Licenses and Rights of Residence

Question 1

Licenses

What does a license allow?

Answer 1

A licence is a permissive right: the licensee is granted the right to possess and occupy the land of another.
 It doesn’t bring any freehold or leasehold rights with it. It is not a proprietary interest.
 A licence doesn’t pass ownership, but makes an action lawful that would otherwise have been unlawful (Thomas v Sorrell [1673])

Question 2

Licenses - Bare Licenses

What is a bare license?

Answer 2

BL: A mere permission given and received without any supporting contract, consideration or legal relationship. At common law, it is revocable at any time by the licensor and licensee becomes trespasser

Question 3

Licenses - Bare Licenses

Winter Garden Theatre v Millennium Productions [1948]

Answer 3

• A licensee is entitled to reasonable notice to leave. If he isn’t give reasonable notice, he’s entitled to a “packing-up period” i.e. a reasonable time to leave with his goods/belongings.

Question 4

Licenses - Bare Licenses

Pascoe v Turner [1979]

Answer 4

However, equity can disallow an at-will revocation:
- Held if a licensee has acted in reliance on the licence and will incur a detriment on its revocation, the licensor may be estopped from revoking it.

Question 5

Licenses - Bare Licenses

Liggins v Inge [1831]

Answer 5

• A bare licence may become irrevocable if a licensee has acted on it, but this limit on revoking appears to apply only to licences to do a particular act (construct a house) not ones to engage in repetitious act

Question 6

Licenses - Bare Licenses

Davis v Lisle [1936]:

Answer 6

An invitation to a friend’s house is an express bare licence. But the permission can also be implied, You exercise an implied bare licence to be in a shop to engage in commerce.

Question 7

Licenses - With an Interest

When does it arise?

Answer 7

If someone has a proprietary interest over the land of another, such as a profit a prendre, that wouldn’t be exercisable without a permission to use the land, a licence is said to attach automatically to the interest.

Question 8

Licenses - With an Interest

Muskett v Hill [1839]

Answer 8

• Such a licence is irrevocable as the interest it is attached to is irrevocable.
• And as the licences is attached to the interest, it is thus transferred with it and will continue in force until such time as the interest involved has been discharge.

Question 9

Licenses - With an Interest

Woods v Donnelly [1982]

Answer 9

• Profit a prendre given by W to ‘D only’. Held not revocable as against D but that the contract expressly limited the interest in the land to D + neither prop right nor licence would pass to successors on death

Question 10

Licenses - Contractual

What is it? also Tanner v Tanner [1975]

Answer 10

A licence that may be granted by a contract or arise as the implicit product of/ancillary to a contract:

• P bought house when D gave birth to their twins. D moved in. P later offered D £4k to leave but D refused claiming she owned it until the twins left school.
• P wrote to D via his solicitor revoking her licence + brought possession proceedings: court inferred a contract bw them that carried a contractual licence for D to reside in house while kids in school.

Question 11

Licenses - Contractual - Revocation

What is the position at common law?

Answer 11

At common law, contractual licences could revoked at will even in breach of the terms of the licence itself, so equity developed an entitlement to legal or equitable redress for revoking a contractual licence

Question 12

Licenses - Contractual - Revocation

Whipp v Mackey [1927]

Answer 12

• Now, while doctrinally speaking these licences remain revocable, contractual licences can be only be revoked without compensation in compliance with the terms of the licence itself.

Question 13

Licenses - Contractual - Revocation

Winter Garden Theatre v Millennium Productions [1948]

Answer 13

• If the contract doesn’t have a term for revoking the courts can imply term w ‘reasonable’ notice period.
  If a licensee is ejected in breach of contract or without providing reasonable notice, he can:
  (1) Sue for breach of contract (Wood v Leadbitter – results in damages rather than right to repossess)
  (2) Seek an injunction to prevent removal and
  (3) Sue for assault if force was used: Hurst v Picture Theatres

Question 14

Licenses - Contractual - Revocation

Hurst v Picture Theatres [1915]

Answer 14

• P gained a contractual licence to enter the cinema + watch the film he paid to see. Paid + got ticket.
• Then accused of not paying for it + forcibly removed thus revoking the licence. Held implied term in the contract it wouldn’t be revoked til movie was over. But noted it could be trumped by an express term.

Question 15

Licenses - Contractual - Transferability

In what circumstances can they be transferred?

Answer 15

(1) If a licence is intended to be purely personal then neither benefit nor burden can be transferred
(2) Clapham v Edwards [1938]: If the licence is not purely personal, the benefit can be transferred.

