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Licences, A Jonah's Gourd (continued)†
Published online by Cambridge University Press: 16 January 2009
Extract
Licence or lease?
As formerly a party, who might now find a remedy as a licensee, was left without a remedy because the only resource then known to his counsel was to force the admission of his right into the category of easements, so now, in the light of our present knowledge, a person may, as in Errington v. Errington, achieve in the character of licensee an object which eluded him as long as he took steps in the wrong direction by asserting an abortive title as lessee. The question, whether an interest is a licence or a lease, is most important, and without some examination of the older cases the modern cases cannot be understood. The oldest case appears to be Hall v. Seabright. X sued Y for trespass to his house; Y pleaded that X gave him a licence to occupy until midsummer if he so wished. But the court seems to have been of opinion that the defendant must have had a lease or nothing, and there is no such thing as a lease whose existence depends on the will of one party. Professor Hargreaves cites this case as authority for the familiar proposition, recited at the beginning of this article, that “parties cannot by their mere intention vary the legal consequences of their own acts.” The moral would seem to be that even an abortive lease cannot be interpreted as a licence. He maintains that it was not until Errington v. Errington that a person admittedly in exclusive possession of land was denied a legal or equitable title to the land itself, and relegated to the position of licensee, which was elevated for his protection to give him advantages as good as those he would have enjoyed had such a title been attributed to him.
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References
1 Hill v. Tupper (1863) 2 H. & C. 121, ante, [1954] C.L.J. 201, 203.
2 [1952] 1 K.B. 290.
3 (1669) 2 Keb. 561.
4 69 L.Q.R. 466, 470.
5 [1952] 1 K.B. 290.
6 (1841) 8 M. & W. 118.
7 69 L.Q.R. 466.
8 Had it been completed, the purchaser would have had an equitable estate in the land, which, since 1925, would have been registrable as an estate contract.
9 (1847) 10 Q.B. 486.
10 (1863) 13 C.B.(N.S.) 753.
11 [1895] 2 Ir.R. 359. The court distinguished Doe d. Dayman v. Moore (1846) 9 Q.B. 555, where an actual tenancy was found to exist. W let a house to X, his daughter, and Y, her husband, and then devised it to X for life, with remainder to Z. X and Y occupied for 43 years, when X died, and Z sought to eject Y, attributing X's possession simply to the devise and to the receipt of an annuity charged on other land. But it was held that X and Y had completed a parliamentary title 21 years (20 + 1 year) after the beginning of their tenancy at will.
12 The report is silent as regards rates.
13 Lightwood, Possession of Land, 181.
14 (1837) 2 M. & W. 911; see also Darby, and Bosanquet, , Limitation of Actions, 275.Google Scholar
15 Reduced to 12 years by the Real Property Limitation Act, 1874.
16 [1899] 1 Q.B. 486.
17 See Allen v. England (1862) 3 F. & F. 49.
18 Holdsworth, , History of English Law, Vol. VII, 78–80Google Scholar; Lightwood, op. cit., 181 et seq.
19 [1952] 1 K.B. 290.
20 [1899] 1 Q.B. 486.
21 69 L.Q.R. 466, 481.
22 [1952] 1 K.B. 290, 296.
23 [1948] A.C. 173.
24 [1948] 2 All E.R. 133; ante, [1954] C.L.J. 201, 210.
25 [1952] 1 All E.R. 1199.
26 69 L.Q.K. 466, 482.
27 Ante, n. 18.
28 [1895] 2 Ir.R. 359.
29 [1899] 1 Q.B. 486, 490.
30 [1951] 1 K.B. 149.
31 [1951] 2 K.B. 496.
32 [1951] 1 K.B. 149. The same conclusion, that a lease had been superseded by a licence, was reached in Murray Bull and Co. v. Murray [1953] 1 Q.B. 211. where a director, tenant under a service agreement of his employer's house, held over after the termination of the lease.
33 See articles by Mr. R. E. Megarry in 67 L.Q.R. 505 and 68 L.Q.R. 379, the latter of which shows that many problems may arise which must catch the courts unprepared, and that the whole of the law on the subject is in an uncertain and unsatisfactory state, especially where the rights and obligations of third parties are involved.
