LEARNER'S LICENCE

DOIhttp://doi.org/10.1111/j.1468-2230.1954.tb02150.x
Publication Date01 May 1954
AuthorJ. D. B. Mitchell
LEARNER’S LICENGE
To simple and bemused travellers brief directions may sometimes
be as useful as detailed descriptions of the ground that has been
traversed and of the way ahead. To such travellers the following
directions are offered by one of their company. Those who prefer
a survey to a signpost must seek
it
elsewhere.’
Introduction
1.
A new interest, if
it
is to be capable as such of affecting
third parties acquiring land, must be an interest in land-a right
in rem.
The mere recognition of the existence
of
a new right does
not necessarily have this consequence.
It
may merely be recognised
as a right
in personam.
Any new right,
if
it
owes
its creation
or
recognition as a right in land to judicial decision,
must be equitable. The categories of legal rights in land are closed
by
L.P.A.,
1925,
s.
1
(1)
(2)
and
(a),
but there is no insuperable
difficulty in the way of the creation by the courts of new equitable
rights in land, though the proviso to
L.
P.
A.,
1925,
s.
4
(1)
does
present some difficulty.
3.
Neither
1
nor
2
above has any application to rights created
by statute, which may fall within the traditional classes,
or
may
be of an anomalous nature. The right of the
statutory tenant
is but one example of the latter type (see
18
below).
4.
The same situation can give rise to rights
in rem
and
to
rights
in personam.
In either case some
or
all of the rights may
be legal,
or
some
or
all
of
them may be equitable.
5.
Just as all the rights arising from one transaction need not
have the same character,
so
they need not be coextensive. The
legal and equitable rights may not be coterminous; the rights
in
rem
need not be of the same duration as the rights
in personam.
Compare: (a) As to options to purchase:
so
far as the option
creates an interest in land
it
is limited by the perpetuity rule,
so
2.
Rights exist in law and in equity.
1
Among the principal articles, which are the sources of this summary, are:
‘‘
What
is
a
Licence?
by
H.
W. R. Wade,
64
L.Q.R.
57;
’‘
Licences and
Third Parties,”
by
H.
W. R. Wade,
68
L.Q.R.
337;
The Deserted Wife’s
Right to Occupy the Matrimonial Home,” by-R.
E.
Megarry,
68
L.Q.R.
379:
’’
Licensed Possessors,”
by
Professor
A.
D.
Hargreaves,
69
L.Q.R.
466;
“A
New Equitable I?,terest in Land,”
by
G. C. Cheshire,
16
M.L.R.
I;
I‘
Interests and clogs, by PSYfessor Glanville Williams,
30
Can.Bar Rev.
1004;
Digesting
tb
Licence,
by
0.
R. Marshall and
E.
H.
Scammell,
31
Can.Bar Rev.
847;
The N,ature and Effect of Licences,”
by
E.
0.
Walford,
11
Conveyalzcez
(N.s.)
183;
Licences and Successors in Title of the Licensor,”
by Professor
F.
R. Crane,
16
Conveyancer
(N.s.)
323;
“Possession and the
Licence to
Occupy
Land,”
by
D.
Pollock,
16
Conveyancez
(N.s.)
436.
In the
presence of this wealth of learned writing little originality can be claimed for
what follows eave comparative brevity.
211

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