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Annotated
version
QUESTION:
In
this
case,
one
is
driven
to
the
conclusion
that
the
badges
of
a
tenancy
were
present
[but]whatever
badges
[this]
agreement
displayed,
the
parties
intention
cannot
have
been
to
create
a
tenancy
of
a
flat
which
everyone
knew
formed
part
of
a
block
awaiting
development.
Per
Sir
Brian
Neil
in
Bruton
v
London
Housing
Trust
(1997)
Discuss
to
what
extent
this
statement
represents
the
approach
of
the
courts
in
lease/licence
cases.
ANSWERS:
Sarah
Low
to
mid
-
first
class
Sir
Brian
Neils
reference
to
the
badges
of
a
tenancy
is
a
reference
to
the
1984
case
of
Street
v
Mountford,
in
which
the
HL
discussed
at
length
the
differences
between
tenancies
and
mere
licences,
and
explained
what
was
necessary
to
create
a
tenancy,
and
redefined
the
test
to
be
applied
in
order
to
determine
what
a
given
occupation
was.
Sir
Brian
was
giving
judgment
in
the
CA
in
Bruton,
but
that
decision
was
then
reversed
by
the
HL.
It
is
important
to
be
able
to
make
the
distinction
accurately
as
a
licence
is
a
purely
personal
right,
usually
revocable
at
will.
However,
a
tenancy
is
a
proprietary
right,
which
creates
rights
good
against
the
world
and
is
protected
by
a
great
deal
of
statutory
material
from
premature
termination.
The
proprietary
nature
of
a
tenancy
is
reflected
in
the
legislation.
Given
that
it
was
not
uncommon
for
landlords
to
try
to
evade
the
legislation
which
protects
tenants
by,
for
example,
labelling
the
occupancy
agreement
a
licence,
the
HL
felt
it
necessary
in
Street
to
undertake
the
redefinition
of
the
test.
They
held
that
essential
elements,
or
badges
of
a
tenancy
were
exclusive
possession,
for
a
rent,
for
a
term.
They
reasserted
the
primacy
of
exclusive
possession
(EP)
and
emphasized
that
the
substance
of
an
agreement
was
to
be
the
determining
factor
not
what
it
was
entitled.
Previously,
the
test
to
determine
whether
or
not
a
tenancy
existed
was
whether
it
was
the
intention
of
the
Lpt/18/11/12/Property Law/
2
parties
as
stated
in
the
document.
But
given
the
background
of
the
unscrupulous
landlord
seeking
unlawfully
to
evict
the
occupier
and
get
around
the
1977
Rent
Act,
the
HL
looked
at
what
the
parties
had
actually
created
rather
than
what
they
thought
or
intended
to
create.
However,
in
the
case
of
Westminster
County
Council
v
Clarke,
the
court
recognised
that
although
Mr.
Clarke
had
exclusive
occupation
of
his
room,
the
Councils
intention
was
important
it
had
obviously
not
intended
to
give
him
EP
and
therefore
a
tenancy
because
that
would
have
given
Mr
Clarke
security
of
tenure,
and
consequently
the
Council
would
not
have
been
able
to
fulfil
its
statutory
duty
to
other
homeless
people
to
give
them
temporary
accommodation.
Sir
Brian
therefore
is
perhaps
not
wrong
to
look
at
the
circumstances
in
the
light
of
the
parties
intentions
in
determining
whether
a
tenancy
had
arisen.
Moreover,
if
the
reason
for
their
Lordships
redefinition
of
the
test
into
one
merely
of
EP
was
to
frustrate
the
sham
devices,
that
purpose
was
fulfilled
by
the
background
investigation
by
Sir
Brian,
showing
that
no
sham
devices
were
at
work.
Therefore,
an
honest
intention to create a licence ought to create a licence, but the House of Lords in Bruton
for
example,
where
an
occupier
of
premises
is
there
merely
because
of
the
freeholders
generosity
(Hislop
v
Burns)
or
where
he
is
there
because
it
enables
him
to
perform
his
job
better
(Thompson
v
Phillips),
then
the
parties
relationship
is
not
one
of
landlord
and
tenant
but
one
of
parties
who
do
not
intend
to
create
legal
relations,
or
of
employer
and
employee.
