Land includes land covered by water, any house, building or structure whatsoever, and any estate, interest or right in, to or over land or water as defined by the interpretation act 1960, ca4. Section 45 of the conveyancing decree-“land” includes land covered by water, any house, building or structure whatsoever, and any interest or right in, to or over land or water.
Land is made up of corporeal hereditaments and incorporeal hereditaments. The corporeal ones being they ones you can see and the incorporeal one being the one you cannot see and includes rights and interests in land. Therefore land is not only made up of matter.
There are two types of property rights in common law. The one that give right to immediate use and enjoyment and rights against land owned by other people.
Rights giving immediate use to the holder includes fee simple and leasehold.
Fee simple-Its the primary interest in land. It is an estate of a potentially unlimited duration. Walsingham’s case (1573) the court said that he who has a fee simple in land has a time in that land without end, or the land for time without end. The fee simple is capable of infinite transmissivity (capable of transferred as many times as ever). It may be transferred inter vivos or testamentally. He owns of the fee simple may come and go but the estate remains. The owner of this interest does not have any burdens such as rent…. A fee simple would terminate if the holder died without leaving any descendants or blood relations. Where the land was alienated, the fee simple would continue as long as there were heirs of the new tenant
Conditional fee simple-is a fee to which the grantor has attached some conditions upon which the fee depends either for its existence (condition precedent) or its determination (condition subsequent). The fee simple comes to existence upon a condition and unto an end upon a condition. If the condition amounts to the total ban or prohibition or alienation such a condition is void.
Determinable fee simple– is a fee which would determine or come to an end upon the occurrence of a specified event which is likely to occur. If the event is bound to happen then is it not a determinable fee. It is created by words which refer to a time scale such as until, during or while….ex-a grant made to x and his heirs as long as a tree stands-idle v cook.
The difference between a condition subsequent and a determinable fee is that in the determinable fee the determined event is included in the words marking out the limits of the estate and supported by the words like while, during, as long as, until . the condition subsequent is a clause added to the limitation of a complete fee simple which seeks to defeat it and supported by words like provided that, on condition that, nut if, if it happens that. Also, a determinable fee automatically determines when the specified event occurs-newis v lark. A fee simple upon condition merely gives the grantor a right to enter and determine the estate when the event occurs. Until entry is made, the fee simple continues-matthew Manning’s case
A determinable fee is more flexible that a condition subsequent. There are certain restrictions on the condition subsequent-cannot take away the power of alienation, it must not direct against a course of devolution prescribed by law, it must not be illegal, immoral or contrary to public policy
Life interest in land is coextensive with the life of the grantee. The walsingham’s case stated that he who has an estate in land for life has no time in it longer than for his own life. Is it possible to transfer he land while the person is alive? The life interest is transferrable to a stranger to extent of his life (original grantee).
Leasehold estate-land held under a lease for years. They are transferable by assignment and the assignee is liable to the lessor on the covenants in the lease which runs for so long as he holds under the lease. This estate you must have exclusive possession of the land for a definite period of time.
The difference between a freehold and a lease is that in a freehold the duration was fixed but uncertain. The lease hold is of fixed and certain duration
Closely related to estates are tenures-conditions of which land are held
Rights against land owned by other people
Restrictive covenants– this is the situation where the land owners in the area come together an impose restrictions to the land for the benefit of the people. For example commercial activities can be restricted in an area in a bid to preserve the value of the land in that area. They are agreements restricting the use of freehold land which are enforceable not only between the original contracting parties but between assignees of the respective lands. The covenant creates a relationship between two pieces of land one known as the dominant land and the other servient land. A restrictive land may also be created between a landlord and tenant over one land. They are the creation of equity. The dominant land is the land that enjoys the benefits and the servient land carries the burden-tulk v moxhay. Restrictive covenants are negative in character and this means that the promisor is prohibited on doing a specific thing on his land. These covenants do not operate by privity of contract or state.
They take effect under equity and creates only an equitable right in the land. It may therefore be breached by a bona fide purchaser of legal interest for value without notice of the covenant
⦁ It regulates land use
⦁ To ensure good neighborliness
⦁ to uphold and enhance the value of land
Essential features of restrictive covenants
⦁ The covenant must be negative in substance-the words creating the covenant maybe positive but the effect must be negative. Example-a covenant to use a house as a swelling place means that it should not be used for any other purpose. Tulk v moxhay. A useful test is to ask whether the covenant requires the expenditure of money for its performance. If it does then it is positive and that part would be severed. The part in tulk v moxhay to maintain the garden was severed
⦁ A restrictive covenant must be made for the benefit of the land retained by the covenantee- formy v barker.
