Licences General
Nature of Licences
A property owner may permit persons to enter his land on such terms as he sees fit. The person with the occupational interest, which depending on the circumstances, may be a freehold or leasehold owner, may generally give or revoke consent to enter and occupy land, as he wishes. In some cases, the nature of his interest (such as a lease) may, by its terms and duration, limit the extent of the rights which he can grant.
A person who enters or remains on land without consent is a trespasser and may be forcibly removed (in some cases). A licence is a consent to enter land. Licences may be express or implied.
They may vary from very temporary, passing consents to long term rights to enter and remain on terms that come close to leases. However, a licence is not a lease because it does not grant the right to exclusive possession of the property.
Informal Licences
A license may be a so-called bare consent, which does not involve any element of contract or consideration. In this case, there would be no remedy or right to compensation if the consent is withdrawn or revoked. The courts have held that a person may not revoke consent to leave a licensee any opportunity to avoid committing trespass.
Persons may enter land with the express or implied consent of the owner. In everyday life, owners give implied consent to enter their property for certain limited purposes.
Businesses give consent to customers and others to enter their business premises.
Householders, for example, an owner generally consents to persons who call to his front door for social purposes but does not generally consent to their entry into the dwelling house. The terms of consent may be limited by a sign or by circumstances such as a locked gate, et cetera.
Contractual Licences
A person may enter land under the terms of a contract. For example, a theatre or cinema may enter a contract to permit a person to watch a performance of a film. The traditional position was that the property owner had the power to revoke his licence to enter. If he does so, this may mean he is in breach of contract and thereby liable to compensate the person who enjoyed the license or consent. However, the court would not restrain him from revoking consent. This traditional approach has been modified in some contexts.
In principle, the courts presume a licence arising under a contract to be revocable. This has an important consequence that in the case of breach of contract, there is only right to compensation. This is for loss directly incurred. In modern times the courts also recognise that there may be loss of rights to amenity or right to enjoy a performance, o other matter, the subject of the contract, such as a holiday or performance.
If consent to be present is revoked, then in principle, the person concerned would become a trespasser and could be forcibly removed from the premises. However, if consent is revoked, the owner may not simply remove and treat the licensee as a trespasser. The consequence is that a right to enter property under a license or consent, which may in proper circumstances be revocable, is revocable only with notice. The consequence is that a right to enter property under a license or consent, which may in proper circumstances be revocable, is revocable only with notice.
Some Licence Types
Some categories of licenses are little more than bare consents to enter property or to do something that would otherwise be a trespass. However, other categories of licence may create longer-term rights and come close to giving the license holder an interest or right in the property that can be asserted against all.
Builders may enter property under a building contract as a licensee. This licence may give them control and even exclusive possession of the property, which may be enforced for so long as the contract prevail.
Other licenses have many of the characteristics of a lease or similar arrangement. A builder may enter property under a building contract as a licensee. This licence may give them control and even exclusive possession of the property, which may be enforced for so long as the contract prevail.
Lease v Licence
There is a critical distinction between a licence and a lease. The key characteristic of a lease is that it is an interest in land and carries the right to exclusive possession. This means the lessee is entitled to exclude all comers. In contrast, a license is a consent to enter land even if irrevocable. The licensee does not have exclusive possession.
A concession, for example, is a licence providing for consent to use part of the floor area in a shop. There is clearly no exclusive possession. Many service office arrangements are categorised in the legal documentation as licenses, although some may come close to being leases in substances.
Formerly it was not possible for a lessee of business premises to waive the Landlord and Tenant Act rights of renewal. This has been changed. Many attempts have been made over the years to categorise arrangements as licences that fall outside the legislation. In practice, a very thin line may exist between lease and license in a borderline case.
The courts hold that if an arrangement is a lease in substance, then its being labelled as a license will not make it otherwise. The courts, therefore, look at the key characteristics of the arrangements, in particular, exclusive possession.
Revocability
A licence may grant the right to occupy and use property in accordance with a contract that will be enforced by the courts. As set out in the chapters on estoppel and constructive trusts, the courts may enforce some such contracts in a way that comes close to a property right.
Where a person has by his or her actions induced another to act to his detriment in reliance, that person may be prohibited from asserting their strict legal rights if it would be unjust and inequitable to do so, in view of detrimental reliance. The courts may prohibit a person from revoking a licence or consent to use property where it would be highly inequitable to do so.
There have been cases where persons who have given up existing benefits or worked on in reliance on an assurance that they will be allowed to live somewhere rent-free, then in exceptional circumstances, where it will be highly inequitable to do so to do otherwise the courts may recognise a license which may not be revocable or may be revocable only on giving sufficient notice so that the termination is not inequitable.
Right of Residence
A right of residence is a type of right which is largely unique to Ireland. It does not create an interest or saleable right in land. Many court judgments have related to rights of residence provided, particularly in home-made wills, especially in relation to farms.
The particular rights created depend on the nature of the document concerned. Many such rights of residence are crudely drafted are not thought through in terms of viability and practicality.
Some rights of residence involve the exclusive right to reside in a property for a period, often for life. Other rights of residence may be for more limited purposes, such as the right to use a particular room. Some rights may carry a right of maintenance which is charged on land.
What may appear to be a right of residence may be a life interest in the property, a valuable property interest. It is a question of interpretation as to the extent of the rights created.
In some cases, a right of residence created by will may be interpreted as a right under a trust. In this case, the legal owners may be obliged to give effect of the terms of the trust.
The courts will not find a trust unless there is a clear intention to create one. Therefore, many rights of residence will not be given effect as trusts.
A right of residence may be registered in the Land Registry. A right of residence on registered land, whether a general right or an exclusive right, is deemed to be in the nature of a charge over the property. A right of residence may be asserted by its holder against the registered owner of the property. An award of damages or compensation may be made for interference with it. In some cases, an injunction may be granted to enforce it.