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The Termination of Bare Licences

Published online by Cambridge University Press:  31 May 2001

Jonathan Hill
Jonathan Hill*
Affiliation:
University of Bristol
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Abstract

In principle, the law relating to the termination of bare (or gratuitous) licences should be relatively simple. Bare licences do not enjoy statutory protection and a bare licence cannot impose contractual obligations on the licensor. There are, however, four elements which complicate the law. First, through the operation of the doctrine of proprietary estoppel, the licensor may be estopped from revoking a bare licence. Second, a licence which has been acted upon is not revocable. Third, on revocation of a bare licence, the licensee must be given a reasonable “period of grace” or “packing-up period”. Fourth, it is sometimes said that a bare licence may be revoked only “on reasonable notice.” These four elements overlap (in part) and, in the case law and academic literature, there is some degree of confusion. The difficulties which exist can be resolved by more rigorous analysis.

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Articles
Information
The Cambridge Law Journal , Volume 60 , Issue 1 , March 2001 , pp. 89 - 108
Copyright
Copyright © Cambridge Law Journal and Contributors 2001

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Footnotes

I am grateful to David Clarke and Keith Stanton who commented on an earlier draft of this article. The usual disclaimers apply.

References

1 Gray v. Taylor [1998] 1 W.L.R. 1093.

2 Robson v. Hallett [1967] 2 Q.B. 939, 951; Lambert v. Roberts [1981] 2 All E.R. 15, 19.

3 Hurst v. Picture Theatres Ltd. [1915] 1 K.B. 1.

4 [1985] A.C. 809.

5 AG Securities V. Vaughan [1990] 1 A.C. 417.

6 Wallis v. Harrison (1838) 4 M. & W. 538.

7 King v. David Allen & Sons (Billposting) Ltd. [1916] 2 A.C. 54.

8 James Jones & Sons, Ltd. v. Tankerville (Earl) [1909] 2 Ch. 440.

9 (1845) 13 M. & W. 838, 845. See also Coleridge J. in Wood v. Manley (1839) 11 Ad. & E. 34, 37-88.

10 Cf. Vaughan v. Hampson (1875) 33 L.T. 15 and Hurst V. Picture Theatres Ltd. [1915] 1 K.B. 1 which extended the notion of a licence coupled with an interest in cases where no proprietary interest was involved. Both cases must be regarded as having been wrongly decided on this point, though the result in Hurst v. Picture Theatres Ltd. can be explained on another basis (see the speech of Viscount Simon L.C. in Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd. [1948] A.C. 173, 188). See also the judgment of Megarry J. in Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] 1 Ch. 233, 243-245, 254 and the judgment of Mahon J. in Mayfield Holdings Ltd. v. Moana Reef Ltd. [1973] 1 N.Z.L.R. 309, 315.

11 Wood v. Manley (1839) 11 Ad. & E. 34; James Jones & Sons, Ltd. v. Tankerville (Earl) [1909] 2 Ch. 440.

12 Some make a threefold division (contract, bare and estoppel), but it has been rightly pointed out that “[p]roprietary estoppel has no necessary connection with the law of licences”: Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000), para. 13-037Google Scholar. See also Smith, R.J., Property Law, 3rd ed. (London 2000), p. 429Google Scholar.

13 Protection from Eviction Act 1977 (as amended).

14 Llanelly Railway & Dock Co. v. London & North Western Railway Co. (1875) L.R. 7 H.L. 550.

15 Compare Minister of Health v. Bellotti [1944] K.B. 298 and Australian Blue Metal Ltd. v. Hughes [1963] A.C. 74, 98.

16 See Protection from Eviction Act 1977, s. 5 (as amended by Housing Act 1988, s. 32).

17 Protection from Eviction Act 1977, s. 3A(7)(b).

18 These expressions are used by Lord Macdermott in Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd. [1948] A.C. 173, 204, 206.

19 See Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, para. 17-003.

20 See Gray, K.J. & Gray, S.F., Elements of Land Law, 3rd. ed. (London 2000)Google Scholar, paras. 7.18-7.27; Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, ch. 13.

21 Crabb v. Arun D.C. [1976] Ch. 179.

22 Pascoe v. Turner [1979] 1 W.L.R. 431.

23 Sledmore v. Dalby (1996) 72 P. & C.R. 196.

24 See S. Moriarty, “Licences and Land Law: Legal Principles and Public Policies” (1984) 100 L.Q.R. 376, 377-388. For consideration of the principle (and its limits) see Burrows v. Sharp (1991) 23 H.L.R. 82.