There are exception to this rule in the case of leases, mortgages a nd a building scheme. In a lease even if there so no land benefiting from the covenant it is still enforced as the lessor’s reversion is sufficient interest to be protected by equity. A mortgagee has an equitable interest in the mortgaged property during the subsistence of the mortgage. The mortgagee can include restrictive covenants designed to protect the value of the security so that if the property needs to be sold the proceeds will be enough to pay off the loan. In a building scheme, where the land is sold in plots according to a plan the vendor may impose restrictions on the purchaser of every plot for the benefit of the estate generally
⦁ The burden of the covenant must have been intended to run with the covenantor’s land. S26 of the conveyancing decree states that a covenant relating to an interest inland of a covenantor shall unless contrary intention is expressed to be deemed to be made by the covenantor on behalf of himself, his successors in title and the persons deriving title from him or them and shall be enforced against successors to the same extent as against the covenantor. For registered land s84 of the land title registration law states that unless the covenant is noted it will not be binding on any proprietor of the land or interest burdened by it other than the party to the agreement.
⦁ The burden of a restrictive covenant runs in equity only-they are generally enforced by an injunction to prevent the breach of the covenant. This is given at the discretion of the court. Also a bona fide purchaser of value with no notice is not bound by the covenant
A restrictive covenant is discharged if the land benefited and the land burdened come into common ownership
Easements
Under the land title registration law s139 an easement” means a right capable of existing as an easement under the rules of common law attached to land and allowing the proprietor of the land or of an interest therein either to use another land in a particular manner or to restrict its use to a particular extent but does not include any right capable of existing as a profit or a restrictive agreement.
An easement may be positive or negative. It is positive when it confers on the dominant owner the right to do something of the servient land. An example is the right of way on the servient land. It is negative when it imposes a restriction of the servient owner on how to use his land. An example is to restrict the owner on building his house in a way so as to not obstruct light. An easement does not confer upon its owner any proprietary interest in the servient land. A legal easement binds the servient tenement and benefits the dominant land.
The owner of the dominant land can enforce this against anyone who occupies the servient land whether an interest was passed on by purchase, lease or gift regardless there was or no notice of the easement. The benefit of the easement passes with the dominant land without it being specifically mentioned-conveyancing decree, 1973(NRCD 175) S13 (2)
The essential features of an easement is found in re ellenborough park. There are certain conditions before a right might qualify as an easement. All these conditions must exist simultaneously.
⦁ There must be dominant and servient tenements. This must be so because an easement is a right in alieno solo (in the soil of another) and requires that there shall be a tenement on which to exercise this right over. There should also be another tenement who is benefiting from this right. A person not owing any land in the area may be given permission to pass over that land but this is not an easement. It would amount to a license. When the dominant tenement is transferred the easement passes with it-leech v schweder.
The dominant should be clearly defined. However it is not fatal if such express mention is omitted as long as it is clear from the deed which land is to be benefited. What if the character of the benefited land changes so that the impact of the burdened land changes? In mcadama homes ltd v robinson, it was held that an easement of drainage granted to the benefit of a bakery could not endure to benefit two large domestic properties later constructed on the same sight. What if the owner of the dominant tenement tries to use the easement to benefit other land he owns?
In peacock v custins, a farmer wanted to use his right of way in order to gain access to a field that was not part of the land expressed to be benefited land in the conveyance creating the easement but which he farmed together with the benefited land. It was held that the right of way could not be used to gain access to extra field. This rule was applied to das v linden mews to prevent the dominant tenement owners from have the right to drive across the private mews to get access to a car parking area which they had acquired at the end of the pews.
However in macepark(whittlebury) ltd v sargeant it was held that access to extra land was acceptable but the right of way could not be used substantially for that purpose and that the access to the extra land was merely ancillary to the proper main use of the easement in relation to the benefited land
⦁ The right must accommodate the dominant tenement. It is important that the easement must not only be connected to the dominant land but that it must also be connected with the normal enjoyment of the land. It must improve the use of the dominant land. The must be a direct nexus between the enjoyment of the land and the user of the dominant land.