Question 16

Licenses - Contractual - Transferability - The Old Position

King v David Allen Billposting Ltd [1916]

Answer 16

• D had a licence from predecessors of K to put posters on walls of K’s premises. K let premises to a 3rd party who built a cinema on it. K + A agreed A would have right to hang posters on the side of a cinema being built but this not mentioned in the lease agreement w the 3rd party even though he’d been told of it
• HOL refused to recognise the burden of a contractual licence could be binding on successor-in-title of licensor even if successor aware of the licence when he acquired the prop.

Question 17

Licenses - Contractual - Transferability - The Old Position

Clore v Theatrical Properties Ltd [1936

Answer 17

illustrates the issues
- A co with exclusive licence to serve drinks in the theatre couldn’t enforce this licence against the new theatre owners for lack of a ‘contractual nexus between the parties

Question 18

Licenses - Contractual - Transferabillity - The License as Equity Position

Errington v Errington [1952] & National Provincial Bank v Ainsworth [1965]

Answer 18

set out the ‘L-as-E’ position
- Married couple living in house owned by H’s dad. When they married, he bought the house to give them a home + promised them if they stayed there + paid mortgage til end, he’d transfer it into their name.
- Mortgage not finished. Dad died. House left to widow. Son left. W stayed in house + continued to pay mortgage until widow sued for possession claiming her H’s contractual licence didn’t bind her (Clore)
- Held a contractual licence is binding on someone who acquires property through a will + the licence creates an equitable interest in the property that will be binding on all successors-in-title except for the bona fide purchaser for value without notice of the contractual licence. Faulty reasoning, so…
National Provincial Bank v Ainsworth [1965] Rejected this ‘deserted wife equity’ approach.

Question 19

Licenses - Contractual - Transferability - The Modern Position

Binions v Evans [1972]

Answer 19

• E’s husband worked as labourer + was entitled to live in a cottage on the estate w/o paying rates or rent
• H died in 1965 + E continued to live there. 1968: owners made agreement w her to let her occupy the property for rest of her life. 1970: Estate sold to B + B made fully aware and agreed to let her enjoy occup
• P got discount on price for this undertaking, but then in 1971: B tried to remove E from cottage.
• Held the agreement bw the parties was a contractual licence resulting in an equitable interest in E’s favour
• To protect this interest, held B was bound by a constructive trust in favour of E for her lifetime.

Question 20

Licenses - Contractual - Transferability - The Modern Position

Ashburn Anstalt v Arnold [1989]

Answer 20

• 1973: D sold its leasehold interest in a shop incl. a clause allowing the vendor (D) to stay in the property until the buyer required him to leave on provision of at least 4 months’ notice.
• P bought property subject to agreement w D but claimed not bound by contractual licence+tried to remove
• Held, obiter, contractual licences to occupy land don’t bind purchasers per se even w notice, but certain facts may give rise to constructive trust e.g. where court’s satisfied it’d be unconscionable + inequitable for the successor-in-title to be relived from obligations under the licence.
  No sign of Irish courts following Errington, more focus put on Estoppel in Ireland

Question 21

Licenses - Estoppel

Ramsden v Dyson [1886] set out the proprietary estoppel requirements:

Answer 21

(a) Representation: Landowner must’ve promised (represented) or encouraged an expectation that P is or will become entitled to an interest in the prop or must acquiesce in P’s mistaken belief of such
(b) Reliance: P must act in reliance on the rep or induced belief e.g. spend money on property
(c) Detriment: Landowner’s reneging must result in detriment to the 3rd party: Thus he is estopped.

Question 22

Licenses - Estoppel Bolstering

Smyth v Halpin [1997]

Answer 22

• P asked dad to give him a site he could build house on. Dad said unnecessary as he’d have the family home after his mum’s death + suggested P build an extension to it (assurance). P did (reliance + detriment)
• Dad left house to wife for life + rest to daughter, P sued for interest. Held P entitled to fee simple.

Question 23

Licenses - Estoppel Bolstering

Cullen v Cullen [1962]

Answer 23

• P told wife he’d transfer the property to her in return for promise not to have him sent to mental hospital
• On basis of this rep, W + son built mobile home on the land. Spent big money on plumbing + foundations
• P then wrote to them vis his solicitor asking them to leave. P sought injunction to stop them building.
• Held court couldn’t transfer a fee simple to P as he never believed he’d acquire it. However, he lived in the parents’ by means of a licence + equity restricted revocability of it on basis of the representations made
• So P estopped from asserting his title to the land where the mobile home was as he’d led son to believe he could put it there + reside in it for as long as he wished so he spent money + time he wouldn’t otherwise
• So Kenny J bolstered son’s licence by attaching an equity to it as a remedy (even suggested 12 yrs – AP!)
• De Londras: ridic as possession under licence isn’t adverse. Only adverse if P successfully revoked son’s licence + in that case P should’ve won.

