Land Law and Licences
Land Law Cases referred to in this section:
- AG Securities v Vaughan (1988) 3 WLR 1205
- Antoniades v Villiers (1988) 3 WLR 1205
- Goldsack v Shore (1950) 1 KB 708
- Hillen and Pettigrew v ICI (Alkali) Ltd (1936) AC 65
- Muskett v Hill (1839) 5 Bing (NC) 694
- National Provincial Bank Ltd v Hastings Car Mart Ltd (1964) Ch 665
- R (Beresford) v Sunderland CC (2004) 1 AC 889
- R v London CC, ex p Corrie (1918) 1 KB 68
- R v Pratt (1855) 4 E & B 860, 119 ER 319
- Street v Mountford (1985) Ac 809
- The Carlgarth (1927) P 93
- Thomas v Sorrell (1673) Vaugh 330
A licence may loosely be defined as the permission of the land owner enter on to a piece of land for a given purpose.
A bare licence is a personal permission or consent, granted without consideration, to enter, traverse over or be present upon the land of another. A bare licence covers a huge number of every day situations where a person may enter on to another person's property - for example, a friend inviting another person over for a drink. A bare licence is a defence to what would otherwise amount to the tort of trespass (Goldsack v Shore (1950) 1 KB 708 at 714 per Evershed MR). Where the licencee oversteps the ambit of the licence, his status will therefore be that of trespasser (Hillen and Pettigrew v ICI (Alkali) Ltd (1936) AC 65 at 69 per Lord Atkin). The famous quote of Scrutton LJ sums this up: "When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters" (The Carlgarth (1927) P 93 at 110). Similarly, if the person is permitted to enter the land for one purpose but enters for another purpose (R v Pratt (1855) 4 E & B 860 at 865, 119 ER 319 at 321), or whilst on the land begins to pursue a different purpose to that which he is authorised (Hillen and Pettigrew, supra), again he becomes a trespasser, where it is known or understood that the occupier would not have given consent (R v London CC, ex p Corrie (1918) 1 KB 68 at 73 per Darling J).
Bare licences may be created expressly or impliedly and no formalities are required - a bare licence may arise by implication from circumstances or conduct (R (Beresford) v Sunderland CC (2004) 1 AC 889).
Contractual licences arise from permission to use or occupy land, derived from an express or implied contract. It is not a gratiutous licence but is founded on valuable consideration moving from the licencee.
Licences coupled with an equity
These arise where the owner of the land grants a licence to another to go upon the land and occupy it for a specific period or a perscribed purpose, and on the faith of that authority the licensee enters into occupation and does work, or in some other way alters his position to his detriment . In these circumstances, the owner of the land cannot revoke the licence so as to defeat the period or purpose for which it was granted (National Provincial Bank Ltd v Hastings Car Mart Ltd (1964) Ch 665 at 686).
Licences couple with the grant of an interest
This arises where there is a permission to enter onto another's land for the purpose of removing something from that land (such as timber) (Muskett v Hill (1839) 5 Bing (NC) 694 at 707-708). This licence combines the grant of an interest (such as a profit a prendre) with an ancillary permission to enter the land to realise or exploit that interest (see for example Thomas v Sorrell (1673) Vaugh 330 at 351).
Lease v Licence
It is often important to establish whether a lease or a licence is held, because the holder of a lease will have considerably more rights than the holder of a licence. In Street v Mountford (1985) Ac 809, Lord Templeman said that where exclusive possession is granted of premises for a term at a rent, then prima facie, a lease is granted. He warned against 'sham' agreements in which leases are disguised as something else - usually licences. In Street v Mountford, although a 'licence' was granted and the landlord reserved the right to enter the room to inspect it, maintain it and read meters, it was held that in reality the agreement was a lease because the tenant had exclusive possession. Exclusive possession means that the tenant may exclude everyone else, including the landlord, from the premises - howeverm many leases, particularly those of flats where there is a management company, will reserve the right for the 'landlord and his agent' to inspect the property for maintainance and repair, usually giving at least 48 hours written notice, but this does not mean that exclusive possession has not been granted.
Where a property is shared, it is necessary to consider whether all the occupiers have equal rights and interests in the property as a whole, in which case they would be joint tenants. In Antoniades v Villiers (1988) 3 WLR 1205, two occupiers of a small one bedroom flat paid equal amounts of rent. The landlord's 'right to occupy' which he attempted to reserve was held to be a sham - they had exclusive possession and were joint tenants. In AG Securities v Vaughan (1988) 3 WLR 1205, four occupiers signed different licence agreements on different dates, for different terms and payments. The four unities were not present to make them joint tenants and although they had each an exclusive right to occupy the flat with the other three, they did not have collective total exclusive possession - consequently they were held to be licencees.