Real Property Notes #4

🪪Leases and Licenses

(i)  Licenses

The Nature, Acquisition and Termination

-The essential characteristic of a license is the absence of exclusive possession. This means that a licensee does not have the right to exclude others from the premises

-It is permission for someone to temporarily use the land

-License is terminable has no propriety interest

-A license can be acquired either expressly, through written or oral agreement, or impliedly, through the conduct of the parties.

-For instance, purchasing a ticket for entry to an event creates an implied license.

-Licenses can also arise by operation of law, such as in emergency situations where one grants temporary shelter to another

-The termination of licenses is usually at the discretion of the licensor, subject to any terms agreed upon

-You can tell someone with the license to leave immediately and they have to

-In jurisdictions such as Trinidad and Tobago, the license can be revoked anytime regardless of a fixed term that was initially agreed upon. But the licensor must exercise this right in good faith and without acting arbitrarily

*Underage persons can get a license but not a lease

*You can be granted use of land for a particular purpose due to an agreement but the licensor can kick you off any time

Types of license:

Bear license

-A bare license is simply the giving of personal permission by the landowner for the licensee (the person with the benefit of the license) to enter and remain on the land. The licensee will not be required to provide consideration for accessing the land. (Mailman)

-can be kicked off immediately

Contractual license

-A contractual license is similar to a bare license insofar as it grants the licensee permission to access the land. Where the two kinds of licenses differ is that the contractual license includes the giving of consideration by the licensee for the benefit of the license (concert, car park)

-if you say the person needs to leave immediately, the courts will look on what you allow them to take on the land and how long it would take to remove them reasonably (can be kicked off immediately also)

(ii)  Leases

The nature, Acquisition and Termination

-Lease is also called demise.

-Leases confer exclusive possession of the property upon the tenant for a specified term

-Components: Lessor (owner) and lessee (gets property for a period)

-Leases are usually acquired through formal written agreements, through oral leases can also be valid for shorter terms

-In jurisdictions such as Jamaica, the case of H v S affirmed that leases can be created orally, provided all essential terms are clearly established

-Leases terminate upon the expiration of the agreed terms unless renewed or extended by mutual agreement

-Also by breach in covenants or conditions (Caribbean uses this), abandonment by tenant or by mutual agreement

-In the UK, case of S v H, a landlord can terminate a lease for non-payment of rent, provided proper notice and legal procedures are followed

-Lessor retains reversion; eg: free hold owner means freehold reversion or can assign reversion to another person

-Owner of the lease can grant a sublease/subletting (you are leased the land and lease of out to B) can be full or sublet a part of the property

-If the jerk man had a lease for two years with you and he emits smoke which affects your child and you want to kick him off before the end of lease. You can’t ask him to leave because he has temporary ownership of your property. Asking him to leave in and of itself isn't a breach it just wouldn’t be successful

🪪Differences between a lease and a license

Exclusive possession

+This is a fundamental distinction between the two

+A lease confers exclusive possession upon a tenant, granting them the right to exclude others from the premises. In contrast, a license does not grant exclusive possession, allowing the licensor to retain control over the property

Interest in Property

+A lease creates an interest in the property, often referred to as a leasehold estate, which can be assigned or sublet to a tenant