In
these
cases,
the
fact
of
exclusive
possession
is
not
relevant.
This
can
also
apply
where
the
parties
are
in
a
beneficiary/trustee
relationship.
This
was
the
case
in
Gray
v
Taylor,
where
the
parties
were
beneficiary
and
trustee
of
a
charity
almshouse;
once
again,
Sir
Brian
may
have
been
justified
in
looking
to
the
parties
intentions
in
Bruton
and
declaring
these
intentions
relevant
for
these
purposes
given
that
London
&
Quadrant
were
a
housing
charity.
The
subsequent
judgement
ruled
that
again
this
was
not
relevant.
The
mere
fact
of
EP
was
to
have
primacy
and
prevail
over
honest
intentions,
regardless
of
any
other
relationship
which
the
occupancy
could
have
been
referable
to.
In
Bruton,
the
HL
interpreted
the
idea
of
intention
differently.
As
Lord
Jauncey
said,
the
classification
of
the
agreement
as
a
lease
does
not
depend
upon
any
intention
additional
to
Lpt/18/11/12/Property Law/
3
that
expressed
in
the
choice
of
terms
but
is
simply
a
question
of
characterising
the
terms
which
the
parties
have
agreed.
In
other
words,
it
was
not
the
real
intention
that
mattered
but
the
intention
that
an
objective
person
could
infer
from
the
agreement,
and
in
the
Courts
view,
such
an
intention
was
to
grant
EP.
This
is
contrary
to
the
approach
in
Antoniades,
where
it
was
shown
very
clearly
that
surrounding
circumstances
are
relevant
to
establish
the
nature
of
an
occupancy
The
case
of
Ultratemp
involved
a
clear
case
of
EP.
Occupants
of
a
hotel
room
had
the
elements
of
control
required
for
EP
to
exist
(Addiscombe
Garden
Estate
v
Crabb),
and
although
the
owner
possessed
a
key
to
the
room,
in
fact
he
never
used
it,
and
just
because
a
freeholder
retains
a
key,
if
it
is
only
retained
for
the
purposes
of
emergency
entry
(Aslan
v
Murphy),
then
it
does
not
negative
the
control
element
required
for
EP.
So
the
Ultratemp
occupants
appeared
to
have
EP
on
the
facts,
and
on
a
strict
application
of
the
Street
test,
as
happened
in
the
HL
in
Bruton,
they
also
should
have
been
granted
a
tenancy.
But
it
was
held
that
the
ability
of
the
occupants
to
avail
themselves
of
the
room
services
which
are
normally
a
badge
of
a
licence
(Marchant
v
Charters),
meant
that
a
licence
existed,
even
if
the
occupants
chose
not
to
avail
themselves
of
the
services.
So,
even
though
the
fact
of
EP
was
defined
as
the
test
in
Street
v
Mountford,
and
its
application
can
lead
to
absurd
results
when
applied
unthinkingly
and
without
regard
to
the
underlying
reason
of
its
existence
(ie
detection
of
sham
devices),
it
is
not
consistently
applied.
It
is
submitted
that
Sir
Brians
reference
to
the
intentions
of
the
parties
was
meant
to
include
the
wider
intentions
as
reflected
in
the
surrounding
circumstances,
and
that
this
is
the
better
approach.
Geoffrey
High
upper-second
This
quotation
is
taken
from
the
Court
of
Appeal
decision
in
Bruton
v
London
Housing
Trust,
a
case
involving
the
distinction
between
leases
and
licences.
This
distinction
is
important
because
a
lease
is
covered
by
much
legislation
and
leaseholders
receive
statutory
protection
that
licensees
do
not
benefit
from.
Also,
a
lease
creates
a
right
in
rem,
a
right
in
a
thing,
but
a
licence,
merely
creates
a
right
in
personam,
against
the
person
who
gave
the
Lpt/18/11/12/Property Law/
4
licence.