34 The husband cannot impose on her conditions which purport to qualify it, for there is no consideration for her acceptance of them: Street v. Denham [1954] 1 W.L.R. 624.
35 [1952] 1 K.B. 290; see 69 L.Q.R. 466.
36 [1953] 1 Q.B. 762. The wife may lose her licence by the acceptance of alternative accommodation, provided that she is assured as to her beneficial ownership of it: Street v. Denham [1954] 1 W.L.R. 624.
37 [1948] A.C. 173; see [1954] C.L.J. 201, 214.
38 Salmond on Torts, 11th ed., 77. Goddard L.J. expressed a strong opinion that this rule must preclude him from bringing any action against her for the recovery of land, in the unsatisfactory case of Bramwell v. Bramwell [1942] 1 K.B. 370, which appears to stand alone in allowing a husband to eject a wife without recourse to s. 17 of the Married Women's Property Act, 1882. Mr. Megarry (68 L.Q.R. 379) cites Doe d. Merigan v. Daly (1846) 8 Q.B. 934, but that decision, which he rightly calls “cynical,” turns entirely on the old procedure in ejectment; the husband was allowed to do, as lessor of the plaintiff, what he could not do in his own character. Goddard L.J.'s doubts in Bramwell v. Bramwell are amply justified by Pargiter v. Pargiter [1946] 1 All E.R. 570; the husband had left the wife and children in the house; his evidence showed that he made her a weekly allowance to look after the children; so the court must consider whether the arrangement was a bare licence or coupled with a condition, and whether it had been validly revoked; the husband failed, but could still proceed under s. 17.
39 Hutchinson v. Hutchinson [1947] 2 All E.R. 792.
40 Stewart v. Stewart [1948] 1 K.B. 507; the Court of Appeal would not interfere with the order of the county court judge, though it might result in the ejectment of the wife while divorce proceedings were pending, and though it did not provide for the husband assuring her alternative accommodation. Since the hearing in the county court, the husband had actually secured his divorce; so the questions had become largely academic. See Hanbury, op. cit. 629.
41 [1952] 2 Q.B. 489.
42 See per Denning L.J. at p. 492.
43 [1951] 2 K.B. 596.
44 [1953] 1 Q.B. 762; ante, [1954] C.L.J. 201, 203.
45 (1948) 64 T.L.R. 596.
46 As to the extension of this protection to her during the subsistence of the marriage, see s. 12 (1) (g), and Marcroft Wagons v. Smith [1951] 2 K.B. 496.
47 Torts, 11th ed., 281. The second sentence is approved by Denning L.J. in Bendall v. McWhirler [1952] 2 Q.B. 466, 481.
48 (1863) 2 H. & C. 121.
49 (1856) 1 H. & N. 37. By a lease not under seal, W and X, trustees for themselves and other owners of a theatre, let it to Y for three years, reserving to themselves and the other owners free liberty of admission to the theatre. It was held that the agreement did not bind Z, lessee from Y for two nights.
50 (1805) 6 East 602; ante, [1954] C.L.J. 201, 205.
51 (1856) 25 L.J.Ch. 883; (1856) 22 Beav. 596: (1857) 24 Beav. 33.
52 (1848) 2 Ph. 774.
53 68 L.Q.R. 337.
54 [1916] 2 A.C. 54.
55 [1952] 2 Q.B. 466, 482.
56 [1915] 2 L.R. 213; Dixon J. pointed out in Cowell v. Rosehill Race Course Co. (1937) 56 C.L.R. 605, 637, that the approval was only in the Irish court.
57 [1952] 1 K.B. 290.
58 [1936] 3 All E.R. 483.
59 [1926] A.C. 108.
60 [1948] A.C. 173.
61 See per Denning L.J. in Bendall v. McWhirter [1952] 2 Q.B. 466, 482; Professor Glanville Williams in Can. B.R. (1952) 1004, 1008.
62 [1942] 2 All E.R. 674.
63 It was decided two years later in Lace v. Chantler [1944] K.B. 368, that a lease for the duration of the war, being an uncertain period, was void; to counteract this decision the Validation of War-Time Leases Act, 1944, was passed: see also Hanbury in 66 L.Q.R. 318, 337.
