LICENSES
1. INTRODUCTION

A license is merely permission to be on the land (implicitly suggesting the owner has consented) with
no attendant proprietary interest.
o “[A] license [which]properly passeth no interest, nor alters nor transfers property in anything,
but only makes an action lawful which, without it, had been unlawful.” – Thomas v. Sorrell
(1673)

Put simply, the conventional attitude was that a licensee simply was not a trespasser, but he hardly
has anything more than that status.

That permission to be on the land may well turn into a right if A and B had a contract.
The importance of exclusive possession

In the topic of LEASES, it was established that the HL in Street v. Mountford (1985) had re-asserted tt
exclusive possession was the litmus test tt differentiated leases from licenses. However, a number of
subsequent decisions (Colchester BC v. Smith [1991, first instance decision]) relied on the dictum of
Lord Templeman in Street as laying down certain exceptional circumstances where exclusive
possession did not necessarily mean a tenancy.

This position has been accepted by our SGCA in Goh Gin Chye v. Peck Teck Kian Realty Pte Ltd [1987]:
o “The intention of the parties is an important consideration in determining the relationship of
landlord and tenant…the intention must be sought…from its substance and from the conduct
of the parties...[E]xclusive possession is also not the sole and only criterion, there may be
circumstances negativing an intention to create a tenancy”.

There are 4 categories of licenses: (1) bare or gratuitous license; (2) license coupled with a grant; (3)
contractual license; and (4) license coupled with an equity.
2. BARE LICENSE

A bare license is the classic form of a license – it is a mere privilege to be on the land of the licensor.
o It is purely gratuitous – ie. no contract
o It is personal – ie. cannot be assigned and will not bind assignees of the licensor.
o The effect is merely that the licensee cannot be deemed a trespasser.
Halliday v Nevill (1984, HCA)
Facts
 A had been drinking and was going to go out. As he drove out of driveway, he
saw patrol car and reversed back in.
 However, patrol car had seen him doing so and they stopped their car, alighted
and entered the premises by walking down the open driveway.
 They engaged A in conversation and determined tt he had been drinking, hence
they arrested him there on his driveway.
 A tried to escape – officers wrestled with him – A told the officers to “F*** Off”
but officers still wrestled him to the ground.
Issue
Whether officers had license to be on A’s driveway and whether that license had
been revoked by A’s use of expletives.
Decision
HCA held tt officers had license to be on the driveway and that license had not been
and
revoked.
Reasoning
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A licence will, as a matter of law, be implied unless there is something
additional in the objective facts which is capable of founding a conclusion
that any such implied or tacit licence was negated or was revoked.
In a residential setting, an unobstructed driveway is held out by the
occupier as the bridge between the public thoroughfare and his or her
private dwelling upon which a passer-by may go for a legitimate purpose.
In the present case, that license to the officers was not revoked by way of
the use of expletives bec. it was used more to vent anger than anything
else.
Note that the termination of a bare license at common law is “at will” - Tan Hin Leong v Lee Teck Im
[2000], per G P Selvam J:
o ‘The concept of licence stemmed from the feudal politico-economic system of land-holding ...
Under it the peasant and pedestrian could step on the land with the permission and
sufferance of the squire who owned it but must step out when the licence was revoked.’
o But licensor must give licensee a reasonable time to pack up his/ her belongings.
3. LICENSE COUPLED WITH A GRANT

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This arises when A grants to B a profit (this is not the profit understood in the layman term, but rather
the short-form of the French phrase profit-à-prendre – which is a right to take natural resources out
of A’s land). A license (or easement) must necessarily attach to that grant of profit.
o And that license will last for as long as the profit is granted for (James Jones & Sons Ltd v. Earl
of Tankerville [1909])
But of course, that interest coupled with the grant must be an interest in land that is for the purpose
of fulfilling the purpose of the profit.
4. CONTRACTUAL LICENSE