Furthermore,
a
licence
is
revocable
at
all
times
by
either
side,
a
lease
is
not,
and
a
lease
will
contain
terms
implied
by
statute,
a
licence
will
not.
In
the
Bruton
case,
a
person
had
been
given
a
right
to
occupy
a
room
in
a
property.
The
property
was
owned
by
the
housing
authority
who
allowed
a
charity
to
use
it
to
house
homeless
people
temporarily.
The
charity
had
no
legal
right
in
the
property
and
thus
no
right
to
grant
leases.
They
did
however
grant
this
person
a
right
to
stay
in
a
room,
believing
that
what
they
had
created
was
a
licence.
The
Court
of
Appeal
held
that
the
right
was
indeed
a
licence
revocable
at
any
time.
But,
the
House
of
Lords
held
that,
regardless
of
what
the
charity
had
intended
to
create,
and
regardless
of
what
they
believed
they
had
created,
the
agreement
had
the
essential
elements
of
a
lease
and
therefore
it
was
a
lease,
enforceable
by
the
parties.
In
the
quotation,
Sir
Neil
[sic]
comments
that
regardless
of
what
it
appeared
had
been
created,
the
intention
cannot
have
been
to
create
a
lease.
He
seems
to
suggest
that
the
parties
intention
should
be
given
effect;
however,
the
courts
have
made
it
very
clear
in
recent
years
that
the
intention
of
the
parties
cannot
be
used
to
distinguish
between
leases
and
licences.
The
badges
of
a
tenancy
(a
lease)
referred
to
are
exclusive
possession,
the
payment
of
rent
and
a
fixed
term.
The
most
important
of
these
badges
used
to
distinguish
between
leases
and
licences
is
exclusive
possession.
The
case
of
Street
v
Mountford
made
it
clear
in
1985
that
exclusive
possession
was
the
essential
requirement,
affirming
the
old
case
of
Lynes
v
Snaith
(1899)
and
rebutting
the
idea
of
a
possessory
licence
that
had
been
established
in
the
intervening
years.
In
Street
v
Mountford
the
court
memorably
said
that
if
a
person
manufactures
a
five-pronged
instrument
for
manual
digging
he
has
made
a
fork,
regardless
of
the
fact
the
he
maintains
and
believes
that
he
has
made
a
spade.
Thus,
the
name
given
to
a
document,
be
it
licence
or
lease,
is
not
conclusive.
This
was
confirmed
in
a
commercial
context
in
Addiscombe
Garden
Estate
v
Crabtree.
The
court
showed
in
Aslan
v
Murphy
that
it
was
willing
to
look
behind
a
document
and
detect
sham
devices
intended
to
give
the
appearance
of
a
licence
to
something
which
was
in
fact
a
lease.
Here,
a
totally
unrealistic
clause
requiring
the
tenant
to
keep
out
of
the
premises
from
10.30
am
til
noon
each
day
was
held
to
be
a
sham.
Further,
the
fact
that
the
landlord
kept
a
set
of
keys
to
the
premises
was
irrelevant,
since
Lpt/18/11/12/Property Law/
5
the
purpose
for
which
he
kept
them
was
not
unrestricted
access
but
for
access
in
times
of
emergency.
Merchant
v
Charters
was
an
example
of
a
true
licence,
where
the
landlady
provided
cleaning
each
day
and
linen
once
a
week.
In
order
to
provide
the
services,
she
required
unrestricted
access,
and
the
occupant
of
the
premises
therefore
did
not
have
exclusive
possession
and
so
was
a
licensee.
It
was
also
made
clear
in
Collinson
that
a
rejection
of
such
services
could
not
turn
a
licence
into
a
lease.
Thus
the
true
nature
of
the
agreement
and
the
badges
it
displays
are
essential
in
determining
whether
it
is
a
lease
or
a
licence.
The
Court
was
willing
to
examine
separate
documents
together
to
determine
whether
they
are
independent
or
interdependent,
in
establishing
whether
exclusive
possession
existed.