25 Webb v Paternoster (1619) Pop. 151 is said to lay down the rule that “a licence executed is not countermandable; but only when it is executory”: Lord Ellenborough C.J. in Winter v. Brockwell (1807) 8 East 308, 310.

26 (1831) 7 Bing. 682.

27 Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, para. 17-012.

28 (1807) 8 East 308.

29 At p. 310.

30 Tindal C.J. in Liggins v. Inge (1831) 7 Bing. 682, 694. Cf. Feltham v. Cartwright (1839) 5 Bing. N.C. 569, to which Megarry J. referred in Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] 1 Ch. 233, 255.

31 [1980] 1 W.L.R. 1306.

32 Tindal C.J. in Liggins v. Inge (1831) 7 Bing. 682, 694.

33 (1826) 5B. & C. 221.

34 (1834) 1 Cr. M. & R. 418.

35 McGhee, J., Snell's Equity, 13th ed. (London 2000)Google Scholar, para. 39-15.

36 (1851) 14 Beav. 530.

37 See also Powell v. Thomas (1848) 6 Hare 300.

38 (1851) 14 Beav. 530, 532 (“the Defendant having consented to the making of the watercourse, and stood by and allowed the Plaintiffs to expend money in its construction, on the faith of that consent, could not be permitted to recal [sic] the licence”).

39 Ward v. Kirkland [1967] Ch. 194.

40 Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, para. 17-012.

41 The eclipsing of the common law doctrine by equity seems to have started in the nineteenth century: Powell v. Thomas (1848) 6 Hare 300; Duke of Devonshire v. Eglin (1851) 14 Beav. 530.

42 The doctrine was, however, referred to in Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] 1 Ch. 233. Even in the nineteenth century, there were cases in which the common law doctrine was not referred to even though the facts would appear to fall squarely within its scope: see, for example, R. v. The Inhabitants of Hordon-on-lhe-Hill (1816) 4 M. & S. 562 (in which B licensed A to build a house on land owned by B).

43 Ward v. Kirkland [1967] Ch. 194. Cf. Inwards v. Baker [1965] 2 Q.B. 29.

44 (1870) L.R. 5 C.P. 334.

45 See, for example, E. & L. Berg Homes Ltd. v. Grey (1979) 253 E.G. 473.

46 See Robson v. Hallett [1967] 2 Q.B. 939 and Lambert v. Roberts [1981] 2 All E.R. 15 (both cases involving uninvited police officers).

47 E. & L. Berg Homes Ltd v. Grey (1979) 253 E.G. 473.

48 See, for example, Governing Body of Henrietta Barnett School v. Hampstead Garden Suburb Institute (1995) 93 L.G.R. 470 (although it should be noted that the analysis of Camwath J. was in terms of reasonable notice of revocation, rather than a reasonable packing-up period).

49 Cornish v. Stubbs (1870) L.R. 5 C.P. 334.

50 See, for example, Kerrison v. Smith [1897] 2 Q.B. 445.

51 [1967] 2 Q.B. 939, 953.

52 (1979) 253 E.G. 473.

53 [1944] K.B. 298.

54 (1979) 253 E.G. 473, 476.

55 [1948] A.C. 173, 204.

56 See Bovill C.J.'s judgment at (1870) L.R. 5 C.P. 334, 338.

57 [1948] A.C. 173.

58 At p. 204.

59 Harpum, C., Megarry & Wade: The Law of Teal Property, 6th ed. (London 2000)Google Scholar, para. 17-003.

60 Gray, K.J., Elements of Land Law, 2nd ed. (London 1993), p. 898Google Scholar. In the new edition—Gray, K.J. & Gray, S.F., Elements of Land Law, 3rd. ed. (London 2000)Google Scholar—the equivalent passage reads: “effective revocation of a bare licence generally requires no prior notice” (p. 156). See also MacKenzie, J.-A. and Phillips, M., Textbook on Land Law, 8th ed. (London 1999)Google Scholar, para. 17.2.2; Stevens, J. and Pearce, R.A., Land Law (London 1998), p. 413Google Scholar; Thompson, M.P., Land Law (London 1995), p. 169Google Scholar.

61 See Lord Denman C.J. in Turner v. Doe d. Bennett (1842) 9 M. & W. 643, 646. See also the judgment of Isaac J. in Landale v. Menzies (1909) 9 C.L.R. 89, 133.

62 Co. Litt. 55b.

63 Property Law, 3rd ed. (London 2000), p. 429.

64 (1619) Pop. 151.

