Licences and Proprietary Estoppel

• Pages: 26-42

DOI: 10.4324/9781003186946-3

A licence is essentially a permission given by the owner or occupier of land (the

‘licensor’) to another person (the ‘licensee’) to enter upon the land for some purpose,

for example to lodge in a room, to view a film, or to swim in a pool: acts that might

otherwise amount to a trespass.

Until fairly recently, a licence was considered to be, at most, a mere contractual

arrangement between two persons, subject to the usual privity rule, but in the last

50 or so years, some licences have come to be regarded almost as proprietary inter-

ests in land, which are binding not only on the licensor, but also on third parties.

This is particularly the case with licences arising by estoppel, where a party has no

recognised legal or equitable interest in the land, but it would be inequitable in the

particular circumstances for him/her to be denied a right to occupy. This is an area

of the law that is still in the process of development, and it may be that a new right

in alieno solo is emerging.

TYPES OF LICENCE

There are four generally accepted categories of licence:

(a) bare licence;

(b) licence coupled with an interest;

(c) contractual licence; and

(d) estoppel licence.

Bare licence

A bare licence is one granted otherwise than for valuable consideration. It amounts

to a mere permission to enter upon the licensor’s land: for example, an invitation to

dinner, or to play a game of tennis. Such licences may also be implied: for instance,

a postman has an implied licence to enter premises in order to deliver mail, and it

has been suggested that, in the absence of a locked gate, the occupier of a dwelling

house gives an implied licence to any member of the public to pass through his gar-

den or yard and up to his front door in order to communicate with him/her;1 also,

a commercial organisation may be taken to give implied licences to persons who

enter in good faith in order to do business or acquire information.2 Abare licence

can be withdrawn at any time by the licensor without notice, but the licensee must

be given a reasonable time to leave. What is a reasonable time will depend on the

circumstances.3

1 Robson v Hallett [1967] 2 QB 939.

2 See Davis v Lisle [1936] 2 KB 434; Great Central Rly Co v Bates [1921] 3 KB 578.

3 Robson v Hallett [1967] 2 QB 939.

CHAPTER 3

LICENCES AND PROPRIETARY ESTOPPEL

Licences and proprietary estoppel 27

Licence coupled with an interest

The prime example of this type of licence is where a person who has been granted a

profit à prendre, such as a right to take growing timber or game from the land, acquires

a licence to enter the land in order to enjoy the right. Such a licence is not eective

at law unless the profit has been formally granted by deed.4 Being incidental to the

enjoyment of an interest in land, a licence coupled with an interest is irrevocable5

and binding on third parties.

Contractual licence

A contractual licence is one granted for valuable consideration. It may be ‘short-

term’, for example, where a person buys a ticket in a cinema, or for a football or

cricket match,6 or for temporary car parking;7 it may be ‘medium- term’, an example

of which would be annual membership of a golf or tennis club; or ‘long- term’, as in

the case of the lodger who is given the right to occupy a dwelling house for a period,

such right not amounting to a lease or tenancy.

Revocability of contractual licence

At common law, a licence other than one coupled with a grant or interest is revo-

cable at any time by the licensor, whether the licence is gratuitous or contractual.8

Thus, in Wood v Leadbitter,9 in which Wood had bought a ticket to view horse racing

and was forcibly ejected from the racecourse in breach of the contract, it was held

that Leadbitter, the licensor, was entitled to revoke Wood’s licence at any time and

that, once he did so, Wood became a trespasser who could be lawfully ejected with

reasonable force. Wood’s argument that he had an irrevocable licence to enter and

remain in the racecourse enclosure during the whole period of the race meeting was

rejected. Accordingly, Wood could not sue Leadbitter for assault and his only rem-

edy was for damages for breach of contract, which would be nominal.

However, equity may come to the aid of the licensee in that, where a contractual

licence purports to confer a right to enter and remain on land for a particular pur-

pose or for a specified period, the court may imply a negative contractual term to the

eect that the licensor will not revoke the licence before the purpose or period has

been completed. Accordingly, a court of equity may grant an injunction to restrain

the licensor from revoking the licence in breach of the contractual term10 and, where

appropriate, may compel the licensor to carry out the bargain by means of a decree

of specific performance.11 Of course, in the case of very short- term licences, such as

that in Wood v Leadbitter, the award of an injunction or specific performance would

4 Wood v Leadbitter [1843–60] All ER Rep 190.

5 Ibid.

6 See, eg, Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1947] 2 All ER 331; Hurst

v Picture Theatres Ltd [1915] 1 KB 1, in which the court somewhat misleadingly categorised the

licence as one coupled with an interest; Mayfield Holdings Ltd v Moana Reef Ltd [1973] 1 NZLR 309.

7 Ashby v Tolhurst [1937] 2 KB 242, at 249.

8 See Hardware v Levy (1971) 12 JLR 330, Court of Appeal, Jamaica.

9 [1843–60] All ER Rep 190.

10 Winter Garden T heatre (London) Ltd v Millennium Productions Ltd [1947] 2 All ER 331.

11 Verrall v Great Yarmouth BC [1980] 1 All ER 839.