In
Antoniades
v
Villiers,
a
man
and
woman
applied
together
for
a
one-bedroom
flat
and
were
required
to
sign
separate,
identical
agreements
headed
licence
and
requiring
each
to
share
the
flat
with
such
person
as
the
landlord
might
from
time
to
time
nominate.
This
was
held
to
be
a
device
whose
sole
purpose
was
to
circumvent
by
stealth
the
statutory
protection
afforded
tenants
under
the
Rent
Act
1977.
The
documents
were
held
to
be
interdependent
and
the
man
and
woman
together
had
exclusive
possession
and
therefore
a
tenancy.
In
AG
Securities
v
Vaughan,
a
shared
house
in
which
people
came
and
went,
each
having
a
room,
but
the
group
as
a
whole
sharing
neither
unities
of
time,
title
nor
interest,
the
documents
were
held
properly
to
be
licences,
as
none
of
the
occupants
had
exclusive
possession
and
the
documents
were
not
interdependent.
In
Mikeover
v
Brady,
where
two
people
applied
for
a
flat
together
but
each
covenanted
to
pay
only
half
the
rent,
and
there
were
two
bedrooms,
and
the
documents
stated
that
each
were
required
to
share
the
flat
with
such
persons
as
the
landlord
had
already
nominated,
the
documents
were
licences.
Thus
the
court
has
been
willing
to
look
at
the
nature
of
the
document
to
determine
whether
it
is
a
lease
or
a
licence,
and
this
makes
the
decision
in
Bruton
more
confusing
in
that
the
document
plainly
established
that
the
charity
was
unable,
at
law,
to
grant
a
tenancy,
and
thus
to
establish
one
as
a
matter
of
fact
was
to
ignore
the
realities
of
the
situation,
but
in
the
cases
above
the
courts
have
recognised
the
realities
of
the
situation
that
the
couple
in
Antoniades
would
not
be
made
to
share
with
strangers,
that
the
tenant
in
Aslan
was
not
expected
to
vacate
his
room
each
day.
Lpt/18/11/12/Property Law/
6
In
other
cases
the
courts
have
been
willing
to
recognise
that
there
was
no
intention
to
grant
exclusive
possession.
In
Westminster
City
Council
v
Clarke
(a
case
with
facts
similar
to
those
in
Bruton),
the
court
recognised
that
the
council
had
no
intention
of
granting
Mr
Clarke
exclusive
possession
of
a
room,
but
reserved
the
right
to
move
him
if
necessary.
In
Dresden
v
Collins
the
court
recognised
that
an
agreement
allowing
one
man
to
store
equipment
in
anothers
premises
was
a
licence
the
premises
owner
reserved
the
right
to
move
the
equipment
to
other
premises
he
owned
if
necessary.
Again,
where
no
intention
to
grant
exclusive
possession
existed,
no
tenancy
existed.
In
Hislop
v
Burns
the
court
held
that
a
right
to
use
property
was
extended
to
a
family
as
a
gesture
of
generosity,
with
no
intention
to
create
property
rights
at
all.
In
Gray
v
Taylor
the
right
to
use
a
room
as
an
almshouse
was
referable
to
receiving
a
benefit
under
a
trust,
and
not
to
a
tenancy,
thus
no
tenancy
ever
existed.
In
Thompson
(Funeral
Furnishings)
v
Phillips,
the
right
to
stay
in
a
property
was
extended
to
aid
an
employee
to
better
perform
his
job
and
thus
was
referable
to
his
employment,
not
to
a
tenancy.
It
was
recognised
in
Facchinin
v
Bryson
that
in
such
a
case
as
Thompson,
the
right
of
occupation
must
be
extended
not
merely
as
a
prerequisite
of
the
job,
but
in
order
to
enable
the
employee
to
do
the
job
better.
If
it
is
merely
a
benefit
in
kind,
it
cannot
give
rise
to
a
lease.
So
it
is
clear
that
the
courts
look
behind
labels
on
agreements
allowing
occupation,
and
examine
the
substance
to
determine
the
nature
of
the
agreement.
