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LICENSES

1. INTRODUCTION
A license is merely permission to be on the land (implicitly suggesting the owner
has consented) with no attendant proprietary interest.
o [A] license [which]properly passeth no interest, nor alters nor transfers
property in anything, but only makes an action lawful which, without it,
had been unlawful. Thomas v. Sorrell (1673)
Put simply, the conventional attitude was that a licensee simply was not a
trespasser, but he hardly has anything more than that status.
That permission to be on the land may well turn into a right if A and B had a
contract.

The importance of exclusive possession


In the topic of LEASES, it was established that the HL in Street v. Mountford
(1985) had re-asserted tt exclusive possession was the litmus test tt differentiated
leases from licenses. However, a number of subsequent decisions (Colchester BC
v. Smith [1991, first instance decision]) relied on the dictum of Lord Templeman in
Street as laying down certain exceptional circumstances where exclusive
possession did not necessarily mean a tenancy.
This position has been accepted by our SGCA in Goh Gin Chye v. Peck Teck
Kian Realty Pte Ltd [1987]:
o The intention of the parties is an important consideration in determining
the relationship of landlord and tenantthe intention must be sought
from its substance and from the conduct of the parties...[E]xclusive
possession is also not the sole and only criterion, there may be
circumstances negativing an intention to create a tenancy.

There are 4 categories of licenses: (1) bare or gratuitous license; (2) license
coupled with a grant; (3) contractual license; and (4) license coupled with an
equity.

2. BARE LICENSE
A bare license is the classic form of a license it is a mere privilege to be on the
land of the licensor.
o It is purely gratuitous ie. no contract
o It is personal ie. cannot be assigned and will not bind assignees of the
licensor.
o The effect is merely that the licensee cannot be deemed a trespasser.

Halliday v Nevill (1984, HCA)


Facts A had been drinking and was going to go out. As he drove out of
driveway, he saw patrol car and reversed back in.
However, patrol car had seen him doing so and they stopped
their car, alighted and entered the premises by walking down
the open driveway.
They engaged A in conversation and determined tt he had been
drinking, hence they arrested him there on his driveway.
A tried to escape officers wrestled with him A told the officers
to F*** Off but officers still wrestled him to the ground.
Issue Whether officers had license to be on As driveway and whether that
license had been revoked by As use of expletives.
Decisio HCA held tt officers had license to be on the driveway and that
n and license had not been revoked.
Reasoni A licence will, as a matter of law, be implied unless there is
ng something additional in the objective facts which is capable
of founding a conclusion that any such implied or tacit
licence was negated or was revoked.
In a residential setting, an unobstructed driveway is held out
by the occupier as the bridge between the public
thoroughfare and his or her private dwelling upon which a
passer-by may go for a legitimate purpose.
In the present case, that license to the officers was not
revoked by way of the use of expletives bec. it was used
more to vent anger than anything else.

Note that the termination of a bare license at common law is at will - Tan Hin
Leong v Lee Teck Im [2000], per G P Selvam J:
o The concept of licence stemmed from the feudal politico-economic system
of land-holding ... Under it the peasant and pedestrian could step on the
land with the permission and sufferance of the squire who owned it but
must step out when the licence was revoked.
o But licensor must give licensee a reasonable time to pack up his/ her
belongings.

3. LICENSE COUPLED WITH A GRANT


This arises when A grants to B a profit (this is not the profit understood in the
layman term, but rather the short-form of the French phrase profit--prendre
which is a right to take natural resources out of As land). A license (or
easement) must necessarily attach to that grant of profit.
o And that license will last for as long as the profit is granted for (James
Jones & Sons Ltd v. Earl of Tankerville [1909])
But of course, that interest coupled with the grant must be an interest in land that
is for the purpose of fulfilling the purpose of the profit.

