Licenses and Rights of Residence Flashcards
Licenses
What does a license allow?
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])
Licenses - Bare Licenses
What is a bare license?
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
Licenses - Bare Licenses
Winter Garden Theatre v Millennium Productions [1948]
- 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.
Licenses - Bare Licenses
Pascoe v Turner [1979]
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.
Licenses - Bare Licenses
Liggins v Inge [1831]
- 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
Licenses - Bare Licenses
Davis v Lisle [1936]:
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.
Licenses - With an Interest
When does it arise?
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.
Licenses - With an Interest
Muskett v Hill [1839]
- 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.
Licenses - With an Interest
Woods v Donnelly [1982]
- 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
Licenses - Contractual
What is it? also Tanner v Tanner [1975]
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.
Licenses - Contractual - Revocation
What is the position at common law?
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
Licenses - Contractual - Revocation
Whipp v Mackey [1927]
- 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.
Licenses - Contractual - Revocation
Winter Garden Theatre v Millennium Productions [1948]
- 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
Licenses - Contractual - Revocation
Hurst v Picture Theatres [1915]
- 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.
Licenses - Contractual - Transferability
In what circumstances can they be transferred?
(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.
Licenses - Contractual - Transferability - The Old Position
King v David Allen Billposting Ltd [1916]
- 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.
Licenses - Contractual - Transferability - The Old Position
Clore v Theatrical Properties Ltd [1936
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
Licenses - Contractual - Transferabillity - The License as Equity Position
Errington v Errington [1952] & National Provincial Bank v Ainsworth [1965]
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.
Licenses - Contractual - Transferability - The Modern Position
Binions v Evans [1972]
- 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.
Licenses - Contractual - Transferability - The Modern Position
Ashburn Anstalt v Arnold [1989]
- 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
Licenses - Estoppel
Ramsden v Dyson [1886] set out the proprietary estoppel requirements:
(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.
Licenses - Estoppel Bolstering
Smyth v Halpin [1997]
- 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.
Licenses - Estoppel Bolstering
Cullen v Cullen [1962]
- 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.
Licenses - Estoppel Bolstering
McMahon v Kerry County Council [1981
- 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