A and B have a contractual agreement whereby A grants B a license to be on A’s land in return for
some consideration.
o Essentially a contract; however, for long-term contractual licenses, they begin to look
curiously like leases.
o Also, the judicial stance has shifted from that of strictly denying proprietary interests to that
of conferring rights that may seem like proprietary rights.
A contractual license seems to differ from others in two critical areas – Revocability and Effect on 3rd
Ps.
4.1 Revocability
o
Traditional view was very strict – even in a contractual license, the licensor can revoke it at any
time.
Locus classicus: Wood v. Leadbitter [1845]
W paid ticket for watching horse races – unceremoniously thrown out for no reason – W sued for
assault.
Ct HELD tt W merely had a license that could be revoked at any time; hence, raceowner’s act of
forcibly throwing him out was not wrong
Note tt in this case, breach of contract was not pleaded, otherwise W would likely have succeeded
for breach.
o
o
However, the judicial attitude to Wood was not positive and many decisions fought to distinguish
it. In Hurst v Pictures Theatres Ltd [1915] – similar to Wood but involved ticket to watch a movie –
Ct held tt this should be treated as a situation of a license coupled with a grant and so the license
is irrevocable for the intended period of the grant – Hence, HELD tt assault was unlawful.
o Of course, this was a wrong view of licenses coupled with a grant bec. watching a show
is not one that has any connection with land (unlike the granting of a profit).
Real change in judicial attitude only came in Winter Garden which while recognizing that a
contractual license cannot be terminated at will, it is still purely contractual in nature.
*Winter Gardens Theatre (London) Ltd v Millenium Productions Ltd [1946, HL]
Facts
 The WGT granted M a licence to use their theatre, for producing stage plays,
concerts or ballets, for six months from July 6, 1942, with an option to continue
for a further six months at an increased rent.
 At the expiration of the two six-month periods, there was option to continue
usage through payment of weekly rentals.
 M did not have exclusive possession bec. WGT still retained management of bars
and cloakrooms.
 WGT then sought to end the lease without specifying breach of any of the terms
of the license. Problem was that there was no express provision that said how
the lease was to be determined.
Issue
Whether WGT can determine the lease without alleging breach and whether a
reasonable period of notice had been given.
Decision
HL entered judgement for WGT – license was not perpetual and it had been properly
determined with reasonable notice.
Reasoning
On a Licensor’s right to revoke license
A contractual license is simply a license and hence the right to revoke depends
upon a true construction of the terms of the contract.
Hence it is necessary to imply a negative contractual term restraining
revocation until the termination of the purpose for which the contract was
made.
Where the contract does not provide express terms of termination, courts have
to imply appropriate terms as to the reasonable period of notice according to the
circumstances of the case.
On granting Injunctions for wrongful revocation
 The general rule is before equity will grant an injunction, there must be, on the
construction of the agreement, a negative clause, express or implied. (hence the
need to imply the negative contractual term above).
 “The settled practice of the courts of equity is to do what they can by an
injunction to preserve the sanctity of a bargain… [A] licensee who has refused to
accept the wrongful repudiation of the bargain …is as much entitled to the
protection of an injunction as a licensee who has not received any notice of
revocation; and, if the remedy of injunction is properly available in the latter case
against unauthorized interference by the licensor, it is also available in the former
case. In a court of equity, wrongful acts are no passport to favour.” – at 202
Significance
of decision
In the present case
 Ct held tt parties did not intend a perpetual license (though it’s theoretically
possible), hence it must be capable of being determined. Court implied that the
reasonable period of notice was met and license was determined.
 Turn away from the fiction that a case of contractual license is analogous to a
license coupled with a grant. Hence, restrain on a licensor’s right to revoke
license is due to contract and not land law.
 Entitled a licensee to sue for injunction restraining a licensor from determining
the license – significant bec. even though a licensee may sue in breach, he can do
nothing to stop a licensor from actually removing him. The opening of the door
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of injunctions provided a real remedy in such predicaments.
But note tt a licensee’s right against being thrown out is not proprietary but
contractual in nature  it takes ref. from basic contractual principles tt a
innocent party of a repudiatory breach has an unfettered right to elect whether
to terminate the contract.
Winter Gardens had opened the door of injunctive relief for a contractual licensee but the conditions
for that relief was still unclear. But in Hounslow LBC v. Twickenham Garden Developments [1971,
Chancery Div], Megarry J summarised the conditions as such:
1) A contractual licence confers licence to enter the land – it is immaterial whether the right to
enter is the primary or secondary purpose of the contract.
2) A contractual licence is not an entity distinct from but rather merely one of the provisions of
the contract.
3) The willingness of a court to grant equitable remedies depend on whether the licence is
specifically enforceable
4) But where licence is not specifically enforceable, a court will also not grant equitable
remedies that aid the breach of the licence.
The scope of remedies available to a court may be very wide. The ECA went as far as to extend
specific performance:
*Verrall v Great Yarmouth BC [1981, ECA]
Facts
 Licensee, National Front (a fascist political party) hired a conference hall for two
