1

EXAMPLES OF A PAST QUESTION AND REAL ANWSERS IN EACH CLASS OF GRADE

or How to (and not to) answer a question

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

Comment [1]: Intro directed precisely at

the Q. Takes it further than 2.1 answer in that
she identifies the source of Sir Brians
quotation and notes the subsequent change.
Also note the lack of scaffolding (no it is
necessary to discuss the basics)

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

Comment [2]: Immediately sets out why

the Q is significant

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/

Comment [3]: Gives the background,

succinctly, to the change of direction in the
common 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

Comment [4]: Again, succinct explanation

of why the change of approach was taken.

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.

Comment [5]: All is not perfect avoid

double negatives and weasel words like
perhaps.
Comment [6]: Relates this paragraph back
to the Q.

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

Comment [7]: Goes deeper into the case.

intention to create a licence ought to create a licence, but the House of Lords in Bruton

Comment [8]: Good, succinct summary of

the significance of the quotation

subsequently held that this should not matter.

The parties intentions may also still be relevant where, for example, the occupancy
between the parties is referable to another relationship, other than landlord and tenant. So,

Comment [9]: Here, she could have

developed the point in her last sentence that
the HL departed from the CA in Bruton. The
reader naturally wants to know why.

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

Comment [10]: This general survey of the

case law is deftly linked to the Q

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/

Comment [11]: Depth of analysis of case

law good cites specific speeches.

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

Comment [12]: Not only does she quote

authority, but she analyses it by paraphrasing
it in her own words, showing that she
understands it and has not merely memorised
what the authority says.

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

Comment [13]: Here she uses the term

occupancy because in advance of applying
the test, one does not know whether it will be a
lease or a licence. This shows a high degree of
precision in the use of terminology and shows
that she is at ease with the ideas.

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

Comment [14]: Note that she adduces

cases strictly in relation to their relevance to
the point she is making. She does not make
general statements about them or go into
irrelevant facts.

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.

Comment [15]: This is a little vague it

could be better developed.
Comment [16]: Concludes by referring to
the Q. In all, this is a very tidy, intelligent,
well-structured and lucid answer. She sticks
firmly to the Q and answers it well. She shows
a mastery of the subject matter and a
sophisticated depth of understanding. Slightly
more attention to the HLs reasoning in Bruton
would have raised the grade.

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/

Comment [17]: Refers to the Q in intro,

but does not add anything (we know the
quotation comes from Bruton because we are
told in the exam).
Comment [18]: Yes, but this is a bit vague
much legislation is that a bad or a good
thing? He could omit this bit because he goes
on to state the real issue that leaseholders
receive protection.

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

Comment [19]: Slightly vague? What he

means presumably is that a lease, as a
proprietary right, binds third parties and is
valuable, while a licence is not proprietary and
is therefore precarious. Could be expressed
more succinctly.
Comment [20]: Poor argument: It is not
clear why this is relevant yes, it shows that
leases and licences have different features, but
having terms implied by statute does not in
itself mean that a lease is preferable to a
licence.

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

Comment [21]: A serviceable summary of

the facts.
Comment [22]: Grammar?

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.

Comment [23]: This is not entirely true

such a broad statement is a bit dangerous
because he will no doubt appear to contradict
himself later when he talks about cases where
intention is upheld despite the presence of the
badges.

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

Comment [24]: Note good connection

between the first sentence of this paragraph
and the last sentence of the previous
paragraph.
Comment [25]: Succinctly sets case in its
historic context.

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/

Comment [26]: Without more comment,

this remark is not useful.

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

Comment [27]: Sometimes this student is

precise with terminology, but here, since a
licence was upheld, the owner of the premises
is a licensor, not a landlady.

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.

Comment [28]: Slightly vague statement

The Court was willing to examine separate documents together to determine whether they
are independent or interdependent, in establishing whether exclusive possession existed. In

Comment [29]: In which case? It is not

clear.