In ackroyd v smith it was held that a right of way which was granted for all purposes to the tenant of blackacre and his successors in tile was not an easement. This is because the right of way granted for all purposes was not connected with blackacre. The right of way need not to necessarily lead to the dominant land but the two must be connected in some way. A right that confers a personal advantage is not an easement.
In hill v tupper, the plaintiff was leased a premises on the bank of a canal for purposes of putting pleasure boats on it. It was alleged that the defendant landlord of the adjoining inn had interfered with that right by putting boats on the canal. It was held that what he was given was a personal advantage unconnected with the use of the land leased to him and therefore it was not an easement which could be enforced against others. If the plaintiff had a lease of the canal itself he would have succeeded in trespass. He was a licensee and not entitled to an easement.
⦁ The dominant and servient tenement must not both be owned and possessed by the same person. The essence is that the dominant owner exercises a right over the land of another. A person cannot have an easement over his own land. Such is often called a quasi-easement. It may ripen into an easement if it is sold or possessed by a different person. If the owner of two tenement leases one to the lessee, the lessee cannot acquire an easement against the lessor because in the eyes of the law his tenement is still in the occupation of the lessor.
A person cannot acquire an easement against himself-gayford v moffat. A lessee can however grant an easement to another lessee of a same lessor. The lessee can also acquire an easement against the land of a stranger adjoining the land leased to him. This however enures to the benefit of the freeholder and does not cease with the cessation of the leasehold.
⦁ The right must be capable of forming the subject matter of a grant. Apart from acquisition by statute, every easement must originate from a grant; express, implied or presumed.
Therefore no right has the status of an easement unless it is the subject matter of a grant-harris v de pinna. Therefore the right claimed must be capable of exact description and must have a capable grantor and grantee. A grant that is so vague and indeterminate cannot qualify as an easement. A right over another’s land can ripen into easement if it has been enjoyed for a long time with no interruption. However there is an implication that this right must be capable of being interrupted by the servient owner-webb v bird. A right to the flow of right satisfies the test of certainty because it can be obstructed. The grantee must be a definite identifiable person or body which is authorized by its regulations to acquire an easement. The servient owner should have been lawfully entitled to grant the right claimed to be an easement.
A right which imposes on the servient owner any positive obligation or involves the expenditure of money is not an easement-regis properties co ltd v redman. The only exception is an obligation to build a fence to keep out cattle-lawrence v jenkins. The servient owner is not required to do anything positive to preserve an easement affecting his land-duke of westminster v gould. This is the duty of the dominant owner. However the servient owner is not to do anything to impede the preservation of such right-bond v nottingham corporation.
In crow v wood, the defendant’s sheep trespassed on the plaintiff’s land by passing through the plaintiff’s fence which had not been repaired for a long time. The defendant claimed he was entitled to an easement requiring the plaintiff to maintain the fence. Lord denning held that the right was capable of being granted in law as an easement although strictly speaking it was not an easement as it required the servient owner to spend money.
Acquisition of easements
Easements lie in grants however there are situations where it is felt that the landowner should have an easement even though there’s is no proof of a grant. The common law recognizes situations where although easement is not made mention of a grant could be implied in the instrument conveying the property or could be presumed when here is no instrument at all. Presumption of a grant is known as prescription. There are two ways in common law of acquiring an easement: grant and statute
Acquisition by express grant
Easement is legally a right in land however it is sometimes referred to as an interest in land. Its creation must therefore comply with the provisions of section 1 of the conveyancing decree, 1973 (NRCD 175). In respect of unregistered land the grant should contain these items
⦁ Particulars of the dominant and servient owners
⦁ Nature of the easement
⦁ The period for which it is created, limitations intended to affect its enjoyment
⦁ The land burdened by the easement and the particular part that is burdened
⦁ The land which enjoys the benefit of the easement
⦁ The purpose of the easement
In a registered land section 88(2) of the land title registration law 1986 (PNDCL 152) provides that an instrument creating an easement should specify clearly the nature of the easement, the period for which it is created and the conditions, limitations or restrictions intended to affect its enjoyment, the land burdened by the easement and the particular part that Is burdened, the land which is benefiting and a plan which in the opinion of the and registrar is sufficient to define an easement. Section 88(1) states that an easement is ineffectual unless it is registered as an encumbrance. There is no need for special words in creating an easement. The only thing is that the intention of the parties should be clear.
