DOCSLIB.ORG

Licences to Occupy Land

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Licences to Occupy Land Durham E-Theses Licences to occupy land Rendell, C.A. How to cite: Rendell, C.A. (1988) Licences to occupy land, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/6403/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk LICENCES TO OCCUPY LAND A. Rendell Introduction 1 Section I The Development of the possessory licence: (a) Development up to ERRINGTON v ERRINGTON 6 (b) Development after ERRINGTON v ERRINGTON 33 Section II Licences and legislation controlling the relationship between landlord and tenant 62 Section III Licences and the Limitation Acts 93 Section IV Licences and informal family and quasi-family arrangements for occupation of property: (a) The need for licence concepts 116 (b) The position of the licensee at common law 134 (c) The intervention of equity 138 (d) Contractual licences: (i) Irrevocability and the original licensor 141 t i H ^ T rroTrnnah i 1 i fw anrl -t-V-i-i rr\ narHoc TfiO \ / • ' — 1 " J. -"• " ' — • (e) Proprietary estoppel: (i) The development of proprietary estoppel and application 185 (ii) Can a licence be irrevocable both in the law of contract and by reason of proprietary estoppel? 205 (iii) Proprietary estoppel and third parties 214 (f) Settled Land Act 1925 240 Conclusion 25 2 Bibliography 256 The copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. U '.'i'7 ;oqj.j J=i£lQ£ei_t9_S£cuB.v_land Section • 1 of the thesis.discusses whether the concept of a licensee in n;;cUt';i v'c po=spccion o:; 1 T,1 cd prior to the decision in';:ERRIWGTON V ERRINBTON and then prpceeeds to cnnsi dcr the tests which w;-re '.-.ubsequenrly developed to distinguish between \a licensee,in exclusive possession and a tenant. The aim.of the exercise is to show how the possessory licence, was in -fact developed to. deal with certain perceived need'.: i;;,af,unbrl in the r^mrining three sections. Section 11 sets out to show how the judiciary: became increasingly willing to use the concept of a possessory licence to avoid the full rigours of the Rent-'.- Acts as statutory controls-were increased and how in recent years' with a move towards deregulation, they have been less prepared to sp>e the licence fulfdll thi s' rol e"» \ Section 111 examines the use which has been! made of licence concepts to avoid the Li mi tation . Acts- and thereby, prevent a finding of "adverse possession. '• Given .. the amendments contained in the Limitation. Act ,: 1980 the section also considers the present scope as well as the! justification for use of the licence- in thi s •-way „ , ; . Finally Section IV shows how, in. contrast to the use of the licence, to detract .from occupational . security examined in . ''.Sectins 11 and H i ,-,:: licence concepts : have been used and developed . to. protect ,r,esidential security where informal fami 1y and :quasi—fami 1y arrangements - f or the occupation of property have^been made...' The Section considers the various approaches which have been taken by the courts in order to decide whether the developments were necessary and desirable, and in particular considers whether the. protection-of vulnerable .groups in society nccccsi t*tes rec""".! +• i nn. nf --the licence as an interest in • J. and .• INTRODUCTION The concept of a licence and aims of the thesis. In the legal context, a licence is simply a permission, dispensation or authorisation to do something which would not otherwise be lawful. As such, licences may arise in very diverse circumstances and either give rights to the licensee or merely a liberty or privilege to do a particular act. For instance, a licence may arise out of central or local government regulations which in some way restrict the activities of citizens, e.g. the need for a licence to drive a car on the public highway, to sell alcoholic liquor, to use a television set etc. Licences may also be granted to interfere with the body of another in some way (e.g. to cut a person's hair, remove his teeth , have sexual intercourse), thereby negating the tort of trespass to the person and, in some cases, a crime. Finally, a licence may be given by an owner of any type of property to permit interferahce with such property in some prescribed way, e.g. destroy a pet, to use a telephone, to enter land (preventing the tort of trespass to property), to reproduce certain material (preventing a breach of copyright). The concern of this thesis, however, is with only one type of situation in which licences occur, namely, licences to occupy the land of another, whether exclusive or non-exclusive. Of this particular area of law, a New Jersey judge once commented: "The adjudications upon this subject are numerous and discordant. Taken in their aggregate, they cannot be reconciled and if an attempt should be made to arrange them into harmonious groups, I eccentric in their application of legal principles, as well as in their logical deductions, as to be impossible of classification."(1) Arguably, the same comment is appropriate to judicial treatment of the licence in the English courts since the beginning of the present century. Hanbury and Maudsley express the view: "The history of licences is a remarkable story of false trails and confused thoughts."