REVISION NOTES W301 LAW: OWNERSHIP & TRUSTEESHIP – RIGHTS &
RESPONSIBILITIES
OBJECTIVES NOTES: UNIT 18 - LICENCES
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What a licence is
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Licences permit licensees to do something which otherwise would not be allowed,
embracing (i) permissions by law & (ii) permissions by licensors to be on their land
where permanent right is not intended & which range from permitting right of access
to right of temporary occupation where length varies so = device permitting many
short to long term functions where actions otherwise unlawful made lawful without
passing interest or altering property in thing/ estate (Thomas v Sorrell (1673) so, in
simplistic terms, describable as mere permission preventing actions which otherwise
would be trespass & which are personal between licensor & licensee.
Express & implied licences
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Express permission evidenced from words but need not be in writing, so formality
isn’t required but where long term access/ use envisaged, written agreements
sensible, albeit not mandatory unless land interest is being created but in certain
situations permission is implied so where householder not lock gate, implied licence
for anyone, who has lawful purpose, to go from gate to door to speak to householder,
albeit implied licence rebuttable by express notice on gate (Robson v Hallett [1967].
Differences between licences/ easements & licences/ leases
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With easements right has to benefit grantee’s land &, since = interest in land, must be
expressly created in writing (s.53(1) LPA 25) or, to be legal interest, must be in deed
(s.52(1)), albeit may also be equitable but licences = personal permissions which not
need benefit land, can be created without formality & not give licensee legal or
equitable land interest so right to occupy rooms where granted exclusive possession
for term at rent was hallmark of lease, howsoever agreement was described but where
others – including owner - could not be excluded, not exclusive possession so is
licence (Street v Mountford [1985]) but where no rent charged this = strong indication
of licence, albeit rent not essential to constitute tenancy (Ashburn Anstalt v Arnold
[1989]);
Where landlords attempt to avoid exclusivity of possession by artificial means, courts
likely to treat as leases (Antoniades v Villiers [1990]) but where arrangements made at
different times & on different terms, neither joint tenancy nor overall or individual
exclusive possession so was licence (AG Securities v Vaughn [1990]) & where keys
held by owner, determinative by why has key so where for dealing with emergencies,
would not indicate licence but if genuinely for services which can only be provided by
unrestricted access, licence more likely (Aslan v Murphy [1990]), although provision
of services not sufficient to constitute licence and where neither required unrestricted
access or not performed although contractually due (Markou v Da Silvaesa [1986])
likely to be tenancy, whilst services initially provided but then ‘drop off’ indicates
licence (Huwyler v Ruddy [1995]);
Arrangements indicating no right of occupation during certain limited hours,
unrealistic & likely to be seen as a pretence (Aslan) but where exclusive possession
denied genuinely because inconsistent with purpose for which accommodation
provided, likely to be licence (Westminster City Council v Clarke [1992]).
Bare licences, licences coupled with interest & contractual licences
 Where licence gratuitously granted = bare licence limited in scope to purpose stated
(The Calgarth [1927], grantor may revoke at any time, following which, subject to
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REVISION NOTES W301 LAW: OWNERSHIP & TRUSTEESHIP – RIGHTS &
RESPONSIBILITIES
reasonable time to comply, grantee becomes trespasser against whom no force can be
used if complying & only reasonable force if not &, since purely personal between
licensor & licensee, neither benefit nor burden may be passed to another;
 Where licences coupled with rights, licensor may not revoke whilst right exists, &
such right may = legal interest (s.1(2)(a) LPA 25) so implied right holder has licence
to gain access which can’t be revoked whilst right exists & benefit & burden of related
licence pass with right;
 Contractual right to carry out activity embraces licence to enter & remain on premises
for those purposes so where licences given for specific purpose or time, can’t be
revoked whilst purpose/ time exist, provided licensees remain within licence terms
(Hurst v Picture Theatres Ltd [1915]) &, in absence of express licence grant, courts
may imply contractual licence to protect licensee (Tanner v Tanner [1975]);
 Benefit may be passed to others under contract law permits but, based on Thomas v
Sorrell, licences not create land interests so no prop right which can bind successors &,
whilst Errington v Errington [1952] held where there is contractual licence not open to
anyone – including those claiming through licensor - (other than purchaser for value
without notice) to ignore, Ashburn Anstalt v Arnold [1989] decided Errington wrong
in holding contractual licences could bind 3rd parties since conflicted with Lords’
decision in King v David Allen & Sons (Billposting) Ltd [1916] that contractual
licences gave no estate or interest in land, but, although licences not create prop rights
nor burden 3rd parties, could be enforced where evidence land owner’s conscience
should be affected so courts may impose burden on 3rd parties in such circumstances
by constructive trusts or prop estoppel.
