE
• Free expression important – State duty not to interfere and may require state to take positive measures (Ozgur Gundem v Turkey)
• Positive obligation question – Balance interests, depends on situation and priorities/resources, no disproportionate burden on authorities (Rees v UK)
  2. Application to the Present Case
• Also have right to SC owners property rights under Article 1 of Protocol 1
• Shopping centre not just shops, entertainment and gathering activities and events – Like town centers; Current case applicable and SC close to public services and facilities – Quasi-public space argument
• US cases – Not held that constitutionally protected free expression rights in privately owned shopping centre although interest in permitting it
• Demographic, social, economic and technological changes do not necessitate the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance).
• Access bar prevents effective exercise of FoE or essence destroyed; the State may have obligation to protect convention rights. “A corporate town where the entire municipality is controlled by a private body might be an example (see Marsh v. Alabama).
• Current case – FoE not prevented as applicants could still get permission for leaflets from individual business managers or distribute leaflets on public access paths in the area or campaign in old town centre
• May have been more effective but not eliminated by SC refusal
• Same reasoning for Article 11 – FoA
• Maruste J (dissenting):
• Increased privatisation of services e.g. health, post, transport – State duty to ensure balance question
• Important public services located near or in the centre
• Public authority and public money involved in project
• Public interest to permit reasonable exercise of individual rights and freedoms including speech and assembly on privately owned SC. Not make some public services and institutions inaccessible to public participants in demonstrations
• Public topic and lawful behaviour
• Can’t use privatisation to abnegate public authorities’ responsibilities to ensure respect of public interest and individual’s rights
• No longer absolute discretion to eject people without reasonable grounds
  effective exercise of FoE or essence destroyed; the State may have obligation to protect convention rights. “A corporate town where the entire municipality is controlled by a private body might be an example (see Marsh v. Alabama).
• Current case – FoE not prevented as applicants could still get permission for leaflets from individual business managers or distribute leaflets on public access paths in the area or campaign in old town centre
• May have been more effective but not eliminated by SC refusal
• Same reasoning for Article 11 – FoA
• Maruste J (dissenting):
• Increased privatisation of services e.g. health, post, transport – State duty to ensure balance question
• Important public services located near or in the centre
• Public authority and public money involved in project
• Public interest to permit reasonable exercise of individual rights and freedoms including speech and assembly on privately owned SC. Not make some public services and institutions inaccessible to public participants in demonstrations
• Public topic and lawful behaviour
• Can’t use privatisation to abnegate public authorities’ responsibilities to ensure respect of public interest and individual’s rights
• No longer absolute discretion to eject people without reasonable grounds

Question 6

Sky City Auckland v Wu (NZ)

Question 7

Wood v Leadbitter

Answer 7

• Alderson B:
• (Aside = Thomas v Sorrell – Lord Vaughan CJ = Licence makes an action lawful which would otherwise be unlawful, no interest or transfer in property. By implication, licence may alter or destroy property e.g. licence someone to eat their meat
• Brooke’s Abridgment – “A licence is in its nature revocable” but where comprises of grant or is connected with a grant, cannot revoke the licence to defeat the grant
• Wood v Manley – Licence coupled with interest so irrevocable
• Hewlins v Shippam – Need a deed to create any incorporeal right in land regardless of valuable consideration and no deed in present case so no grant so licence revocable

Question 8

Hurst v Picture Theatres Ltd (English CoA)

Answer 8

• Buckley LJ:
• Facts of case
• Respected patron doesn’t like the person in front of them; A,B,C revoke same seat analogy
• Wood v Leadbitter – Licence connected with a grant cannot be revoked; Alderson B – No deed/nothing under seal – No grant
• Current case – Licence coupled with a grant as licence a means to exercise the right granted to see the film
• WvL = Pre-equity
• Frogley v Earl of Lovelace – Question of revoking a lease not under seal; No CL right but injunction in equity
• Kennedy LJ:
• Facts of case
• Equity now exists – No requirement for deed
• McManus v Cooke – Kay J = Equity applies where defendant’s advantage would be enforceable by the courts at law if written agreement

Question 9

• Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173

Question 10

• London Borough of Hounslow v Twickenham Garden Developments [1971] Ch 233

Question 11

King v David Allen & Sons Ltd [1916] (HoL)

Answer 11

• Lord Buckmaster:
• Facts of case
• Agreement created a licence not an estate in land
• Contract between the two parties created a personal obligation only – Licence for good and valuable consideration to last a certain time
• No precedent for binding third parties
• Damages as took away rights

Question 12

Errington v Errington

Answer 12

• Denning LJ:
• Couple never bound themselves to BS payments
• Not tenancy at will as relationship not determinable by either party on demand
• Assume father not bound to transfer the house if failed to pay off the instalments
• Not be revoked but could cease to bind the father if son/DIL’s obligations incomplete and underperformed – Same position in father’s death as in his lifetime
• Licensees with contractual equitable right to remain as long as paid instalments and equitable title once mortgage paid off
• Tenancy – Exclusive possession (Doe v Chamberlain) or if not – Licensee (Peakin v Peakin)
• EP but not tenant in Booker v Palmer – Intention of the parties – Circumstances and conduct
• Current case – No intention to create L/T relationship but contractual licencees in equity
• Equity will not allow a contractual licence to be breached (Winter Garden Theatre) or a promise even if no value given (Foster v Robinson) except purchaser for value without notice
• Current case – Express promise to couple that property belong to them once paid off mortgage; Implied promise that pay BS instalments, remain in possession – Acted on the promise
• Hodson LJ:
• Personal contract – Mother bound as father’s successor

Question 13

Binions v Evans [1972] (English CoA)