(2) The aim of this thesis then is to study the development of occupational licences in an attempt to dispel some of the confusion and to suggest the way forward. The study is divided into four main sections. The first Section, 1 Section I traces the development of the possessory- licence, that is to say the notion that a licensee may be in exclusive possession of land. Sections II and III look at the use the judiciary have made of the concept of the possessory licence in avoiding the statutes collectively known as the Rent Acts (Section II) and the Limitation Acts (Section III). The final section, Section IV considers the role occupational licences have been made to play in family or quasi-family arrangements concerning real property. In each section, in addition to tracing and explaining why judges have made use of licence concepts in the particular sphere in issue, an attempt has been made to evaluate the necessity and desirability of such developments from the practical as well as the theoretical point of view, and to look at present as well as future trends. In the context of real property, the term 'licence' was originally used in contrast to the situation where a person was on the land of another by virtue of some 'interest in land'. A finding of a licence in relation to land was therefore essentially a negative thing; it was a judgement on what the interest is not, compared with what it might be. Hence, in THOMAS v SORRELL, Vaughan C.J. explained: "A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful."(3) It is arguable, that since Vaughan C.J. made his statement, the law has developed in such a way that a licensee may in some circumstances have an interest in land. This issue will be discussed fully in Section IV. w . w.1. , — >- ^.^^^^.^ — — • . ~ the House of Lords in STREET v MOUNTFORD, Lord Templeman reiterated the traditional understanding of licences emphasising their negative nature. He said: "The licence does not create an interest in land to which it relates but only makes an act lawful which would otherwise be unlawful."(4) From the outset, it is important to note that care is required in defining licences, especially where a comparison is expressly or implicitly being drawn with an interest in land. In this respect, some of the principal textbook writers are not very helpful, as they define licences relating to land in terms which are positive. For example, Cheshire and Burn say: ". .. a licence is essentially a permission to 2 enter upon the land of another for an agreed purpose. The permission justifies what would otherwise have been a trespass."(5) Similarly, in the opening to the chapter on licences, Megarry and Wade say: "Fundamentally a licence is a mere permission which makes it lawful for the licensee to do what would otherwise be a trespass."(6) Such definitions obscure the essentially negative nature of a licence, and are the starting point for the confusion which has arisen in relation to occupational licences. In MARCROFT WAGONS LTD v SMITH, where the court was called upon to decide-^hether the occupier was a tenant or a licensee, Roxb/orough L.J. was hesitant in his use of the term 'licence'. After refusing to find the occupation was as tenant, he commented: "How the interest of the occupant ought, in those circumstances to be described, I do not know.
Load more

Recommended publications
  • Faculty of Law Part a Bar Course 2011 Land
    FACULTY OF LAW PART A BAR COURSE 2011 LAND LAW PART A BAR COURSE 2011 LAND LAW READING LIST & SYLLABUS COURSE CONTENT This course introduces the basic elements of Singapore land law. It begins with the historical background of the law operative in Singapore. The concepts of tenure and estates as modified by local legislation, particularly the State Lands Act, will be considered. The course then focuses on the ways in which land can be held and dealt with. Specific interests in land, such as leases, mortgages, licences, easements, restrictive covenants, and covenants relating to freehold land will be considered. In regard to the Land Titles Act, the concept of indefeasibility and the role and function of caveats will be discussed. Students will also be introduced to the law relating to HDB flats and to the special nature of ownership in strata title properties, including the collective sale of such properties. EXAMINATION Candidates will be assessed solely by way of the end of semester examination. All topics in this syllabus will be examinable. STATUTES *Conveyancing and Law of Property Act (CLPA) (Cap 61) *Land Titles Act (LTA) (Cap 157) State Lands Act (Cap 314) Land Titles (Strata) Act (Cap 158) Building Maintenance and Strata Management Act (Cap 30C) Registration of Deeds Act (RODA) (Cap 269) Residential Property Act (Cap 274) Singapore Land Authority Act (Cap 301) Settled Estates Act (Cap 293) Application of English Law Act (Cap 7A) Civil Law Act (Cap 43) * Students should purchase their own copies of these statutes. Certain materials are red‐spotted in the Reserve Section of the Library.
    [Show full text]
  • Land Law Lawcards 2012-2013
    Land Law 2012–2013 223657.indb3657.indb i 110/28/110/28/11 3:263:26 PMPM Eighth edition published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Routledge All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation and explanation without intent to infringe. First edition published by Cavendish Publishing Limited 1997 Seventh edition published by Routledge 2010 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978–0–415–68343–2 (pbk) ISBN: 978–0–203–30845–5 (ebk) Typeset in Rotis by Refi neCatch Limited, Bungay, Suffolk 23657.indb ii 10/28/11 3:26 PM Contents Table of Cases v Table of Statutes xv Table of Statutory Instruments xxiii Table of European Legislation xxv Abbreviations xxvii How to use this book xxix 1 Fundamental concepts 1 2 Conveying title to land with unregistered title 11 3 Transferring title to land with registered title 19 4 Adverse possession and boundaries 31 5 Trusts of land 39 6 Resulting trusts, constructive trusts, proprietary estoppel and licences 53 7 Leases 67 8 Mortgages 85 9 Easements and profi ts à prendre 97 10 Freehold covenants 109 11 Putting it into practice .