What
is
equally
clear
is
that
in
Bruton
the
decision
that
what
had
been
created
was
a
lease
was
peculiar,
in
that
the
defendant
was
only
able
to
grant
a
licence.
Any
other
right
was
unsuitable
in
the
circumstances,
and
usually
it
is
the
circumstances
as
a
whole
which
dictate
the
nature
of
the
right.
Laura
Low
upper-second
The
question
refers
to
the
problem
of
distinguishing
a
lease
from
a
licence.
The
quote
asks
whether
the
badges
of
a
tenancy
(ie
exclusive
possession
for
a
term
at
a
rent)
are
all
that
is
Lpt/18/11/12/Property Law/
7
In
Street
v
Mountford,
the
Landlord
had
signed
an
agreement
that
allowed
him
into
the
flat
to
carry
out
repairs
and
to
do
other
duties
normally
associated
with
landlords.
He
tried
to
argue
that
because
he
could
enter
the
flat
Mrs
Mountford
did
not
have
exclusive
possession
since
she
could
not
exclude
him.
However,
Lord
Templeman
held
that
because
the
landlord
had
reserved
a
special
right
in
the
agreement
to
enter
to
carry
out
his
duties
that
meant
that
he
did
not
have
a
general
right
to
enter
as
he
wished
for
whatever
purpose
and
so
Mrs
Mountford
did
have
exclusive
possession.
The
court
held
that
if
a
landlord
agreed
to
give
exclusive
possession
for
a
certain
term
and
charged
rent,
then
he
had
created
a
lease
despite
the
fact
that
it
was
called
a
licence
on
the
face
of
the
document.
Landlords
had
been
trying
to
avoid
the
effect
of
the
Rent
Act
1977,
which
gave
protection
to
tenants,
by
denying
that
they
were
in
fact
tenants.
But
the
court
in
Street
held
that
no
matter
what
the
document
called
the
interest,
if
the
badges
of
a
tenancy
were
present
then
the
tenant
had
a
lease.
In
Antoniades
v
Villiers
the
court
found
that
where
two
people
shared
a
one-room
flat
they
could
also
be
considered
to
have
exclusive
possession
as
joint
tenants
of
a
lease.
In
this
case
the
landlord
had
made
the
couple
sign
identical
'licence'
agreements
saying
that
the
landlord
could
insert
a
thrived
party
of
his
choosing
although
in
reality
he
never
did.
The
court
held
that
this
provision
was
a
'sham'
designed
to
get
around
the
Rent
Act.
In
Aslan
v
Murphy,
the
landlord
required
the
occupier
to
vacate
the
premises
for
an
hour
each
day.
Bt
this
was
also
considered
a
sham,
since
the
landlord
did
not
use
the
time
to
service
the
flat
(like
in
Marchant
v
Charters),
the
only
purpose
was
to
deny
exclusive
possession.
However,
In
Mikeover
v
Brady
there
were
similar
facts
to
Antoniades
but
there
were
two
rooms.
Here
after
one
of
the
occupiers
left,
the
landlord
refused
to
accept
increased
rent
from
the
other
and
the
court
found
that
the
licences
were
in
fact
licences.
However,
even
where
there
is
exclusive
possession
for
a
certain
term
at
a
rent,
there
may
still
not
be
a
lease
if
the
occupation
is
based
on
other
motives.
So
for
example
where
the
owner
allows
a
family
member
to
stay
for
personal
reasons
(Marcroft
Wagons
v
Smith)
or
where
the
occupier
only
has
the
flat
because
it
is
linked
to
his
job
(Facchini
v
Bryon)
there
will
be
a
licence
and
not
a
lease.
Lpt/18/11/12/Property Law/
8
Another
category
where
there
will
be
no
lease
is
where
the
owner
has
a
legitimate
reason
not
to
grant
a
lease
as
in
Westminster
CC
v
Clark.
Here
the
council
gave
licences
to
the
homeless
to
occupy
on
a
temporary
basis.