64 [1895] 2 Ir.R. 359; Hargreaves in 69 L.Q.R. 466.
65 [1951] 2 K.B. 596.
66 Current Legal Problems, Vol. 5, p. 4.
67 [1952] 1 K.B. 290.
68 [1951] 2 K.B. 596.
69 This would appear to be the view of Lynskey J. in Street v. Denham [1954] 1 W.L.R. 624, who said that he would have liked to follow it, had he not been precluded from doing so by contrary and binding authority.
70 [1952] 2 Q.B. 466. Megarry (68 L.Q.R. 379, 381) argues that the Court of Appeal could not protect the right of a deserted wife against a third party consistently with its own decision in Taylor v. McHale (1948), but citation of the Estates Gazette, where alone it was reported, was deprecated by the Court of Appeal in Birtwistle v. Tweedale [1954] 1 W.L.R. 190, on the ground that those reports are not by a barrister. But see Megarry's spirited rejoinder (70 L.Q.R. 246. 247).
71 [1952] 2 All E.R. 233.
72 Ante, note 46.
73 [1944] K.B. 309. The husband could not here be dispossessed, for he was not made a party to the action, which was against the wife for trespass. Lord Greene suggested that all the landlord need now do was to bring a fresh action against the husband, but this was only a dictum, and surely wrong, as it would stultify the statutory protection of the wife.
74 [1950] 1 K.B. 311. Cf. Middleton v. Baldock [1950] 1 K.B. 657. The head-note says that it distinguishes Old Gate Estates v. Alexander [1950] 1 K.B. 311; really it follows it, but relegates to dicta the remarks of Lord Greene in Brown v. Draper [1944] K.B. 309, 315; see ante, n. 73. The husband was acting in collusion with the landlord so as to get rid of the wife; Jenkins, L.J. said (at p. 670), “The tenant cannot waive the statutory protection by agreement.”Google Scholar
75 See Inst. 2. 1, 44.
76 [1953] 1 W.L.R. 1460. Upjohn J. (at p. 1465) put it that Bendall v. McWhirter [1952] 2 Q.B. 466, does not give the wife an “irrevocable licence which attaches at the moment of entering into the matrimonial home.”
77 [1954] 1 W.L.R. 321. Professor Glanville Williams (Can. B.R. (1952) 1004, 1014) foresaw that difficult questions might arise as to priorities; the question in these cases was solved on the familiar principle of qui prior est tempore potior est jure.
78 [1953] 1 Q.B. 762.
79 [1952] 2 Q.B. 735.
80 [1953] 2 Q.B. 425.
81 Land Charges Act. 1925, s. 10 (1).
82 Hanbury, op. cit., 470.
83 Land Charges Act. 1925. s. 10 (1).
84 See C. V. Davidge in 53 L.Q.R. 259; Cross, G. in The Bell Yard, May, 1935, p. 18.Google Scholar
85 [1948] 1 K.B. 50. It is worth while referring to the sequel to this case. Borough of Lewisham v. Roberls [1949] 2 K.B. 609. The authority released the ground floor, but the owner abused its kindness by refusing access to the part remaining under requisition; then the authority re-requisitioned, intending to allow the owner to occupy the ground floor as licensee, but as he continued to be difficult the authority terminated the licence and required him to deliver up the whole house; it was held entitled to do so.
86 See Minister of Agriculture v. Matthews [1950] 1 K.B. 148.
87 Canadian Bar Review (1952) 1004, 1013.
88 Bendall v. McWhirter [1952] 2 Q.B. 466, 483; that he had arrived at the same view four years earlier may be deduced from his judgment in Lewisham Borough Council v. Maloney [1948] 1 K.B. 50.
89 (1853) 9 Moo. P.C. 18. See also Daniels v. Davison (1809) 16 Ves. 249; Reeves v. Pope [1914] 2 K.B. 284: Smith v. Jones [1954] 1 W.L.R. 1089.
90 [1944] K.B. 209.
91 [1951] 1 All E.R. 901.
92 As they do to restrictive covenants between landlord and tenant, which are not capable of registration.
93 [1948] 1 K.B. 50.
94 It is arguable, however, that the right should be regarded as legal, not equitable.