4. CONTRACTUAL LICENSE
A and B have a contractual agreement whereby A grants B a license to be on As
land in return for some consideration.
o Essentially a contract; however, for long-term contractual licenses, they
begin to look curiously like leases.
o Also, the judicial stance has shifted from that of strictly denying proprietary
interests to that of conferring rights that may seem like proprietary rights.
A contractual license seems to differ from others in two critical areas
Revocability and Effect on 3rd Ps.
4.1 Revocability
o Traditional view was very strict even in a contractual license, the licensor can
revoke it at any time.

Locus classicus: Wood v. Leadbitter [1845]


W paid ticket for watching horse races unceremoniously thrown out for no
reason W sued for assault.
Ct HELD tt W merely had a license that could be revoked at any time; hence,
raceowners act of forcibly throwing him out was not wrong
Note tt in this case, breach of contract was not pleaded, otherwise W would
likely have succeeded for breach.

o However, the judicial attitude to Wood was not positive and many decisions
fought to distinguish it. In Hurst v Pictures Theatres Ltd [1915] similar to
Wood but involved ticket to watch a movie Ct held tt this should be treated
as a situation of a license coupled with a grant and so the license is
irrevocable for the intended period of the grant Hence, HELD tt assault was
unlawful.
o Of course, this was a wrong view of licenses coupled with a grant bec.
watching a show is not one that has any connection with land (unlike
the granting of a profit).
o Real change in judicial attitude only came in Winter Garden which while
recognizing that a contractual license cannot be terminated at will, it is still
purely contractual in nature.

*Winter Gardens Theatre (London) Ltd v Millenium Productions Ltd


[1946, HL]
Facts The WGT granted M a licence to use their theatre, for producing
stage plays, concerts or ballets, for six months from July 6, 1942,
with an option to continue for a further six months at an
increased rent.
At the expiration of the two six-month periods, there was option
to continue usage through payment of weekly rentals.
M did not have exclusive possession bec. WGT still retained
management of bars and cloakrooms.
WGT then sought to end the lease without specifying breach of
any of the terms of the license. Problem was that there was no
express provision that said how the lease was to be
determined.
Issue Whether WGT can determine the lease without alleging breach and
whether a reasonable period of notice had been given.
Decision HL entered judgement for WGT license was not perpetual and it
had been properly determined with reasonable notice.
Reasonin On a Licensors right to revoke license
g - A contractual license is simply a license and hence the right to
revoke depends upon a true construction of the terms of the
contract.
- Hence it is necessary to imply a negative contractual term
restraining revocation until the termination of the
purpose for which the contract was made.
- Where the contract does not provide express terms of
termination, courts have to imply appropriate terms as to the
reasonable period of notice according to the circumstances of the
case.

On granting Injunctions for wrongful revocation


The general rule is before equity will grant an injunction, there
must be, on the construction of the agreement, a negative
clause, express or implied. (hence the need to imply the negative
contractual term above).
The settled practice of the courts of equity is to do what they
can by an injunction to preserve the sanctity of a bargain [A]
licensee who has refused to accept the wrongful
repudiation of the bargain is as much entitled to the
protection of an injunction as a licensee who has not received
any notice of revocation; and, if the remedy of injunction is
properly available in the latter case against unauthorized
interference by the licensor, it is also available in the former
case. In a court of equity, wrongful acts are no passport to
favour. at 202

In the present case


Ct held tt parties did not intend a perpetual license
(though its theoretically possible), hence it must be capable of
being determined. Court implied that the reasonable period of
notice was met and license was determined.

Significa Turn away from the fiction that a case of contractual license is
nce of analogous to a license coupled with a grant. Hence, restrain on a
decision licensors right to revoke license is due to contract and not land
law.
Entitled a licensee to sue for injunction restraining a licensor
from determining the license significant bec. even though a
licensee may sue in breach, he can do nothing to stop a licensor
from actually removing him. The opening of the door of
injunctions provided a real remedy in such predicaments.
But note tt a licensees right against being thrown out is not
proprietary but contractual in nature it takes ref. from basic
contractual principles tt a innocent party of a repudiatory breach
has an unfettered right to elect whether to terminate the
contract.

