Licences: Traditional Law Revived?
| Author | Stuart Anderson |
| Published date | 01 November 1985 |
| Date | 01 November 1985 |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00873.x |
712
THE
MODERN
LAW
REVIEW
[Vol.
48
‘1985
‘1971’
‘1952
‘1958’
LICENCES:
TRADITIONAL
LAW REVIVED?
WOVEN into the House of Lords’ recent ruling in
Street
v.
Mountford’
that the traditional distinction between a lease and a
licence be restored are two themes which merit further attention.
The traditional understanding is, in counsel’s words, that “an
occupier of land for a term of years at a rent is a tenant providing
the occupier is granted exclusive possession.” Assertions to the
contrary, that exclusive possession is consistent with a licence
where the “nature and quality” of the occupancy is “personal” are
overruled, since, as Lord Templeman said in giving their Lordships’
decision, “If exclusive possession at a rent for a term does not
constitute a tenancy then the distinction between a contractual
tenancy and a contractual licence of land becomes wholly
unidentifiable.” To make the point absolutely clear he adds,
speaking of
Shell-Mex
&
B.P.
v.
Manchester Garages2
that “the
agreement was only ‘personal in its nature’ and created a ‘personal
privilege’ if the agreement did not confer the right to exclusive
possession of the filling station.
No
other test for distinguishing
between a contractual tenancy and a contractual licence appears to
be understandable or workable.”
We could happily conclude, then, that all we need ask is whether
the
right
to exclusive possession has been conferred, judging
whether the various privileges of entry, inspection and repair
reserved by the owner are mere servitudes, or whether, as may
have been the case in
Manchester Garages,
they are
so
extensive as
to amount to shared possession. This may be difficult in any
particular case, but the exercise is no different in kind from that
used to distinguish easement from possession in
Copeland
v.
Green half.
What is left unclear is the relation of facts to rights:
“Exclusive possession is of first importance in considering
whether an occupier is a tenant; exclusive possession is not
decisive because an occupier who enjoys exclusive possession
is not necessarily a tenant. The occupier may be lodger or
service occupier or fall within the other exceptional categories
mentioned by Denning L.J. in
Errington
v.
Errington.”
It is possible, just, that here Lord Templeman is summarising a
passage from
Addiscombe Garden Estates
v.
Crabbe4
which he has
just quoted, but since the content is not quite the same this seems
unlikely. Moreover, the “lodger” theme forms a crucial part of the
judgment since, we are told, it was by failing to ask whether the
occupiers in
Somma
v.
Hazlehursls
were lodgers or tenants that the
2
W.L.R.
877;
see
Nic
Madge,
Legal
Action,
June
1985, 71-79.
1
W.L.R.
612.
Ch.
488.
1
Q.B.
513.
‘19781
1
W.L.R.
1014,
“disapproved” for the headnote writer in
W.L.R.,
“overruled”
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