Express reservation
A reservation is made when the grantor reserves to himself an easement over the land which he disposes of. A reservation is not a grant. However if the instrument conveying the land to the purchaser was done by both parties it would be treated as the granting of the land to the purchased and the re-grant of an easement to the vendor as seen in durham and sunderland railway v walker. Even if the purchaser did not execute the conveyance in cases where it was enforceable an easement would arise in equity. At common law the grant of a deed passes on to the grantee once the grantor has executed it. This is so even when the grantee has not assigned to it and in such situations there is no re-grant and therefore equity would come in to operate in the grantor’s favor.
Acquisition by implied grant/reservation
When the owner grants part of it there are implied interest in appropriate circumstances. There is the implied grant for the grantor especially when there is no other way to get to his land. In this case an express grant would be accompanied by the implied grant. Easements are usually implied in favor of the grantee in situations where the easements are that of necessity, intended easements or easements under the rule in wheeldon v burrows.
Danckwerts J in barry v hasseldine stated that in cases where there is no there is no other access to the land common sense demands that a way of necessity should be implied.
In wong v beaumont property trust, three cellars were let to one blackaby who covenanted to use the premises as popular restaurant and control all smells in accordance to health regulations. The plaintiff bought the remainder of the base and developed the place into a highly successful Chinese restaurant. The smells caused midland bank who was on the floor above to complain and the public health instructor required that the duct be built. The defendant who have been given the land refused to allow the work to be done. Lord denning held that a right of easement of necessity existed. Lord parker of waddington in pwllbach colliery co ltd v woodman said that the law would readily imply the grant or reservation of such easement as many be necessary to give effect to the common intention of the parties to a grant of real property. It is important that this purpose intended by the grant is used in a definite and particular manner.
Intended easements
These are easements necessary for the enjoyment of some right expressly granted. Example the right to use stairs and lifts in a block of flats.
Easements within the rule of wheeldon v burrows
Rights which were exercised by the grantor of the land before he conveyed it to the grantee may be implied in favor of the grantee. These are the quasi-easements, that is they would have been easements had the land not belonged to the grantor.
The rule was laid down by thesigner J in the case of wheeldon v burrows-where the land is granted there should pass to the grantee as easements all quasi-easements over the land retained by the grantor where they were continuous and apparent, or are necessary for the enjoyment of the land granted and had been and were at the time of the grant used by the grantor for the benefit of the part granted.
A continuous easement is one which does not require any personal activity for its enjoyment-right to light. An apparent easement is one which has signs on the servient tenement on careful inspection by a person conversant with the subject matter-building enjoying support. Where a grantor grants simultaneous grants to grantees each grantee would obtain the same easement over the land of the other.
Implied reservation
An easement is normally implied in favor of the grantee and so if the grantor wished to reserve an easement he must do so expressly. In exceptional cases it would be implied in favor of him. These are easements of necessities and intended easements.
Easements of necessity may arise where a grantor grants his land in a way that he is cut of completely from some part of his land so that he has to pass over the grantee’s land to get to his. The grantee may choose the particular way to be used over the land but cannot later change it-bolton v bolton. Also the necessity should exist at the time of the grant and not after. If there is another way for the grantor to get to his land it will not amount to necessity. The fact that the other way is inconvenient is irrelevant so long as it is usable. Sterling LJ stated in union lighterage co v london graving dock that an easement of necessity is one without which the property retained cannot be used at all. A grantor cannot maintain an implied easement of light because his building is useable without the light. However where a landowner grants away the subsoil of his land for mining, an easement of support is implied in his favor
Intended easements
An easement may be needed to carry out the intention of the parties and so it would be implied example when two building support each other and one is granted. An intended easement of support would be implied. The courts do not readily imply an intended easement in favor of the grantor. In re Webb’s lease the court refused to imply an easement of the lessor without express reservation to use the outer wall of the leased premises for advertising.
Acquisition by presumed grant or prescription
This is when an easement is implied by law based on long use. Certain condition must be in place before an easement would be recognized as such-the user must be as of right, the user must be continuous. User as of right means that the claimant must show that he must have used the land as if he was entitled to it. He must also show circumstances which point out that the servient owner has acquiesced this right and thus recognizing it. A user of right a user which is not by force or secret or by permission /license of the servient owner
Forcible user-that is a user whose use of the land is restricted either physically or by legal action by the servient owner. The user cannot rely on this
Secret user– this is when the servient owner is not aware that this right is being enjoyed by the dominant owner. Romer J in lighterage co v london graving dock a prescriptive right is one which is open.
