LICENCES AND PROPRIETARY ESTOPPEL
Licences- licensee is granted permission to access or occupy a piece of the licensor’s land that he would
not otherwise have the right to
More limited than leases as grant no ownership rights or exclusive possession for a certain term
(key distinctions from a practical and financial standpoint)
Licences can also look similar to easements
Types of licences
Bare licence
Licence coupled with an interest
Contractual licence
Bare licence
A gratuitous permission (without consideration) granted by a licensor to a licensee to allow them to
enter and/or use their land (sets limited conditions)
‘When you invite a person into your house to use the staircase, you do not invite him to slide
down the bannisters’ (Scrutton LJ in The Carlgarth [1927])
Such licences are easily created (either expressly or impliedly) and are extremely common in
practice
Limited right and not a contractual licence designed merely to save the licensee from liability for
trespass against the licensor
Permission granted can be revoked, provided the licensor gives reasonable time to leave
(fact-dependent)
Re Hampstead Garden Suburb Institute [1982]- sought to withdraw the licence from a school
(granted 9 months but extended to 27 months by the court)
Parker v Parker [2003]
Personal right which cannot bind successors
Licence coupled with an interest
If a person has a proprietary right over another’s land, he will often require access to the land to
use his right in practice which is usually implied if not expressly given (eg. crossing another’s land
in order to fish in lake)
The licence will last as long as the underlying interest and only for that specific purpose
Unclear whether these licences can be coupled with to a non-proprietary right
Hurst v Picture Theatres [1915]- if you buy a ticket from a booth to watch a film, the court
ruled that this includes a licence to go into the cinema attached to it
Hounslow London Borough Council v Twickenham Garden Developments [1971]- overruled
Hurst to be only a contractual right to watch the film (key difference as regards remedies)
Contractual licence
, A licence that arises via a contract between a licensor and licensee (with consideration) and so
combines elements of contract and land law
These are highly versatile and occur frequently in real life (eg. cinema ticket as clarified in
Hounslow)
May be created either expressly or impliedly, but there must be a valid contract
Relies on questions of fact, although the courts have been readily prepared to read into
intent to create legal relations
Tanner v Tanner [1975]- D had recently given birth to twins and gave up her flat to move
into accommodation provided by C (the father)
Ruled a contractual licence implied to provide D and children with accommodation until the
children left school (although some lack of clarity on this ruling as the intention to create
legal relations was not present in the case)
Chandler v Kerley [1978]
However, following the creation of the proprietary estoppel principle, the courts have been
less willing to read into the intent to create legal relations (eg. Southwell v Blackburn
[2014])
A party can breach a contractual licence at common law, although they may be sued for breach of
contract (Wood v Leadbitter [1845])
Remedies limited to damages (cannot seek specific performance)
However, in equity, the law will frequently intervene to prevent contractual revocation, often in
favour of the remedy of specific performance (difficult to break contractual terms)
Hurst v Picture Theatres Ltd [1915]
Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971]- refused
an order for possession
Verrall v Great Yarmouth Borough Council [1980]- effectively ruled that damages would not
be an effective remedy as it was on too late notice to allow the licensees to move property
However, equity did not intervene in Winter Garden Theatre (London) Ltd v Millenium
Productions Ltd [1948] seemingly on the basis that it would create a perpetual licence which
was not intended by the parties (limited to a claim of damages)
Subject to equitable maxims
Similarly, even if the licence can be revoked, reasonable time must be given to the licensee to
leave
Chandler v Kerley [1978]
While licences are purely personal interests and cannot bind successors in title, contractual licences have
proven to be more complex and three distinct stages of jurisprudence can be identified in the area
Traditional approach- a contractual licence is a contract and it only binds its contracting parties
(personal right)
King v David Allen [1916]- could not bind third parties
Clore v Theatrical Properties [1936]
Licences- licensee is granted permission to access or occupy a piece of the licensor’s land that he would
not otherwise have the right to
More limited than leases as grant no ownership rights or exclusive possession for a certain term
(key distinctions from a practical and financial standpoint)
Licences can also look similar to easements
Types of licences
Bare licence
Licence coupled with an interest
Contractual licence
Bare licence
A gratuitous permission (without consideration) granted by a licensor to a licensee to allow them to
enter and/or use their land (sets limited conditions)
‘When you invite a person into your house to use the staircase, you do not invite him to slide
down the bannisters’ (Scrutton LJ in The Carlgarth [1927])
Such licences are easily created (either expressly or impliedly) and are extremely common in
practice
Limited right and not a contractual licence designed merely to save the licensee from liability for
trespass against the licensor
Permission granted can be revoked, provided the licensor gives reasonable time to leave
(fact-dependent)
Re Hampstead Garden Suburb Institute [1982]- sought to withdraw the licence from a school
(granted 9 months but extended to 27 months by the court)
Parker v Parker [2003]
Personal right which cannot bind successors
Licence coupled with an interest
If a person has a proprietary right over another’s land, he will often require access to the land to
use his right in practice which is usually implied if not expressly given (eg. crossing another’s land
in order to fish in lake)
The licence will last as long as the underlying interest and only for that specific purpose
Unclear whether these licences can be coupled with to a non-proprietary right
Hurst v Picture Theatres [1915]- if you buy a ticket from a booth to watch a film, the court
ruled that this includes a licence to go into the cinema attached to it
Hounslow London Borough Council v Twickenham Garden Developments [1971]- overruled
Hurst to be only a contractual right to watch the film (key difference as regards remedies)
Contractual licence
, A licence that arises via a contract between a licensor and licensee (with consideration) and so
combines elements of contract and land law
These are highly versatile and occur frequently in real life (eg. cinema ticket as clarified in
Hounslow)
May be created either expressly or impliedly, but there must be a valid contract
Relies on questions of fact, although the courts have been readily prepared to read into
intent to create legal relations
Tanner v Tanner [1975]- D had recently given birth to twins and gave up her flat to move
into accommodation provided by C (the father)
Ruled a contractual licence implied to provide D and children with accommodation until the
children left school (although some lack of clarity on this ruling as the intention to create
legal relations was not present in the case)
Chandler v Kerley [1978]
However, following the creation of the proprietary estoppel principle, the courts have been
less willing to read into the intent to create legal relations (eg. Southwell v Blackburn
[2014])
A party can breach a contractual licence at common law, although they may be sued for breach of
contract (Wood v Leadbitter [1845])
Remedies limited to damages (cannot seek specific performance)
However, in equity, the law will frequently intervene to prevent contractual revocation, often in
favour of the remedy of specific performance (difficult to break contractual terms)
Hurst v Picture Theatres Ltd [1915]
Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971]- refused
an order for possession
Verrall v Great Yarmouth Borough Council [1980]- effectively ruled that damages would not
be an effective remedy as it was on too late notice to allow the licensees to move property
However, equity did not intervene in Winter Garden Theatre (London) Ltd v Millenium
Productions Ltd [1948] seemingly on the basis that it would create a perpetual licence which
was not intended by the parties (limited to a claim of damages)
Subject to equitable maxims
Similarly, even if the licence can be revoked, reasonable time must be given to the licensee to
leave
Chandler v Kerley [1978]
While licences are purely personal interests and cannot bind successors in title, contractual licences have
proven to be more complex and three distinct stages of jurisprudence can be identified in the area
Traditional approach- a contractual licence is a contract and it only binds its contracting parties
(personal right)
King v David Allen [1916]- could not bind third parties
Clore v Theatrical Properties [1936]