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Effect on licences of constructive trusts & proprietary estoppel (PE)
 Whilst making sale subject to licence does not by itself create binding prop interest,
constructive trust may be imposed placing burden on licensor’s successor(s) since
‘taking subject to’ results in equity binding on purchaser (Binions v Evans [1972]) but
Binions found to be wrong in Ashburn which held, as per Lyus v Prowsa
Developments Ltd [1982], that stipulation not included to confer new rights but to
ensure encumbrances made known to purchasers, although, if buyer’s conscience
affected court might justly impose constructive trust;
 Where A encourages B’s expectation re interest in A’s land &, if B, relying on
expectation, then acts to his detriment, A estopped from denying B’s expectation &,
whilst Willmott v Barber (1880) laid down criteria (the five probanda) (i) claimant
mistaken belief re legal rights; (ii) must have spent money/ done some act in reliance
on belief; (iii) def had legal right knew inconsistent with belief; (iv) aware of mistake;
& (v) directly/ indirectly encouraged claimant to act as he did, broader approach now
taken & courts not permit reliance on legal rights where unconscionable to allow - in
particular, whilst knowledge of true position by defendant was relevant factor, not
always exist (Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982]) &,
whilst in some situations claimants should pre-advise defs what they proposed to do,
not always necessary so defs need not be forewarned of detrimental acts but need
merely to be aware might occur (Crabb v Arun District Council [1976]);
 Courts approach to PE allegations is (i) determine whether claimant established equity
& extent; & (ii) decide how to be satisfied so reliance based approach seeks to
compensate for loss incurred whereas expectation approach remedial & ascertains
expectations encouraged which court seeks to fulfil but approaches must be overall
flexible since some losses can’t be quantified & some expectations can’t be fulfilled,
bearing in mind remedies should = minimum equity to provide claimants with justice
(Crabb) so predicates overall reliance approach although generally not followed since
expectation frequently only way compensation achievable, so main if rare use of
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REVISION NOTES W301 LAW: OWNERSHIP & TRUSTEESHIP – RIGHTS &
RESPONSIBILITIES
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reliance = where expectations out of proportion to loss & where losses compensatable
without expectation fulfilment;
Where clear case of representation courts usually satisfy equity by fulfilling
expectations even where quantifiable loss but only satisfactory & just remedy was
expectation fulfilment (Dillwyn v Llewelyn (1862)) so courts balance detriment
suffered &/ or likely to be suffered against pure compensation &, where former
‘stronger’, equity may be better satisfied by fulfilling expectations (Pascoe v Turner
[1979]) but must be proportionality between parties & between expectation &
detriment, meaning justice must also be given to def since what is to be satisfied is
equity & not necessarily the expectations;& where detriment hard to quantify no
exhaustive factor list to be considered but, as per Sledmore v Dalby [1996], courts must
avoid unconscionable results which, inter alia, can arise from disproportionate remedies
(Jennings v Rice [2002]);
Remedies should not exceed expectations (Inwards v Baker [1965]) &, where fulfilment
forces those in disharmony to live together &, may result in potential windfall through
Settled Land Act 1925 in excess of envisaged expectations, equity satisfied by allowing
defs to remain in occupation until reimbursed for expenditure (Dodsworth v Dodsworth
[1973]);
PE binds successors by Taylor v Needham (1810) which held those who take estate
under deed not in better position than predecessor &, where licences provide mutual
benefit, not open to A to revoke B’s whilst continuing to enjoy own (Hopgood v Brown
[1955]);
Where right was not legal one since not created by deed & was not reg as equitable right
(class C(iv) or Class D(iii)), it was void against successor but if was mutual benefit &
burden, for buyer to continue to enjoy benefit, they & successors bound by burden (E R
Ives Investment Ltd v High [1967]) or were estopped from relying on non-reg (Old &
Campbell Ltd v Liverpool Victoria Friendly Society [1982]) &, alternatively, court
could order retrospective registration of charge against original party;
With reg titles, pre-LRA 2002, whilst uncertain what easements included within
overriding interests under s.70(1)(a) LRA 25, Celsteel Ltd v Alton House Holdings Ltd
[1985] held equitable easements openly exercised & enjoyed were included so such
right enforceable as overriding interest (Thatcher v Douglas [1995]) but, now, S.116
affirms equity effective from when arose & binds successors subject to rules re
dispositions effect on priorities re which s.29(1) says where such interests not protected
reg disposition for valuable consideration ‘postpones’ (i.e. avoids) them so, to be
protected must, under s.29(2), either be protected by notice or fall within Sch 3 but,
since Para 3 of Sch 3 only includes legal easements, equitable easement unenforceable
so unprotected unless claimant either (i) protected himself by notice in the purchaser’s
charge register (which unlikely rendering s.116 protection academic); or (ii) if in actual
occupation of transferred land, may gain protection under Para 2 of Sch 3 as overriding
interest, but, overall, rights post LRA 02 less secure.
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