Permissive user– a claimant of an easement by prescription must show that he is not permitted to exercise that right either by tolerance of the servient owner or by license. In gardener v hodgson kingston brewery it was held that the claimant was using the way by permission and not as of right as she was paying 15 shilling annually.
A person has natural rights over his land as well as a natural right of support. This only applies to land in its natural state. This must be claimed as a result of a grant.
Profits a prendre
A profit is defined in s139 of the land title registration law 1986(PNDCL152) as the right to go on the land of another person to take a particular type of object from that land, whether part of the soil or a product of that soil. A right is only a profit if the thing is capable of ownership. However a right to carry water from someone’s land is not a profit but an easement as the water is not part of the soil or its produce and unless store in a receptacle it is not capable of ownership.
They are mainly classified into two. The ones that are enjoyed by a person in common with others sometimes with the inclusion of the servient tenement and the ones that are enjoyed by a person to the exclusion of others.
A profit appurtenant in several or in common which by the acts of the parties actual or presumed is annexed to some nearby dominant tenement and runs with it.
A profit in gross is a profit whether in several or in common exercisable by the owner independently of his ownership of land. That is there is no dominant tenement
A profit can be acquired by statute or by grant. A statute usually makes provision for the payment of annual sums or compensation to the owners of the land concerned.
An express grant has to be in writing as required by s1 of the conveyancing decree in respect of unregistered lands. S85 of the land title registration law provides requirements for granting a profit in respect to registered lands.
An oral grant maybe enforced in equity by specific performance if it is made for valuable consideration and it is supported by sufficient part performance
An implied grant is possible under s13(2) of the conveyancing decree in respect to unregistered lands where there are no words of limitation and s46 and 47 of the land title registration law in respect to registered lands. Acquisition of a profit cannot occur under the rule in wheeldon v burrows because a profit is not continuous and apparent
A profit can be extinguished by release or unity of ownership and possession. A release of profit in favor of the servient owner extinguished the right. If the owner of the dominant tenement becomes owner of the servient tenement the right is extinguished. The right is suspended when the owner of the profit takes a lease of the servient tenement.
Trusts
Under a trust a person holds the nominal title in property not for his own beneficial enjoyment but for the benefit of some other person. The person who holds the legal title is known as the trustee. The person entitled to the benefit is the beneficiary a trustee himself may be one of the beneficiaries. The beneficiary holds an equitable interest in the land.
There are various types of trusts. They are private trusts and public trusts. There are also express trusts, implied trusts and constructive trusts as classified by their creation.
Express private trusts
They are created by a trust instrument or by will. The person who creates It is the settlor. The requirements are that there must be a clear intention to create a trust, the subject matter of the trust must be certain, and the objects or the persons who benefit must be certain.
Certainty of intention-the words used to construe the trust must give a clear intention to create one. It must be unambiguous.
In lamber v lamber a testator gave his widow his estate to be at her disposal in any way she may think fit for the benefit of herself and her family. By her will she had given the property outside her family. It was held that no trust was created in favor of the family and so the property was given to her absolutely.
Certainty of subject matter– this refers to both the property and the interest to be created in the property. It must be certain and capable of ascertainment. Property which is vaguely described cannot be subject matter of a trust. Expressions like bulk of my estate, anything that is left are vague and unacceptable. If the beneficial shares of the property are not certain the trust will fail.
Certainty of objects-the persons for whose benefit the trust created must be defined with certainty. If otherwise the trust will fail. –re vandervell’s trust-lord denning
Form of an express trust
Equity prescribes no form but where the subject matter is land it must be done in writing-s1 and 10 of conveyancing decree. Without writing, no valid interest is created. A will containing the trust must comply with the provisions of the wills act 1971.
The trust must be vested in the trustee in order to constitute a trust. If the trust arises in a will and the executor and the trustee are different persons the executor must vest the trust property in the trustee by executing a vesting instrument. Where the trustee is the owner of the property all he has to do is declare the trust. Where there are two or more trustees, the settlor must convey the property to them as joint tenants.