Answer 13

• Denning LJ:
• Facts of case – Agreement = Tenancy at will rent free for rest of life subject to conditions
• Widow being able to stay for rest of life inconsistent with TW and tenancy for life
• Shell Mex v Manchester Garages – Licence as personal privilege
• Equity – Landlord can’t turn out licensee in breach of contract (Foster v Robinson) nor can purchaser turn out if bought with knowledge of right (Errington)
• Browne v Warner – Construe in equity as if were agreement giving lease of house for life (widow scenario) – Equitable interest in the land
• Agreement for sale stipulated subject to widow’s right – CT as inequitable to turn out (Bannister v Bannister)
• Benefit of a party not subject to the contract but case of equity coming to the aid of the common law
• David Allen – If had stipulation in contract saying take subject to the rights of David Allen, would have had a different result
• Implied subject to where license in actual occupation of the land (Hodgson v Marks)
• Follow Errington – Actual occupation, only purchaser for value without notice can disregard

Question 14

Ashburn Anstaldt v Arnold [1989] Ch 1

Answer 14

• Commercial case for sale of land. Someone buys land in the express knowledge that the previous licence to Ashburn. Trying to enforce licence against new title holder. Conscience of purchaser not affected as didn’t actually get anything, just knew about the licence.

Question 15

Willmott v Barber (Endorsed in Smith v Ireland)

Answer 15

Fry J’s 5 rules for acquisence/improvements believing owned land cases:
1. Plaintiff must have made a mistake as to their legal rights
2. Plaintiff – Money/Act in reliance
3. Defendant must know of existence of own right inconsistent with plaintiff having rights claimed
4. Defendant know of plaintiff’s mistaken belief
5. Defendant encourage plaintiff to spend money/do act by positive act or abstention

Question 16

Wayling v Jones [1993] (English CoA)

Answer 16

• Balcombe LJ:
• Proprietary estoppel rules:
  (1) There must be a sufficient link between the promises relied upon and the conduct which constitutes the detriment—see Eves v. Eves
  (2) The promises relied upon do not have to be the sole inducement for the conduct: it is sufficient if they are an inducement — Amalgamated Property Co. v. Texas Bank .
  (3) Once it has been established that promises were made, and that there has been conduct by the plaintiff of such a nature that inducement may be inferred then the burden of proof shifts to the defendants to establish that he did not rely on the promises— Greasley v. Cooke
• Explicit promise to get “everything after I’m gone”’; would have left if not getting the business; no discharge of shifted onus

Question 17

Smyth v Halpin [1997] (HC) (son builds extension because of father’s promise)

Answer 17

• Geoghegan J:
• Facts of case
• Dilwyn v Llewelyn – The extent of the estate to be handed over was determined not by what was in the document but by the nature of the transaction and the entitlement then to that estate arose by reason of the expenditure acquiescence
• Applied in Inwards v Baker – Purchaser with notice would be bound by the equity if the father sold the house – Expenditure of money by a person in actual occupation of the land when led to believe that as a result of that expenditure allowed to remain there. Court to say what way the equity can be satisfied
• Pascoe v Turner – Court should consider based on all the circumstances, what is the minimum equity requited to do justice having regard to the way the defendant changed her position for the worse by reason of the acquiescence and encouragement of the legal owner. Grant a remedy that gives the defendant security of tenure and quiet enjoyment
• Current case – Vest house in plaintiff

Question 18

O’Rourke v O’Rourke [2018] (HC)

Answer 18

• Bronagh O’Hanlon J:
• • McGuinness J. in C.D. v. JDF – “there must actually be a promise or at least a reasonably clear direct representation or inducement of some kind”; insufficient that thought something was permitted to happen or that third parties looking at this situation thought that a particular outcome was likely”
• Blayney J in Haughan v Rutledge – Hope and expectation not encouraged by the defendant = No PE
• Current case – Credibility issues

Question 19

McMahon v Kerry County Council [1976] (HC)

Answer 19

• Finlay P:
• Ramsden v Dyson – Stranger builds on land believing own land and knowing of mistake abstain knowing own land
• Not applicable as plaintiffs not wilfully passive
• Could recover if stranger knows land mine
• Also have regard to actions of the defendant and consequences and justice for both P&D – Equity is a court of conscience
• Plaintiffs BF purchase intending to build a school – Community benefit; clear that no PP if building a private residence
• Lands enclosed by a wall and not identifiable as a separate unit
• Land has no sentimental value to the plaintiffs
• Council avoidable mistake but plaintiff inactivity and no fencing; land used to build to houses. Bought land for£40, now worth £18,000
• Unconscionable if plaintiffs allowed to recover

Question 20

McCarron v McCarron [1997] (SC)

Answer 20

• Murphy J:
• Facts of case
• Have regard to the cultural context around the agreement – Reticence in West of Ireland to pursue a discussion to a natural commercial conclusion; some rural areas – meeting of minds can be achieved without as detailed a discussion as might be necessary elsewhere
• Plimmer v Wellington Corporation – Where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land will be made over to the person so expending his money
• Don’t confine to just spending money – May suffer as severe a loss or detriment by providing his own labours or services in relation to the lands of another and accordingly should equally qualify for recognition in equity

Question 21

Pascoe v Turner (CoA) (House and everything in it is hers)

Answer 21

Cumming Bruce LJ
- DvL - Equity won’t complete the title to a mere gift but subsequent acts may give a right of land é.g. Right to build a house
- Crabb v Arun DC - Since, Ramsden, court discretion to decide nature and extent of equity
- Concerns about a licence

Question 22

Inwards v Baker (QB)

Answer 22

DvL, Plimmer, Ramsden - Landowner requests/allows spend money - Allowed to stay
Plimmer - Look not just to express words but to conduct and all circumstances