Question 24

Licenses - Estoppel Bolstering

McMahon v Kerry County Council [1981

Answer 24

• P bought land to build school. Plan abandoned. Didn’t fence. Didn’t visit for 3 yrs. Then found D (knew P bought it) trying to build on it. P complained so stopped. 4 yrs later D built 2 houses. Yr later P discovered
• Held while the circs didn’t fall within Ramsden v Dyson the underlying principle of that case was to consider the conduct of both P and D and consider whether landowner acted in good conscience
• Held considering the circs (1) purpose P acquired the land not realisable so no intrinsic value to P now (2) D made mistake, etc. unjust to let P recover: court awarded the market value of site w/o house + damages.
• Held D could acquire title by adverse possession in 12 yrs. De Londras: should be confined to facts, no PE

Question 25

Licenses - Estoppel Bolstering

Re JR (A Ward of Court) [1993]

Answer 25

willing to presume detriment
- R lived w man for yrs. Told her it’d be her home for life. Left everything in will to her. Committee wanted to sell house. Held PE made: R acted to detriment relying on rep + entitled to life interest in house.

Question 26

Licenses - Estoppel Bolstering

Gillett v Holt [2001

Answer 26

Worked on farm for life, repeated promises he’d get it. Fell out. Nothing in will. Held PE

Question 27

Licenses - Estoppel Bolstering

Finnegan v Hand [2016]

Answer 27

• P worked on farm of deceased for 38yrs on modest pay. Said D made promises over yrs that led P to believe he’d get it. Court felt many of the promises indirect/oblique. Not named in will. Sued on PE basis
• Held due to the uncertainty of the alleged promises, difficulty in finding ingredients of PE (assurance,
• reliance, detriment) so used constructive trust to find in P’s favour instead

Question 28

Licenses - Estoppel Bolstering

Naylor v Maher [2018]

Answer 28

• CA held not necessary to choose bw the diff approaches as to how to satisfy the equity from a claim of PE
• P worked unpaid on deceased’s farm for many yrs. Promises made by deceased he’d get the farm.
• CA upheld finding P should get farm but not €150k that was under a 2nd later will (alternative bequest)

Question 29

Licenses - Estoppel Licenses as a Remedy

Pascoe v Turner [1979]

Answer 29

Appropriateness of the remedy is likely to depend on whether the court considers the inequity to result from the unsatisfied expectation of benefit or from the reliance of the actor.
Parties lived together in P’s house. P left to live w other woman, but assured D she can stay in it. D did repairs on it. P then sued for possession. Held D entitled to conveyance of the fee simple.

Question 30

Licenses - Transferability of Estoppel Licenses

Re Sharpe (A Bankrupt) [1980]

Answer 30

The benefit of an estoppel licence is not transferable. On other hand, the burden can be enforced against a successor-in-title of the licensor as equity binds the property through the licensor except for equity’s darling

• S lived w aunt in house attached to shop S bought. Aunt gave over ½ purchase price + money for furniture
• Aunt promised she could live there as long as she wanted + would be cared for by S and his wife
• Aunt gave him another large sum to save from bankruptcy + he gave her a promissory note.
• Held aunt had right to reside in house that could be enforced against the bankrupt’s successor-in-title as long as her debt went unpaid.

Question 31

Rights of Residence

What is a right of residence?

Answer 31

A right of residence is a right to reside in the property of another.
 Often incl a right of support or maintenance out of the profits of the land by provision of food, fuel, other
 Example: farmer gifts son his farm subject to his wife’s right of residence + maintenance for her life
 Their character depends on (a) whether it is a general right of residence (reside in the house) or exclusive (reside in a particular part of the property) + (b) whether it’s over registered or unregistered land.

Question 32

Rights of Residence - Exclusive Rights over Unregistered Land

How do these operate generally?

Answer 32

The holder has a life estate over the property. S.11(2)(c)(iii) LCLRA 2009 states the fee simple is the only freehold estate that may be created or transferred in law so the life estate can only exist in equity now.

Question 33

Rights of Residence - Exclusive Rights over Unregistered Land

National Bank v Keegan [1931]

Answer 33

• Landowner granted aunt exclusive use of bedroom + drawing room in her lifetime. 10 years later, P tried to enforce an equitable mortgage the nephew had taken out in the meantime by depositing the title deeds.
• SC held as such a deposition would’ve resulted in a life estate if made in a deed or will, this agreement should have the same effect in equity: aunt entitled to equitable life interest in the two rooms and this took priority over the bank’s mortgage  where there are two equitable interests, the first in time prevails.