    [Show full text]
  • Introduction to Land
    ‘The text is clear and easy to understand. It explains the issues very well indeed without over-simplifying fundamental points.’ Introduction to Land Law Introduction Dr Janine Griffi ths-Baker, Senior Lecturer, School of Law, University of Bristol ‘A clear, concise and accurate introductory text written by a leading authority in land law.’ Introduction to Dr Antonia Layard, Lecturer, School of Law, Cardiff University ‘Comprehensive and well-structured.’ Shan Cole, Senior Lecturer, School of Law, University of Glamorgan Land Law Roger Smith’s Introduction to Land Law presents a SECOND EDITION straightforward account of the law and its effects, giving a clear and accessible explanation of concepts students often fi nd diffi cult to grasp. It illuminates the interesting and thought-provoking issues stemming from land law. Roger J. Smith A unique chapter structure allows students to understand the fundamental place and practice of each subject area before delving into some of the deeper matters they will be expected to engage with throughout their course: • Nature and importance sets out, by use of examples, how the law functions and why it is important. Do you want to give yourself a head start come • Main issues and rules clearly explains the key exam time? principles in detail, including case analysis and diagrams where helpful. • Critical and controversial issues introduces areas Visit www.mylawchamber.co.uk/smithintro of topical debate and controversy, outlining the key to access interactive quizzes, sample issues and arguments, then encouraging students to exam questions with answer guidance, and form their own assessment of the law in each area.
    [Show full text]
  • Type Content Here… (Font: Arial, Size
    McFarlane, Hopkins & Nield: Land Law, Text, Cases and Materials, 4th edition Answer Guidance Chapter 7 Question 1: What is the key difference between a personal right and a property right? Is it true to say that, if B has a pre-existing property right that right will always bind C; whereas if B has only a personal right, then B will never have a claim against C? If B has a personal right against A, this simply tells us about the legal relationship between A and B: so B’s personal right against A is binding only on A. In contrast, if B has a property right, that right is capable of binding anyone – it is not simply personal, as it is not linked to a specific person, but is instead linked to specific property. Some care must be taken however. First, it is not true to say that B’s pre-existing property right will always bind C: it may be possible for C to have a defence against B’s right. We encountered the lack of registration defence, for example, in Chapter 3, and will consider defences in detail in Chapters 15, 16 and 17. Secondly, it is not true to say that if B has only a personal right against A, then B will never have a claim against C. B cannot assert against C the personal right against A, but that does not prevent B having a different right that binds C. We will consider some cases in which B can acquire such a right in section 3.3.
    [Show full text]
  • Principles of Land Law
    Principles of Land Law Fourth Edition Cavendish Publishing Limited London • Sydney EDITORIAL ADVISORY BOARD PRINCIPLES OF LAW SERIES Professor Paul Dobson Visiting Professor at Anglia Polytechnic University Professor Nigel Gravells Professor of English Law, Nottingham University Professor Phillip Kenny Professor and Head of the Law School, Northumbria University Professor Richard Kidner Professor and Head of the Law Department, University of Wales, Aberystwyth In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects. Principles of Land Law Fourth Edition Martin Dixon, MA Fellow and University Senior Lecturer in Law Queens’ College, University of Cambridge Cavendish Publishing Limited London • Sydney Fourth edition first published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com © Dixon, Martin 2002 First edition 1994 Second edition 1996 Third edition 1999 Fourth edition 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyrights Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the prior permission in writing of the publisher.
    [Show full text]
  • Modern Land Law
    MODERN LAND LAW Sixth Edition Modern Land Law provides a user-friendly yet comprehensive account of this foundation subject. Explaining land law in an understandable and logical fashion, this new edition has been substantially rewritten and revised to take into account developments since the publication of the last edition in 2005. In addition, each chapter has been expanded and updated to include an analysis of the most recent case law including Doherty v. Birmingham City Council and Yeoman’s Row Management v. Cobbe. Written with students in mind, key features of this textbook include: ● a clear introduction to each chapter ● concise and understandable treatment of all the major topics covered on an undergraduate course ● a concluding summary to each chapter ● in-depth coverage of recent significant developments ● increased use of tables and diagrams to aid understanding of complicated topics. Modern Land Law provides a readable, clear and thorough exposition of the principles of land law. Comprehensive yet succinct it is the perfect text for an undergraduate course. Dr Martin Dixon is Reader in the Law of Real Property at Cambridge University and a Fellow of Queens' College, Cambridge. He is visiting Professor of Law at City University, London. He examines and writes exten- sively on property law and is the editor of The Conveyancer and Property Lawyer, the leading property law journal. He is also an author of Ruoff and Roper: The Law of Registered Conveyancing, the authoritative text on the modern land registration. MODERN LAND LAW Sixth Edition Dr Martin Dixon Sixth edition first published 2009 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY10016 This edition published in the Taylor & Francis e-Library, 2009.
