#7132 - Contractual Licences - Property A

Permission to enter onto the land of another (conditions may be attached)

Created expressly or by implication

No consideration / no contract

Revocable at any time for any reason and licensee must leave land within a reasonable time

A contractual right to enter the land of another and to use or occupy it for a particular purpose

Must be a contract with consideration (or by deed)

Can be created by express or implied agreement

Revocation of licence may be breach of contract

No exclusive possession – right to occupy only

Need not be of certain duration

If the licensee breaches the terms of the K, the K can be terminated on normal contractual principles.

Where not in breach the question of revocability is more difficult.

A licence to enter land to exercise a property right over the land or over chattels on the land eg a profit à prendre, easement or a security interest in chattels on the land.

Licence is incidental to an interest and is:

• irrevocable

• enforceable against third parties, and

• assignable to a third party along with the property right to which it is incidental

May be able to get a remedy for wrongful revocation of a contractual licence

Only damages available in CL

Equity may assist if the licensor wishes to stay on the land (ie get specific performance of the contract): in a way this has the effect of the K licence being irrevocable almost as if it is a property interest

Equitable remedies are discretionary and the court will consider the following discretionary factors before awarding

• A court will consider the extent to which the continued supervision of the court would be necessary to fulfil the contract.

• Whether the K requires personal services or continual cooperation where the relationship of trust has broken down

• The mutuality principle states that courts will not decree specific performance in favour of P if it would not also be available to D (so if P’s obligations are not suitable for an order of SP so that SP would be refused to D if he/she applied for SP, SP will also be unavailable for P.

• A court may refuse SP if it would cause hardship to D that would not be caused by damages.

• The behaviour of P will be relevant to the court in deciding whether to award SP: maxim ‘he who comes to equity must come with clean hands’.If P has breached the contract, this will not necessarily preclude an award of SP, especially if the term breached is inessential.

• If P has breached an essential term, an order of SP will be made only in exceptional circumstances, such as where D has contributed to the breach.

• Equitable defence of laches: If P has been...