•What is a licence?
•Lease/licence distinction
•Types of licence
What is a Licence?
“A dispensation or licence properly
passeth no interest, nor alters or
transfers property in any thing, but only
makes an action lawful, which without it
had been unlawful.”
Thomas v Sorrell (1673) Vaugh 330.
What is a Licence?
• No interest/estate in the land.
• Authorises presence on the land (i.e. not a
• Can be express/implied.
• Limits to implied licences.
Is there a Licence?
• Walk up neighbours garden path to deliver a
• You use a shortcut across your neighbours
garden to return to your house.
• You buy a ticket to watch you local football
• You go shopping in the local shopping mall
and in the evening go out to see a film.
What is a Licence?
• A licence does not create an estate or
interest in the land, it is personal to the
• No need for the licencee to have an
interest in the land.
• No formal requirements needed to
grant a licence.
Lease/Licence Distinction
• Lease:
– Proprietary right in the land binding on
lessors successors.
• Licence:
– Personal right that (usually) is not binding
on the licensor’s successors.
Lease/Licence Distinction
Security of Tenure
• Uratemp Ventures Ltd v Collins [2002] 1
All E.R. 46
– Was the long term occupant of a room in a
hotel occupying his room under a licence
or an assured tenancy (lease)?
– Held: Occupying under an assured tenancy
and therefore had security of tenure.
Lease/Licence Distinction
Repairing Obligations
• Bruton v London & Quadrant Housing
Trust [1999] 3 WLR 150.
– If the occupier was a tenant rather than a
licensee the Housing Trust would be under
a repairing obligation (s.11 Landlord &
Tenant Act 1985) that they would not be
under if the occupier was a licensee.
– Held: Tenancy had been created.
Lease/Licence Distinction
Possession Proceedings
• Manchester Airport plc v Dutton [1999] 3 WLR
– Did contractors who were on land under a licence
from the National Trust have sufficient standing to
bring court proceedings to remove protestors from
the land?
– Held: Yes, if necessary to give effect to the rights
of occupation under the licence agreement with
the National Trust.
Lease/Licence Distinction
• Hunter v Canary Wharf Ltd [1997] 2 All
E.R. 426.
– Could a licensee bring an action in
– Held: Licensee no right to sue in nuisance.
Liability in nuisance only protects interests
in land.
How distinguish a lease
from a licence?
• Exclusive possession:
“The tenant possessing exclusive possession
is able to exercise the rights of an owner of
land…a tenant armed with exclusive
possession can keep out strangers and keep
out the landlord.”
Lord Templeman in Street v Mountford [1985]
AC 809.
Exclusive Possession
• Appah v Parncliffe Investments Ltd
[1964] 1 WLR 1064.
– 17 separately occupied rooms in house
(shared bathroom).
– no notice required if wished to leave.
– Owner retained right to enter rooms.
– Rules regarding guests.
– Held: No exclusive possession of room and
therefore occupier licencee and not tenant.
Exclusive Possession
Is exclusive possession enough?
“There can be no tenancy unless the
occupier enjoys exclusive possession;
but an occupier who enjoys exclusive
possession is not necessarily a tenant.”
Lord Templeman in Street v Mountford
Intention to create legal
• Foster v Robinson[1951] 1 KB 149.
– Farm worker allowed to live rent free in cottage
after retired.
• Errington v Errington [1952] 1 KB 290.
– Young married couple occupied house belonging
to father.
• Marcroft Wagons Ltd v Smith [1951] 2 KB
– Daughter of former tenant allowed to remain in
property after tenant’s death
Intention to create legal
“In all the cases where an occupier has been
held to be a licensee there has been
something in the circumstances, such as a
family arrangement, an act of friendship or
generosity or such like, to negative any
intention to create a tenancy.”
Lord Denning in Facchini v Bryson [1952] 1
TLR 1386.
Exceptional Circumstances
• Norris v Checksfield [1991] 1 WLR 1241
– Condition of employment that occupied bungalow.
– Had exclusive possession of bungalow.
– Held: Licence (service occupancy)
• Other types of ‘exceptional circumstances’
– Trespassers.
– Purchaser allowed into occupation before
Subjective/Objective test?
• Facchini v Bryson [1952] 1 TLR 1386
– Held: Agreement created a tenancy even
though expressly provided in agreement
that it did not do so.
– Courts not be bound by the label attached
by the parties but look at:
• Nature of the relationship between the parties.
• Parties respective rights.
Subjective/Objective test?
• National Car Parks Ltd v Trinity
Developments Co (Banbury) Ltd [2002] 2 P &
CR 18
– Licence agreement to manage car park.
– 40 parking spaces to be kept available for owners
– Held: “While some attention would be given to the
terms used by the parties…substance of an
agreement would be more important than its form.
Subjective/Objective test?
• Street v Mountford [1985] AC 809.
– Agreement stated it was a licence.
– Referred to a licence fee rather than rent.
– Both parties expressed intention to create a
– Held: Lease.
“The manufacture of a five pronged implement of
manual digging results in a fork even if the
manufacturer…insists that he has made a spade.”
Lord Templeman
Lease/Licence Distinction
There must be exclusive possession for there
to be a lease.
There must have been an intention to create
legal relations between the grantor and the
Do any of the other exceptional
circumstances apply?
The subjective intention of the parties is not
always conclusive. It is the objective nature of
the agreement that is crucial.
Developments since Street
v Mountford
• ‘Sham clauses’.
• Retention of keys.
• Housing the homeless.
• Shared accommodation.
‘Sham Clauses’
• Aslan v Murphy [1989] 3 All E.R. 190.
– Small room 51 inches wide.
– Clauses in agreement:
• Owner introduce other occupiers.
• Occupier no right to use room between 10,30
and 12.00.
– Held: sham clauses.
Retention of Keys
• Aslan v Murphy [1989] 3 All E.R. 190.
• Duke v Wynne [1990] 1 WLR 766.
– Reason for retaining keys?
• Provision of services = licence
• Emergency access/read meters = lease
“It is not a requirement of a tenancy that the
occupier shall have exclusive possession of
the keys to the property. What matters is what
underlies the provision as to keys, why does
the owner want a key?”
Housing the Homeless
• Family Housing Association v Jones
[1990] 1 WLR 779.
– Agreement expressed to be a licence for
use of temporary accommodation.
– FHA kept key to offer help & inspect
condition of property.
– Held: Lease
Housing the Homeless
• Westminster City Council v Clarke
[1992] 2 AC 288.
– Agreement expressed to be a licence.
– Agreement provided for occupier could be
required to change rooms or share room
with another occupier.
– Held: Licence.
Shared Accommodation
• 4 Unities:
– Possession.
– Time.
– Title.
– Interest.
Shared Accommodation
• Antoniades v Villiers [1990] 1 AC 417.
• AG Securities v Vaughan [1990] 1 AC
• Mikeover v Brady [1989] 3 All E.R. 618.
Shared Accommodation
• Differences:
• Antoniades v Villiers
– Identical agreements entered into at same time.
– Exclusive possession.
• A G Securities v Vaughan
– Agreements had different dates, rent and periods.
– No exclusive possession.
Shared Accommodation
• Stribling v Wickham [1989] 2 EGLR 35.
– Look at in the light of all the surrounding
– Relationship between sharers.
– Details of negotiations.
– Nature and extent of accommodation.
– Intended and actual occupation.