    [Show full text]
  • Imagereal Capture
    Nicholas Shaw* CONTRACTUALISATION AND THE LEASE-LICENCE DISTINCTION INTRODUCTION E lease-licence distinction, which is essentially one between proprietary rights to land and other (frequently contractual) rights, placed in a particularly difficult factual context, has proved remarkably resilient despite its problematical nature. TAlthough courts in other common law jurisdictions have shown signs of weakening, Australian courts have rigidly maintained the distinction between the lease and the licence, the proprietary and the non-proprietary, the in rem and the in personam. At the same time, however, the factor underpinning that distinction, namely the proprietary nature of the interest granted by a lease, has come under review. Leases are well known as possessing dual natures both as contracts and as conveyances of a term of years. Over the last decade or so there has been a marked trend towards the "contractualisation" of leases, namely the favouring of the contractual nature of the lease and a subversion of the proprietary side. I will argue that in many respects the movement to contractualisation has taken place without an adequate conceptual framework to explain the subversion of property doctrines. As the law presently stands, it is difficult to see upon what basis that subversion has taken place, and hence its extent and applicability to other areas of the law which depend upon proprietary doctrines. In particular, it is of interest to see to what extent the distinction between contractual licences and leases can survive the conversion of the latter into, essentially, a refined form of the former. The structure of this article is as follows.
    [Show full text]
  • The Doctrine of Parol Agreement Trusts
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Wolverhampton Intellectual Repository and E-theses THE DOCTRINE OF PAROL AGREEMENT TRUSTS AND FRAUD IN EQUITY: AN HISTORICAL-DOCTRINAL ANALYSIS OF EQUITY'S JURISDICTION UNDER THE HEAD OF FRAUD TO IMPOSE TRUSTS ARISING OUT OF PAROL AGREEMENTS. GREGORY WILLIAM ALLAN, LLB, LLM A thesis submitted in partial fulfilment of the requirements of the University of Wolverhampton for the degree of Doctor of Philosophy. October 2016 This work or any part thereof has not previously been presented in any form to the University or to any other body whether for the purposes of assessment, publication or for any other purpose (unless otherwise indicated). Save for any express acknowledgments, references and/or bibliographies cited in the work, I confirm that the intellectual content of the work is the result of my own efforts and of no other person. The right of Gregory William Allan to be identified as author of this work is asserted in accordance with ss.77 and 78 of the Copyright, Designs and Patents Act 1988. Signature....Gregory Allan............................... Date........13/02/17............................................. Acknowledgment I would like to extend my immense gratitude to my Director of Studies, Professor Peter Walton, for his unfailingly insightful advice in respect of this thesis and also in relation to my research career more generally. I am similarly indebted to Professor Roger Gregory, who was the primary source of inspiration for both the subject matter of my research and the means by which it was, and continues to be, conducted.
    [Show full text]
  • Part a Bar Course 2014
    PART A BAR COURSE 2014 LAND LAW Professor Teo Keang Sood PART A BAR COURSE 2014 LAND LAW Reading List and Syllabus Course Content This course introduces the basic elements of Singapore land law. It begins with the historical background of the law operative in Singapore. The concepts of tenure and estates as modified by local legislation, particularly the State Lands Act, will be considered. The course then focuses on the specific interests in land, such as leases, mortgages, licences, easements, restrictive covenants, and covenants relating to freehold land. In regard to the Land Titles Act, the concept of indefeasibility and the role and function of caveats will be discussed. Students will also be introduced to the law relating to HDB flats and to the special nature of ownership in strata title properties, including the collective sale of such properties. Examination Candidates will be assessed solely by way of the end of semester examination. All topics in this syllabus will be examinable. Statutes *Conveyancing and Law of Property Act (CLPA) (Cap 61) *Land Titles Act (LTA) (Cap 157) State Lands Act (Cap 314) Land Titles (Strata) Act (Cap 158) Building Maintenance and Strata Management Act (Cap 30C) Registration of Deeds Act (RODA) (Cap 269) Residential Property Act (Cap 274) Singapore Land Authority Act (Cap 301) Settled Estates Act (Cap 293) Application of English Law Act (Cap 7A) Civil Law Act (Cap 43) * Students should purchase their own copies of these statutes. Certain materials are red-spotted in the Reserve Section of the Library. Virtually all the materials listed here are available online using Lawnet (www.lawnet.com.sg), which contains Singapore legislation, Singapore, Malaysian and English cases, and also articles published in certain law reviews.
    [Show full text]