Professional Documents
Culture Documents
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.
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.
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must step out when the licence was revoked.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.
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.
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.
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:
* 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