The
council
argued
that
if
they
gave
leases
which
allowed
the
tenants
to
stay
on
a
permanent
basis
then
they
would
be
in
breach
of
their
statutory
duty
to
house
other
homeless
people
due
to
the
fact
that
they
could
not
get
Mr
Bruton
out.
But
in
the
case
of
Bruton
v
London
QHT,
the
case
in
the
question,
the
HL
applied
Street
despite
the
fact
that
the
London
QHT
(the
Trust)
did
not
even
have
an
estate
in
land
itself
but
only
had
a
licence.
The
facts
were
similar
to
Clark,
but
here
the
court
said
that
if
the
Trust
purported
to
give
exclusive
possession
for
a
term
at
a
rent
then
it
had
created
an
'estoppel
lease'.
What
this
means
is
that
the
Trust
had
to
treat
Mr
Bruton
as
if
he
was
their
tenant
and
so
as
against
the
Trust
he
had
security
of
tenure.
So
the
decision
is
Bruton
is
problematic
because
it
is
not
on
all
fours
with
earlier
decisions.
It
remains
to
be
seen
whether
in
every
case
the
presence
of
exclusive
possession
for
a
term
at
a
rent
will
create
a
lease
even
where
it
was
not
the
intention
of
the
parties.
Neil
Low
2.2
This
question
revolves
around
the
differences
between
a
lease
and
a
licence,
or
better
still,
what
constitutes
a
lease
and
what
constitutes
a
licence.
To
proceed
into
the
problem,
I
will
first
attempt
to
define
what
a
lease
is.
It
is
time
spent
on
land
with
legal
rights
to
the
estate,
and
could
range
from
weeks
to
years.
A
licence
is
permission
to
be
on
land
without
legal
right
to
the
estate.
It
is
important
to
note
that
the
above
definition
is
for
the
purpose
of
answering
the
question.
A
starting
point
of
looking
into
this
problem
will
be
to
look
at
the
case
of
Street
v
Mountford
1985
where
Lord
Templeman
said
that
the
ultimate
test
for
a
lease
is
the
presence
of
exclusive
possession
and
that
the
intentions
of
the
parties
did
not
matter.
The
words
Lpt/18/11/12/Property Law/
9
exclusive
possession
and
control
are
used
interchangeably.
There
are
however
three
exceptions
from
this
general
rule
of
exclusive
possession
which
are
that:
-
intention of the landlord. The leaseholder has got some protection under the Act and that is
The
Court
will
always
look
at
the
agreement
carefully
to
ascertain
where
actually
the
control
really
lies.
If
they
find
that
control
is
in
the
hands
of
the
landlord
it
may
be
considered
as
a
licence,
and
if
the
control
or
exclusive
possession
is
in
the
hands
of
the
occupier,
then
it
could
be
a
lease.
In
the
case
of
AG
Securities
v
Vaughan
1990,
a
four
bedroom
flat
was
given
out
to
four
individuals
who
paid
different
rents,
got
it
at
different
times
and
the
landlord
reserved
the
right
as
to
who
can
stay
in
any
of
the
rooms
if
they
became
vacant.
It
was
held
that
control
was
in
the
lands
of
the
landlord
and
that
it
amounted
to
a
licence.
Conversely
in
the
case
of
Antoniades
v
Villiers
1990
where
the
occupiers
applied
for
a
joint
tenancy,
paid
equal
rents
for
a
one
bedroom
flat,
the
landlord,
although
he
asked
them
to
sign
separate
agreements,
did
not
possess
control
and
therefore
it
was
held
to
be
a
lease
as
Lpt/18/11/12/Property Law/
10
As
mentioned
earlier,
not
in
every
case
will
the
court
look
strictly
on
exclusive
possession.
Where
it
has
never
been
the
intention
of
the
landlords
to
create
a
tenancy,
then
the
court
will
be
willing
to
be
flexible
as
to
the
requirement
of
exclusive
possession.
This
could
be
exemplified
by
situations
with
charity
organisations,
schools,
etc.
