Licences Introduction

1. LicencesIntroduction What is a licence? Lease/licence distinction Types of licence

2. 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.

3. What is a Licence? • No interest/estate in the land. • Authorises presence on the land (i.e. not a trespasser). • Can be express/implied. • Limits to implied licences.

4. Is there a Licence? • Walk up neighbours garden path to deliver a letter. • You use a shortcut across your neighbours garden to return to your house. • You buy a ticket to watch you local football team. • You go shopping in the local shopping mall and in the evening go out to see a film.

5. What is a Licence? Summary • A licence does not create an estate or interest in the land, it is personal to the parties. • No need for the licencee to have an interest in the land. • No formal requirements needed to grant a licence.

6. 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.

7. 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.

8. 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.

9. Lease/Licence Distinction Possession Proceedings • Manchester Airport plc v Dutton [1999] 3 WLR 524. • 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.

10. Lease/Licence Distinction Nuisance • Hunter v Canary Wharf Ltd [1997] 2 All E.R. 426. • Could a licensee bring an action in nuisance? • Held: Licensee no right to sue in nuisance. Liability in nuisance only protects interests in land.

11. 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.

12. 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.

13. 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

14. Intention to create legal relations • 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 496. • Daughter of former tenant allowed to remain in property after tenant’s death

15. Intention to create legal relations “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.

16. 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 completion.

17. 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.

18. 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 staff. • 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.

19. 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 licence. • 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

20. Lease/Licence Distinction Summary • 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 grantee. • 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.

21. Developments since Street v Mountford • ‘Sham clauses’. • Retention of keys. • Housing the homeless. • Shared accommodation.

22. ‘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.

23. 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?”

24. 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

25. 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.

26. Shared Accommodation • 4 Unities: • Possession. • Time. • Title. • Interest.

27. Shared Accommodation • Antoniades v Villiers [1990] 1 AC 417. • AG Securities v Vaughan [1990] 1 AC 417. • Mikeover v Brady [1989] 3 All E.R. 618.

28. 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.

29. Shared Accommodation • Stribling v Wickham [1989] 2 EGLR 35. • Look at in the light of all the surrounding circumstances. • Relationship between sharers. • Details of negotiations. • Nature and extent of accommodation. • Intended and actual occupation.