days to run a fascist conference.
 Licensor local council discovered it and sought to revoke the licence.
Decision
ECA held in favour of licensee and granted it specific performance.
Reasoning
 The duration of the licence, no matter how short, is no bar to equitable relief.
 There is no difference between (i) when the licence is revoked prior to
possession; and (ii) when the licence is revoked after part performance, i.e. after
licensee has occupied premises. Where there is wrongful revocation, the court
will grant equitable relief.
 In considering the granting of equitable relief, considerations like the principle of
free speech may be factored in (even though the cause was very unpleasant).
 The scope of equitable relief is not limited to injunctions to uphold negative
covenants but can include granting specific performance.
Significance  This is a case where purported revocation was prior to occupation.
of decision  If Licensor really wanted to prevent the conference from happening and it was
merely under an injunction not to revoke the license, it could not revoke but go
engage some other party to use the premises during the said period.
o As per contract law, Licensor is not saying tt contract is at an end,
but just makes himself unavailable for performance.
 The effect of specific performance is that it forces the Licensor to be available for
performance.
The SINGAPORE POSITION:
* Tan Hin Leong v Lee Teck Im [2001, SGHC and affirmed by SGCA]
Facts
 Father owned property in Sgp and transferred prop to Son by way of gift by
deed. S covenanted to allow F’s wife to remain in the premises for the rest of her
life (this covenant being in a deed as well).
 The W had to keep the premises in proper repair and had to pay $12 per annum
as rent and she was obliged to pay the tele and utilities bills.
 But as soon as F dies, the S tries to revoke the agreement and take over the
premises.
Decision
HELD tt M had a contractual and not a bare license and accordingly it could not be
terminated except according to the conditions of the contract; Affirmed HC decision
Reasoning
Significance
of decision
and entered judgement for licensee mother.
It was not a bare license, but an enforceable contractual license to last the lifetime of
the mother:
 M had a contractual, not bare licence  S’s promise was made in a deed, which
evinced serious intention. Further, M provided consideration – rent; keeping
premises in repair and foregoing any right to claim against the S’s title.
 Contractual licence cannot be revoked at will 
 “The contractual licence is not revocable at will because there is an implied
irrevocability at will. The implication arises from the fact that the deed defines
the circumstances giving the right to end the right of occupation. If those
circumstances cannot be established it is to last for the lifetime of the
defendant.”
 This was an enforceable licence for M’s lifetime  In land law, a licence for
indefinite period will be terminable at will.
 However, “this is not the case of a licence for an indefinite and indeterminate
period. It would have been so had the plaintiff not executed the deed and let the
defendant occupy the property without any specific arrangement.” (HC decision
at [34].
 Rather, “the express words of the deed were that the licence was to "lapse upon
her death". These words determined the duration of the licence and since the
parties to the contract clearly expressed their intentions in the deed, the court
would give effect to such intention.” (CA decision at [27])
 Upheld the more modern view that a contractual license is not terminable at wil.
4.2 Effect on Third Parties
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A contractual licence is like any contract and has to obey Privity of Contract and hence is only
binding btw the licensor and licensee and not on 3 rd Ps (well established by HL in King v David
Allen & Sons, Billposting, Ltd [1916]).
However in a period of judicial vigilantism, Lord Denning departed from this orthodox view by
deeming that a 3rd P purchaser took from a licensor with notice of the existing license, was bound.
Binions v. Evans [1972, ECA]
Servant and Wife served for many years – Husband died and widow was left – Owners of
estate granted her a written licence allowing her to stay rent-free in a cottage on the
grounds provided she kept it clean.
Subsequently, the estate was sold to Mr B and his wife. B had actual notice of the
licensee and agreed to honour the promise to the sellers tt they would not evict the
widow.
HELD tt a constructive trust was implied to protect the widow.
Majority held that widow was a tenant for life under the UK Settled Land Act.
(Only Lord Denning held on this) That there was a contractual licence and since the
plaintiffs paid a reduced price in view of the agreement, a constructive trust was
imposed for the defendant’s benefit since “it would be utterly inequitable for the
purchaser to turn the widow out contrary to the stipulation subject to which he took the
premises”.
However judicial stance reverted back to orthodox view with ECA decision in Ashburn Anstalt v
Arnold [1988].
o AFFIRMED tt the general rule is contractual licences are not binding on 3rd P purchasers.
o However, the exception is where circumstances necessitate a constructive trust to be
implied.
 For that to happen, simply having notice is insufficient.
 Also, the mere fact that land was conveyed “subject to” a contractual licence
existing is insufficient to impose an obligation upon a 3rd P.
o
o
The conscience of the 3rd P purchaser must be affected:
 This could be where the 3rd P has taken property at a reduced price; OR
 The 3rd party expressly undertook to honour the contract or give assurance to
this effect (where the obligation of conscience has been acknowledged i.e. in
writing, in respect of the relevant contractual entitlement) OR
 The contractual licence is not enforceable against the original licensor – which
would suggest that the 3rd P had actually granted a new licence to the existing
licensee.
(This suggests tt the decision in Binions might have been good afterall; but Denning’s
principle was too wide)
PROPRIETARY ESTOPPEL
1. INTRODUCTION