Miryam
fail
A
licence
is
a
personal
privilege.
In
common
law
the
licence
is
only
binding
for
the
parties
of
the
contract.
In
common
law
the
licence
is
always
revocable
(Wood
v
Leadbitter).
The
licence
has
to
be
considered
as
a
permission,
for
example,
as
a
permission
to
come
to
my
premises.
If
you
are
invited
to
dinner
by
a
friend
you
have
a
licence.
In
common
law
the
only
exception
regarding
the
revocability
of
the
licence
is
if
it
is
coupled
with
an
interest,
as
for
example
profit
a
prendre.
In
this
case,
the
licence
will
follow
the
interest
and
so
in
some
circumstances
it
will
be
revocable.
In
equity
there
exists
a
form
of
protection
against
the
revocability
of
the
licence.
This
protection
in
equity
is
guaranteed
by
these
instruments:
the
estoppel,
the
contractual
licence
with
the
rule
of
Winter
Gardens
case,
and
with
the
life
interest.
Lpt/18/11/12/Property Law/
11
With
the
estoppel
the
effect
is
to
render
irrevocable
the
licence;
the
elements
to
have
an
estoppel
are
that
a
person
must
have
acted
to
his
detriment
thinking
that
an
event
will
occur
in
the
future
on
a
certain
date
or
in
correspondence
of
an
accident.
For
example
if
a
father
gives
to
his
son
land
telling
him
to
build
a
bungalow,
and
having
the
son
so
asked,
and
having
expended
money
thinking
that
the
land
is
his
property
or
it
will
become
in
the
future,
in
the
event
in
the
future
the
father
wants
to
have
back
his
land
the
son
can
use
the
instrument
of
estoppel
to
remain
in
the
property.
Estoppel
requires
that
you
act
to
your
detriment
expending
money
because
you
think
that
the
land
was
already
yours
or
would
become
yours
in
the
future
(Inwards
v
Baker).
The
second
form
of
protection
is
a
contractual
licence:
a
contractual
licence
is
a
licence
based
on
a
contract
for
some
consideration.
Regarding
the
possibility
to
revoke
a
contractual
licence
we
need
to
refer
to
the
rule
introduced
by
the
case
Winter
Garden
Estates.
In
this
case
the
Court
of
Appeal
held
that
a
contractual
licence
is
revocable
if
in
the
contract
there
is
an
implied
term
that
make
suppose
the
[illegible]the
render
irrevocable
the
licence.
In
this
case
the
House
of
Lords
held
that
to
have
to
revoke
it
is
necessary
a
formal
notice.
The
point
is
to
examine
if
in
the
contract
there
is
an
express
term
that
make
the
licence
irrevocable.
If
there
is
not
an
express
term,
there
could
be
an
implied
term;
there
could
be
a
presumption
of
the
existence
of
this
term.
The
court
has
to
take
into
consideration
the
intention
of
the
parties,
and
analyse
all
the
terms
of
the
contract.
Another
way
is
to
consider
the
licence
as
a
life
interest.
Regarding
the
contractual
licence
another
problem
that
arises
is
if
they
are
binding
for
others,
third
parties
or
not.
The
traditional
view
is
that
the
courts
find
licences
only
binding
for
the
parties
of
the
contract.
Lord
Denning
introduced
a
new
view
in
saying
that
they
have
to
be
considered
binding
if
it
is
necessary
(Errington)
that
they
are
binding.
This
would
depend
from
one
case
to
another,
usually
protecting
the
licence
by
a
constructive
trust.
There
is
a
subsequent
theory
Lpt/18/11/12/Property Law/
12
introduced
by
Lord
Denning
that
it
looks
like
a
return
to
the
past
view:
the
contract
is
binding
only
for
the
parties
to
the
contract
(Arthurn
v
Arnold).
------------------------------------------------------------------------------------
Tip:
buy,
read
and
live
by:
Bryan
A.
Garner,
Elements
of
Legal
Style
(OUP,
2002)
Lpt/18/11/12/Property Law/