Licenses

How did Lord Denning try to argue that contractual rights are proprietary interests?

(1) Errington v Errington. Without authority, he decide that licenses are a right of their own and can bind third parties (as they can be specifically enforced) (2) Errington received judicial and academic criticism. McFarlane stated it reflets Lord Denning's fundamental misunderstanding of property rights. SP does not give proprietary status (confirmed in Ainsworth) (3) National Provincial Bank: CA disagreed about Errington. Denning justified it (in relation with inconsistent previous case law) by arguing that in Erringotn there was actual occupation. Russell LJ strongly disagreed (there was actual occupation in Clore), but the HL did not comment on the issue. (4) Binions v Evans: CA Lord Denning gave an alternative reason (reaching the same conclusion as the majority) based on licenses being a proprietary interest (5) DHN Food Distributors: Lord Denning argued that a constructive trust arose due to the irrevocability of contractual licenses.

What is the effect of a contractual license?

(a) Prevents the licensee from being liable for trespass (b) Licensee can resort to any of the remedies for breach or anticipatory breach of contract, such as injunctions, specific performance or damages

What two factors could have influences King and Clore in finding that the contractual licenses are purely personal?

(a) They did not concern licenses which granted exclusive possession (Maudsley) (b) They were decided before Winter Gardner, which established the irrevocability of some contractual licenses

How can a bare license be created?

A bare licence can be granted expressly or impliedly.

What is the nature of a bare license?

A gratuitous permission granted by a landowner (there is no consideration).

What is the nature of a contractual license?

A licence arising as a result of a contract between the parties

What is a license?

A licence is permission to do something the licensee would otherwise have no right to do. Gray and Gray say it is "a chameleonic device which performs many different kinds of funcions"

What is a license coupled with an interest?

A licence to enter land which is ancillary to and necessary for the enjoyment of the grant of an interest.

What are the facts of Tanner v Tanner?

A persuaded the mother of his children to move into a flat he bought. She gave up a rent-controlled flat to do so. After A got married he wished to evict her. The court found a contractual license (strained interpretation of the law by Lord Denning)

What is the effect of a license coupled with an interest on successor?

As long as the interest binds successors, so does the license

Why is a statement that the purchase is subject to any rights is not enough to form a constructive trust?

Cause these are very common, and the seller has a duty to disclose them - Chaudhary v Yavuz

Is a contractual licence revocable at will?

Common law view is that they can be revoked at any time - Wood v Leadbitter Equity is was prepared to intervene in certain circumstances - Winter Garden Theatre (London) Ltd v Millennium Productions Ltd Current law is that some are irrevocable, others are revocable on reasonable notice.

A father bought a house for the occupation of his newly married son and told his son and daughter-in-law that if they paid the mortgage instalments he would transfer ownership of the house to them. Father's widow sought possession against daughter-in-law (the son had moved out).

Errington v Errington

Building contract which required the execution of specified works on the site within a 4-year period. Was the license revocable?

Hounslow LBC v Twickenham Garden Developments Ltd [1971] - Irrevocable whilst the action is commencing. 'Equity will not assist a man to break his contract'.

Can a license coupled with an interest be based on a non-proprietary interest?

Hurst v Picture Theatres Ltd [1915] CA - Yes - purchasing ticket granted a license to enter Hounslow LBC v Twickenham Garden Developments (obiter): "the court should hesitate very long" before accepting a license coupled with a non-proprietary right Winter Garden Theatre (London) Ltd v Millennium Productions Ltd declined to follow this analysis Hurst has not been followed in Australia or New Zealand

Do constructive trusts give rise to a proprietary right that binds future purchases?

In Lyus there were two purchasers and a constructive trust was imposed on both without much discussion. It is suggested that the better view is that it only creates a personal right

What is the effect of a bare license?

It saves the licensee from liability for trespass (as long as the terms are complied with) - The Calgarth

In this case, there was a contract for the sale of growing timber - includes obvious right to access that land, cut timber, and take it away

James Jones v Earl of Tankerville [1909]

What are the necessary elements for the creation of a contractual license?

Just like a contract, one needs an agreement, consideration, and the intention to create legal relations

A was given a license to put posters on a wall of a cinema. The land was leased to a 3rd party (with no reference to the license). The tenant had actual notice of the license. The licensor had intended to assign the burden but had forgotten to do so. Original licensor successfully sued, but new purchaser not bound.

King v David Allen [1916] - contractual licenses are a purely personal interest, confirmed in Clore v Theatrical Properties Ltd [1936]

Do contractual licenses bind purchasers of land?

King v David Allen [1916]: No - it is a purely personal interest (confirmed in Clore) Lord Denning tried to give them proprietary status in a series of cases (Errington v Errington, National Provincial Bank v Hastings, Binions v Evans) After reviewing all the pre-Errington authorities, it was confirmed in Ashburn Anstalt v Arnold that it is a purely personal interest (obiter) Ashburn was confirmed in Camden LBC v Shortlife Community Housing.

Can a person with a contractual license bring proceedings against a 3rd party trespasser?

Manchester Airport v Dutton - Yes, even if they are not in occupation at the time.(controversially, even if the trespasser had entered before the contractual license was granted)

Does a contractual license being irrevocable give rise to a constructive trust?

No Ashburn v Arnold

Are licenses personal or proprietary interests?

Personal - Thomas v Sorrell, confirmed by Lord Wilberforce in National Provincial Bank v Ainsworth

What is a common example of an impliedly granted bare license?

Robson v Hallett - "...the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house."

Can a contractual license be found in a family context?

Tanner v Tanner CA says yes (Lord Denning). Tanner was not followed in Horrocks v Forray (lack of consideration), and was followed in Chandler v Kerley. Today it would probably be decided on proprietary estoppel (see Southwell)

Could a claim be made that contractual rights should be proprietary under Art 8 ECHR?

There would need to be (a) A public authority (b) Proportionality test, which damages would usually be sufficient (c) Proprietary rights are difficult to establish in proportionality - Manchester City Council v Pinnock

A court will not order specific performance of a contractual license if it forces two people who do not wish to do so to live under the same roof

Thompson v Park 1944

Council have license to National Front to hold its annual conference at a hall owned by the council for £6,000. Following elections, the new Council cancelled the contract, and the National Front could not find alternative accommodation.

Verrall v Great Yarmouth BC [1980] - CA Specific performance was ordered.

There was a license to use a theatre to stage performances for an indefinite period. The HL said the parties could not have intended a perpetual license, and it was thus revocable upon reasonable notice. If there is not term for reasonable notice, the courts will imply one (second case).

Winter Garden Theatre (London) Ltd v Millennium Productions Ltd Prudential Assurance Co Ltd v London Residuary Body

Can a bare license be revoked at any time?

Yes - the licensee then has a reasonable time to leave the premises Robson v Hallett

Does a contractual license arising from proprietary estoppel give a proprietary right?

s. 116 LRA could be used to argue that. However, this is against Parliament's intention

What is the problem re legislation if courts decided to ascribe proprietary status to contractual licenses?

s.4 of the LPA 1925 stipulates that no new proprietary interests that did not exist before can be created. Courts would have to argue it existed before 1925, which Briggs argues does not seem possible.