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A proprietary estoppels arises where the owner of land permits the claimant to believe that
he has some right in the land – the claimant relies on that belief to his detriment – then the
owner cannot insist on his strict legal rights.
The principle behind this doctrine is that of UNCONSCIONABILITY:
o Crabb v. Arun DC [1976]: “The basis of this proprietary estoppels…is the interposition
of equity. Equity comes in…to mitigate the rigours of strict law it will prevent a
person from insisting on his strict legal rights…when it would be inequitable for him
to do…”
But what exactly would suffice as unconscionable behaviour? – classic tension btw Flexibility
and Certainty:
o Taylor Fashions Ltd v. Victoria Trustees Co Ltd [1982, Chancery Div] – “I am not at all
convinced that it is desirable or possible to lay down hard and fast rules which seek
to dictate…the considerations which will persuade the court [that a party’s action] is
so unconscionable that a court of equity will interfere.”
o Cobbe v Yeoman’s Row Management Ltd [2008, HL] – “Equitable estoppel is a
flexible doctrine which the court can use, in appropriate circumstances, to prevent
injustice … But it is not a sort of joker or wild card to be used whenever the court
disapproves of the conduct of a litigant who seems to have the law on his side.
Flexible though it is, [it must be] applied in a disciplined and principled way.
Certainty is important in property transactions.” – [46], per Lord Walker.
Distinguishing Constructive Trusts from Proprietary Estoppel
 As deal with unconscionable behaviour, the requirements are unsurprisingly similar.
However there is a big difference as to the remedy of the claimant:
o Where a Constructive Trust is created, the claimant obtains an equitable
interest in property;
o Whereas in Proprietary Estoppel the claimant only obtains such relief as the
court may direct in its discretion.
2. ESSENTIAL ELEMENTS OF PROPRIETARY ESTOPPEL

3 identifiable elements of proprietary estoppels:
o Representation
o Reliance
o Unconscionable disadvantage