Winter Gardens had opened the door of injunctive relief for a contractual licensee
but the conditions for that relief was still unclear. But in Hounslow LBC v.
Twickenham Garden Developments [1971, Chancery Div], Megarry J
summarised the conditions as such:
1) A contractual licence confers licence to enter the land it is immaterial
whether the right to enter is the primary or secondary purpose of the
contract.
2) A contractual licence is not an entity distinct from but rather merely one of
the provisions of the contract.
3) The willingness of a court to grant equitable remedies depend on whether
the licence is specifically enforceable
4) But where licence is not specifically enforceable, a court will also not grant
equitable remedies that aid the breach of the licence.
The scope of remedies available to a court may be very wide. The ECA went as far
as to extend specific performance:

*Verrall v Great Yarmouth BC [1981, ECA]


Facts Licensee, National Front (a fascist political party) hired a
conference hall for two days to run a fascist conference.
Licensor local council discovered it and sought to revoke the
licence.
Decision ECA held in favour of licensee and granted it specific performance.
Reasonin The duration of the licence, no matter how short, is no bar to
g equitable relief.
There is no difference between (i) when the licence is revoked
prior to possession; and (ii) when the licence is revoked after part
performance, i.e. after licensee has occupied premises. Where
there is wrongful revocation, the court will grant equitable relief.
In considering the granting of equitable relief, considerations like
the principle of free speech may be factored in (even though
the cause was very unpleasant).
The scope of equitable relief is not limited to injunctions to
uphold negative covenants but can include granting specific
performance.

Significa This is a case where purported revocation was prior to


nce of occupation.
decision If Licensor really wanted to prevent the conference from
happening and it was merely under an injunction not to revoke
the license, it could not revoke but go engage some other party
to use the premises during the said period.
o As per contract law, Licensor is not saying tt contract
is at an end, but just makes himself unavailable for
performance.
The effect of specific performance is that it forces the Licensor to
be available for performance.

The SINGAPORE POSITION:

* Tan Hin Leong v Lee Teck Im [2001, SGHC and affirmed by SGCA]
Facts Father owned property in Sgp and transferred prop to Son by way
of gift by deed. S covenanted to allow Fs wife to remain in the
premises for the rest of her life (this covenant being in a deed as
well).
The W had to keep the premises in proper repair and had to pay
$12 per annum as rent and she was obliged to pay the tele and
utilities bills.
But as soon as F dies, the S tries to revoke the agreement and
take over the premises.
Decision HELD tt M had a contractual and not a bare license and accordingly
it could not be terminated except according to the conditions of the
contract; Affirmed HC decision and entered judgement for licensee
mother.
Reasonin It was not a bare license, but an enforceable contractual license to
g last the lifetime of the mother:
M had a contractual, not bare licence Ss promise was
made in a deed, which evinced serious intention. Further, M
provided consideration rent; keeping premises in repair and
foregoing any right to claim against the Ss title.
Contractual licence cannot be revoked at will
The contractual licence is not revocable at will because there
is an implied irrevocability at will. The implication arises
from the fact that the deed defines the circumstances giving the
right to end the right of occupation. If those circumstances
cannot be established it is to last for the lifetime of the
defendant.
This was an enforceable licence for Ms lifetime In land
law, a licence for indefinite period will be terminable at will.
However, this is not the case of a licence for an indefinite and
indeterminate period. It would have been so had the plaintiff not
executed the deed and let the defendant occupy the property
without any specific arrangement. (HC decision at [34].
Rather, the express words of the deed were that the licence was
to "lapse upon her death". These words determined the duration
of the licence and since the parties to the contract clearly
expressed their intentions in the deed, the court would give
effect to such intention. (CA decision at [27])
Significa Upheld the more modern view that a contractual license is not
nce of terminable at wil.
decision

4.2 Effect on Third Parties


A contractual licence is like any contract and has to obey Privity of Contract
and hence is only binding btw the licensor and licensee and not on 3rd Ps (well
established by HL in King v David Allen & Sons, Billposting, Ltd [1916]).
However in a period of judicial vigilantism, Lord Denning departed from this
orthodox view by deeming that a 3rd P purchaser took from a licensor with
notice of the existing license, was bound.