Question 34

Rights of Residence - Exclusive Rights over Unregistered Land

Atkins v Atkins [1976]

Answer 34

confirmed Keegan
- T left leasehold prop to use of wife as long as she a widow + wanted to live there. After, nephew to take life estate w fee tail remainder to son. Codicil in will gave nephew right of res who moved in after W left
- Held W’s right of residence equated to a life estate + thus she’d the right + powers of a tenant for life under the Settled Land Acts. Her decision to leave couldn’t cost her her rights as that’d breach this Act
- While this relates to a general right of residence, subsequent law means this rule only applies to excl ones
Issues in Keegan: holder of right of residence was defined as a tenant for life within the Settled Land Acts 1882
-1890 meaning giving them powers to sell, etc. Keegan still good law but Settled Land Acts no longer apply…

Question 35

Rights of Residence - Exclusive Rights over Unregistered Land

How does Part 4 of LCLRA 2009 apply?

Answer 35

Part 4 LCLRA 2009: Where a person holds a right of residence over a part of unregistered land, they hold it on constructive trust for the freehold owner. Any other right of residence, freehold owner can deal w it freely.

Question 36

Rights of Residence - General Rights of Residence over Unregistered Land

Ryan v Ryan [1848]

Answer 36

These give rise to a charge that can be satisfied in monetary terms.

• T left wife in house ‘as long as the lease lasts, provided she wants to stay in it with my nephew’. She stayed until nephew married, then left for a period. On return, nephew refused to let her stay as per will.
• Held as she hadn’t done anything to suggest she didn’t want to stay, entitled to the right of residence
• Held a general right of res was a licence the licensor could revoke provided he gave approp compensation

Question 37

Rights of Residence - General Rights of Residence over Unregistered Land

Keleghan v Daly [1913]:

Answer 37

Farm left to son w covenant to maintain mum + sister during their lives + let them
occupy the house on the farm. Right of res was classified as a mere lien. Approach seems to be upheld now…

Question 38

Rights of Residence - General Rights of Residence over Unregistered Land

How did the law change? what provision applies?

Answer 38

: A general right of residence is now considered a charge over property:
S.40 Statute of Limitations limits actions to enforce liens to within 12 years from the date the right of action accrued. Includes ‘right of residence’ as lien example

Question 39

Rights of Residence - General and Exclusive Rights of Residence over Registered Land

What provisions of what act apply and what do they provide?

Answer 39

S.81 Registration of Title Act 1964: A general or exclusive right of residence on registered land shall be deemed to be personal to the personal beneficially entitled to it and shall be a right in the nature of a lien for money’s worth over the land, but shall not operate to create any equitable estate.
S.69(1)(q): Such a right is now registrable as a burden over the land now under s.69.
 This rules out for registered land the possibility of a holder of a right of res exercising the statutory powers of a tenant for life + defeating the grantor’s intention except where the right is excl right over whole land.

Question 40

Rights of Residence - Enforcement

How are they enforced?

Answer 40

General rights of res over unregistered land + both rights of res over registered land can be satisfied in financially.

Question 41

Rights of Residence - Enforcement

Johnston v Horace [1993]

Answer 41

• P registered her right of res over a prop under s.69 RTA. Nephew inherited, fell out, she left. Said bullied
• Held abandonment is a voluntary act. This wasn’t voluntary so she remained entitled to the right.
• Held a right of res is an ongoing right that’s intended to cater for a fundamental human need (roof over head) and the method for valuing it ought to reflect the intention behind the right.
• Held financial satisfaction should be continued on a continuous basis rather than a once-off calculation.
• This is significant given the fluctuating value of rental properties.

Question 42

Rights of Residence - Enforcement

Bracken v Byrne [2005]

Answer 42

• P + D1 sisters. Dad transferred certain properties to D1 + fiancé by deed subject to certain rights in favour of P including a right of residence. Fell out, P sought payment of a sum to represent her right of residence.
• Held Johnston doesn’t mean a right of res can never be satisfied in monetary terms, rather that the right-holder is not entitled to financial satisfaction of the right.
• The primary entitlement is to have the right enforced, and if that fails, injunctive relief against the breach.
• In absence of agreement bw the parties to extinguish the right, the court’s empowered to satisfy the right in consideration of the means of the land owner and the culpability of the respective partied for the fall out the point that they can’t be reasonably expected to cohabit. Test to apply before exercising jurisdiction:
  (1) It’s become unreasonable to require the beneficiary be content with the exercise of the right of res and
  (2) The balance of responsibility for the situation rests with the landowner.

Question 43

Rights of Residence - Enforcement

Bank of Ireland v O’Donnell [2016]

Answer 43

• CA held a right of res isn’t ‘property’ vesting on bankruptcy of the holder in the Official Assignee. Such a right isn’t assignable to any 3rd party + the Official Assignee couldn’t assert any economic value for it.
• He couldn’t assert/enforce the right for his own benefit or convert it into money to be paid to creditors so in that sense, it was a personal right not vesting in him.