Implied trusts
Implied trusts are either resulting trusts which arise from presumed unexpressed intention of the settlor or constructive trusts which arise by operation of equity without regard to the intention of the parties.
A resulting trust may arise when purchases property in the name of another. There is a resulting trust I favor of the one who paid unless a gift is intended. If the person paying provides a part of the price he acquires a share in equity proportionate to what he paid. This is done with the prima facie presumption that the person who paid the purchase price did not intend in the absence of express words intend to forgo his beneficial interest. This presumption can be rebutted by showing that it was gift or loan or it was intended as an advancement.
Advancement applies to all cases in which the person providing the purchase money has an equitable obligation to support or make provision for the person whom the property is conveyed. This is usually between spouses, parents and children or a person to whom the purchaser stands in loco parentis. The presumption does not arise when a wife purchases property and puts it in the name of the husband.
Failure of settlement for specified purpose– if a purchase is made for a specified purpose but later that purpose cannot be carried out there is a resulting trust in favor of the one who paid the purchase price-cleaver v mutual reserve fund life association a husband insured his life for the benefit of his wife. His wife killed him. It was held that although a trust arose in favor of the wife she cannot be made to benefit from her crime and so a resulting trust arose in favor of the husband’s estate.
Expenditure of money by one person on the property of another– this is where on person is induced by agreement to spend money on the property of another without intending a loan or gift. If money is spent with the knowledge and consent of the owner a resulting trust arises in favor of the spendor unless the expenditure was by way of a gift.
Where a couple jointly agreed to acquire property a resulting trust arises in favor of them. This is inferred from the circumstances surrounding the time of the acquisition of the property and the initial and subsequent conduct of the parties. One it is clear that the parties agreed to join ownership a resulting trust arises unless there is evidence to the contrary.
Constructive trusts
This arises independently of the intention of the parties but it is imposed because the circumstances demanded that the person holding the tile to the property should be considered as a trustee. It usually arises where a fiduciary relationship exists.
A license according to the land title registration law (PNDCL 152) is a permission given by the proprietor of land or of an interest in lane which allows the licensee to do certain acts in relation to the land which otherwise be a trespass. A license creates no proprietary interest in the land. It can be revoked at the will of the licensor. However there are certain circumstances where the licensee would be protected against the revocation of the license. There are three types of licenses-license coupled with interest in land, contractual license and a bare license.
License coupled with an interest
This is done if the exercise of the license is necessary for the enjoyment of the interest known in law. Example a person having a legal interest in trees on another’s land. However the person need a license to enter on that land as he would need to do that to get to the trees.
This license is irrevocable as long as the interest with which it is couples subsists. In james jones and sons ltd v earl of tankerville, the plaintiffs contracted with the defendant for the growing of certain timber growing on his estate. Under the contract they had a license to enter the defendant’s land and cut out the timber and carry it away. After some time the defendants breached the contract and ousted the plaintiffs of their land. Parker j held that a right to the timber confers a license to the plaintiff to enter the land and it was irrevocable as long as the license is coupled with the interest. A license may be assigned together with an interest. Such a license is irrevocable as well as enforceable against and by future successors of the grantee and grantor only if the interest acquired is validly created and enforceable by law. If the interest is created by an enforceable agreement, equity would intervene.
Contractual license
This is the type granted under a contract between the licensor and the licensee. At common law, a licensee cannot be given protection unless he has a proprietary interest in the land or the chattels on it.
This is the position in Wood v leadbitter-the plaintiff bought a ticket entitling him to enter the grandstand at a racecourse. He was ordered by the defendant to leave the racecourse upon an alleged malpractice. He refused to leave and was physically removed with reasonable force. It was held by Alderson B that he was a mere licensee and that his license was revocable at any time because he did not have an interest in the land.
Contractual licenses are not grants in land. The difference between a contractual license and a bare license is that in the former the licensor would pay damages, that is the consideration paid for the license an eject the licensee.
In winter garden theatre(london) ltd v millennium productions ltd, the right of the parties to a contractual license was dependent on the terms of the contract. The appellants had granted the respondent a license to use and present plays in their theater for six months which could be renewed for an unspecified time and was terminable within a month’s notice. The appellants wished to terminate the license after three years and served a notice to the respondents requesting them to leave. The respondents refused and brought an action against the appellants for a declaration that the license was irrevocable and that even if it was a reasonable period after the service of the notice has not expired. It was held that the license was revocable on giving reasonable notice and that was given.