Binions v. Evans [1972, ECA]


- Servant and Wife served for many years Husband died and widow
was left Owners of estate granted her a written licence allowing her
to stay rent-free in a cottage on the grounds provided she kept it
clean.
- Subsequently, the estate was sold to Mr B and his wife. B had actual
notice of the licensee and agreed to honour the promise to the sellers
tt they would not evict the widow.
HELD tt a constructive trust was implied to protect the widow.
- Majority held that widow was a tenant for life under the UK Settled
Land Act.
- (Only Lord Denning held on this) That there was a contractual licence
and since the plaintiffs paid a reduced price in view of the
agreement, a constructive trust was imposed for the defendants
benefit since it would be utterly inequitable for the purchaser to turn
the widow out contrary to the stipulation subject to which he took the
premises.
However judicial stance reverted back to orthodox view with ECA decision in
Ashburn Anstalt v Arnold [1988].
o AFFIRMED tt the general rule is contractual licences are not binding on
3rd P purchasers.
o However, the exception is where circumstances necessitate a
constructive trust to be implied.
For that to happen, simply having notice is insufficient.
Also, the mere fact that land was conveyed subject to a
contractual licence existing is insufficient to impose an
obligation upon a 3rd P.
o The conscience of the 3rd P purchaser must be affected:
This could be where the 3rd P has taken property at a reduced
price; OR
The 3rd party expressly undertook to honour the contract or give
assurance to this effect (where the obligation of conscience has
been acknowledged i.e. in writing, in respect of the relevant
contractual entitlement) OR
The contractual licence is not enforceable against the original
licensor which would suggest that the 3rd P had actually
granted a new licence to the existing licensee.
o (This suggests tt the decision in Binions might have been good afterall;
but Dennings principle was too wide)
PROPRIETARY ESTOPPEL
1. INTRODUCTION
A proprietary estoppels arises where the owner of land permits the
claimant to believe that he has some right in the land the claimant relies
on that belief to his detriment then the owner cannot insist on his strict
legal rights.
The principle behind this doctrine is that of UNCONSCIONABILITY:
o Crabb v. Arun DC [1976]: The basis of this proprietary estoppels
is the interposition of equity. Equity comes into mitigate the
rigours of strict law it will prevent a person from insisting on his
strict legal rightswhen it would be inequitable for him to do
But what exactly would suffice as unconscionable behaviour? classic
tension btw Flexibility and Certainty:
o Taylor Fashions Ltd v. Victoria Trustees Co Ltd [1982, Chancery Div]
I am not at all convinced that it is desirable or possible to lay
down hard and fast rules which seek to dictatethe
considerations which will persuade the court [that a partys action]
is so unconscionable that a court of equity will interfere.
o Cobbe v Yeomans Row Management Ltd [2008, HL] Equitable
estoppel is a flexible doctrine which the court can use, in
appropriate circumstances, to prevent injustice But it is not a
sort of joker or wild card to be used whenever the court
disapproves of the conduct of a litigant who seems to have the law
on his side. Flexible though it is, [it must be] applied in a
disciplined and principled way. Certainty is important in
property transactions. [46], per Lord Walker.

Distinguishing Constructive Trusts from Proprietary Estoppel


As deal with unconscionable behaviour, the requirements are
unsurprisingly similar. However there is a big difference as to the
remedy of the claimant:
o Where a Constructive Trust is created, the claimant obtains an
equitable interest in property;
o Whereas in Proprietary Estoppel the claimant only obtains such
relief as the court may direct in its discretion.

2. ESSENTIAL ELEMENTS OF PROPRIETARY ESTOPPEL


3 identifiable elements of proprietary estoppels:
o Representation
o Reliance
o Unconscionable disadvantage

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