65 Alderson B. in (1845) 13 M. & W. 838, 846-847.

66 [1991] 1 W.L.R. 1241, 1248.

67 [1948] A.C. 173, 196.

68 [1894] 2 Ch. 437.

69 The other case cited is Armstrong v. Sheppard & Short Ltd. [1959] 2 Q.B. 384. This citation is not easy to explain as there appears to be no discussion of the question of notice by Lord Evershed M.R., who gave the judgment of the Court of Appeal.

70 For a detailed discussion of the decision see the text at nn. 72-83.

71 Canadian Pacific Railway Co. v. The King [1931] A.C. 414; Governing Body of Henrietta Barnett School v. Hampstead Garden Suburb Institute (1995) 93 L.G.R. 470.

72 [1894] 2 Ch. 437. In the account which follows the facts relevant to the main issue in the case (namely, the landlord's implied covenant not to derogate from his grant) are omitted.

73 At p. 448.

74 At pp. 440-441.

75 (1865) L.R. 1 H.L. 129.

76 (1851) 1 Beav. 530.

77 (1807) 8 East 308.

78 See the text at nn. 33-34.

79 [1894] 2 Ch. 437, 448.

80 (1826) 5 B. & C. 221.

81 Compare Cable v. Bryant [1908] 1 Ch. 259 and Bryant v. Lefever (1879) 4 C.P.D. 172.

82 (1870) L.R. 5 C.P. 334.

83 (1874) L.R. 9 Q.B. 400.

84 See the text at n. 44.

85 The third judge, Lush J., concurred with both reasoned judgments (at p. 406).

86 At p. 405.

87 The decision could also have been justified on the basis of the doctrine of a licence acted upon. See the text at nn. 25-43.

88 (1874) L.R. 9 Q.B. 400, 405.

89 [1931] A.C. 414.

90 At p. 432.

91 Ibid.

92 At pp. 432-433.

93 (1995) 93 L.G.R. 470.

94 The case was significantly more complicated than this brief summary suggests: the purpose of the notice of revocation was not to require the school to vacate the premises but to bring matters to a head, with a view to putting the occupation of the school on a more commercial basis; it was accepted on all sides that there was no way in which the school could have relocated in nine months.

95 (1870) L.R. 5 C.P. 334.

96 (1874) L.R. 9 Q.B. 400.

97 See the text at nn. 82-88.

98 See, for example, Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, para. 17-003; Sparkes, P., A New Land Law (Oxford 1999), p. 377Google Scholar.

99 Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, para. 17-008.

100 See, for example, the statement in Dixon, M., Principles of Land Law, 3rd ed. (London 1999)Google Scholar, para. 9.3.1 that “the licensor may terminate the licence by giving reasonable notice to the licensee” for which Robson v. Hallett [1967] 2 Q.B. 939 and the Hampstead Garden Suburb Institute case (1995) 93 L.G.R. 470 are cited.

101 [1948] A.C. 173, 208. See also Sir Valentine Holmes K.C. (arguendo) at p. 187; Lord Diplock in Greater London Council v. Jenkins [1975] 1 W.L.R. 155, 158.

102 See Sparkes, P., A Hew Land Law (1999), p. 378Google Scholar.

103 Cf. T. Kerbel [1996] Conv 63, 66.

104 It is worth noting that, although Carnwath J. adopted a similarly narrow view of the doctrine of proprietary estoppel in Gillett v. Holt [1998] 3 All E.R. 917, this view was rejected by the Court of Appeal [2000] 3 W.L.R. 815.

105 An obvious example is the heretical doctrine propounded by Lord Denning M.R. to the effect that a contractual licence takes effect as an equitable interest in land (see Errington v. Errington [1952] 1 K.B. 290 and Binions v. Evans [1972] Ch. 359), which, notwithstanding the House of Lords’ decision in National Provincial Bank Ltd. v. Ainsworth [1965] A.C. 1175, was not definitively rejected until Ashburn Anstalt v. Arnold [1989] Ch. 1. See Harpum, C., Megarry & Wade: The Law of Real Property, 6th ed. (London 2000)Google Scholar, paras. 17-016-17-019.

106 [1974] 1 W.L.R. 1241.

107 E. & L. Berg Homes Ltd. v. Grey (1979) 253 E.G. 473.

108 See Roskill L.J. in Crane v. Morris [1965] 1 W.L.R. 1104, 1109; Denning L.J. in Martinali v. Ramuz [1953] 1 W.L.R. 1196, 1199