In thompson v park the plaintiff and the defendant agreed that the plaintiff would allow student of the defendant to occupy a reserved place in the plaintiff’s school for the duration of the war. Differences arose between the two and the defendant was asked to leave along with his students. A term was granted to them because the children did not have a place to go. The plaintiff told the parents of the children that the school was not going to take them the following term. The plaintiff moved and stored the defendant’s furniture. The defendant got into the school and disconnected the school’s water pump. The plaintiff applied for a mandatory injunction for the defendant to leave his school. The injunction was granted. Therefore the only remedy available to a contractual licensee is a claim for damages under contract.
At common law the license was enforceable as between the licensor and licensee. However equity intervened and in the proper cases would enforce it against the licensor’s successor. In the case of errington v errington and woods the deceased promised to give the house to his son and daughter in law if they would pay off the mortgage in installments. The couple did not finish paying before the man died leaving the house behind to his widow. The widow claimed possession of the house. It was held that the daughter in law was entitled to protection against the plaintiff as she was a licensee and that the contract could not be revokes once the defendant has starting performing her part of the contract.
Bare license
This a license not supported by any contract or consideration. At common law It could be revoked at any time upon giving reasonable notice. The notice is to give the licensee time to pack his things and leave. A bare license is automatically revoked by the death of the licensor of the assignment of the land in respect of which the license was given-terunnase v terrunnase
Enforcement and revocation of licenses
A license confers on the licensee no proprietary interest and so the license can be revoked after a reasonable time is given. In quagraine v adams, mensah boise J said that a licensee is entitled to a reasonable time in which to remove himself whether the license was gratuitous or contractual. The same was upheld in canadian pacific railwayco v r where it was said that the plaintiff should have been given reasonable time to have the telegraphy installations removed and also make arrangements that they be placed somewhere else.
In king v davis allen & sons(billposting) ltd the defendant gave the plaintiff a license to post his advertisements on his wall. The defendant leased the property to a company and the company did not allow the plaintiff to paste the advertisement on the walls. In an action against the defendant the defendant was held liable for damages in a breach of contract. Equity takes a different view and treats a contractual license as an equitable interest in land which binds the successor of the licensor and which the licensor may not be allowed in some circumstances to revoke. This is supported by errington v errington v woods.
License estoppel
This is a situation where the licensee has been encouraged by the licensor to act to his detriment usually by expenditure of money on the land in reliance upon a permission given to him by the licensor. If the license is contractual the licensee maybe protected under a doctrine in contract. If the license is gratuitous than there is no protection except the doctrine of estoppel.
In pascoe v turner the plaintiff and the defendant lived together in the plaintiff’s house. The plaintiff bought another house . He told the defendant that the house was hers. In reliance of this the defendant spent her own money on it improving and repairing the house. Later when the relationship ended the plaintiff gave the defendant two months’ notice to determine the license. It was held that the defendant lived in the house as a licensee and so there was no valid declaration of trust but an estoppel operated in her favor.
Also quist v george. The defendant constructed a hospital gifted to his wife b the plaintiff. This was done with the active encouragement by the wife and to the knowledge of the plaintiff. Later the defendant forced the wife out of their matrimonial home. The daughter then reconveyed the title in the land to the plaintiff. The plaintiff sued that despite the hospital on the land, he only had a bare license. It was held that by even though he did not have a contractual license with the wife he developed the land on the faith of the wife’s promise and that in doing that he acquired an equitable interest which estopped the wife and the plaintiff from ascertaining that he only had a bare license.
License and third parties
License usually arise out of contract and are enforceable between the two parties. The common law position is that because it does not create any interest in the land it is not binding on the licensor’s successor. This was supported by clore v theatrical properties ltd. This has however developed into treating contractual license as equitable interests in land where the contract is binding on all persons except a purchaser of the licensor’s interest without notice of the license. This is seen in national provincial bank ltd v hastings car mart ltd
Real property refers to property which the early courts would protect with a real action, an action in rem. A real action is one which the court would order that the property be restored to the owner who has been dispossessed rather than giving the defendant a choice of returning the property or paying damages.
Personal property was protected only by an action in personam, an action against the wrongdoer. The wrongdoer would in general pay damages rather than return the property.