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/

Comment [30]: Good summary. Facts

limited to what is relevant. However, this last
case is not analysed sufficiently to give an idea
of why the court decided the agreements were
licences and not leases: it was because after
one of the occupants left, the landlord refused
the remaining occupants offer to pay rent on
the whole flat, thereby remaining true to his
intention to grant only a licence.
Comment [31]: It is, however, beside the
point: the inability of a party to grant a tenancy
is not what is confusing (it is not necessary for
an estoppel licence anyway); what is odd is not
that the charity did not have a right in land
itself but that the court did not consider their
intention in granting licences.

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

Comment [32]: This is descriptive rather

than analytical. An analytical question would
discuss the fact that in each of these cases, it
was not only whether the clause limiting
occupation was reasonable in the
circumstances but also the owners behaviour
that either confirmed or undermined the
intention to create a licence rather than a lease.

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.

Comment [33]: Concludes by referring to

the Q.
In all, a very good answer which keeps close
to the Q and offers a highly competent survey
of the law on this particular point.

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

Comment [34]: Yes, but this is highly

generalised.

needed to establish a lease (a proprietary right) as opposed to a mere licence. In order to

answer the question it is first necessary to look at how the courts deal with the distinction.

Lpt/18/11/12/Property Law/

Comment [35]: This is scaffolding.

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

Comment [36]: Introduced a bit abruptly

what is the context of Street? Did it precede
Bruton?

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.

Comment [37]: Descriptive and does not

show how it is related to the preceding
paragraph.

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.

Comment [38]: Ditto.

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/

Comment [39]: Distinguishes cases where

there is no intention to grant exclusive
possession from those where there is exclusive
possession but a legitimate intention not to
grant a lease. good

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.

Comment [40]: These three paragraphs

flow well together.

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

Comment [41]: Raises the point of the

estoppel lease put does not fully explain the
significance of this in the context of earlier
authorities.

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.

Comment [42]: Goes back (generally to the

Q). Has kept to the Q throughout, but on the
whole this answer is a bit thin. There is some
analysis, which gets it into the 2.1 range, but
not enough to get a higher 2.1

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/

Comment [43]: Oh dear. Vague

expressions like revolve around dont inspire
confidence.
Comment [44]: This student thinks that
the second part of the sentence expands and
develops the first but it does no such thing.
Note lack of reference to the Q.
Comment [45]: Ugh.
Comment [46]: Only attempt? Why not
just define it?
Comment [47]: Actually, this could
describe a freehold! One could buy a freehold
and keep it only for a few weeks.
Comment [48]: Im so pleased.
Comment [49]: Just get to the point.

9
exclusive possession and control are used interchangeably. There are however three
exceptions from this general rule of exclusive possession which are that: -

Comment [50]: Vague term

-where services are provided it may not be a lease, it may be a licence

-where it is an act of generosity. This could be exemplified by a case where a landlord
decides to help a family member for a period of time and;
-where there is a contract of employment.

This does not by any means say that the court will automatically grant a lease where the

Comment [51]: Why such tentative

language?
Comment [52]: This is too imprecise: It
implies that generally if one has a job one
cannot have a lease! It does not refer even
briefly to the connection between use of the
premises and the performance of a job.

intention of the landlord. The leaseholder has got some protection under the Act and that is

Comment [53]: Note the complete lack of

authority

why the problem always arises as to whether it is lease or a licence.

Comment [54]: Verb missing.

Comment [55]: This is a non-sequitur.

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.

Comment [56]: The use of actually and

really in the same sentence doesnt inspire
confidence.
Comment [57]: Who?
Comment [58]: Why no authority for these
views?

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

Comment [59]: How did the Court know?

control was in the hands of the tenants.

In the case of Westminster City Council v Clarke 1994 on the agreement to give out a room
to Mr. Clarke, it was said that the council could come in at will and that Mr. Clarke could be
moved from the room at any time where alternative accommodation was found for him.
This was held not to be exclusive possession hence not a lease.

In Bruton v London Housing Association 1997 with similar facts as the above case there was
an absence of signs of control by the landlord who had given a weekly tenancy. It was held
that Bruton had exclusive possession hence a lease.

Lpt/18/11/12/Property Law/

Comment [60]: But how is it distinguished

from Antoniades, where the owner also
purported to have control? The descriptions
here are too superficial to support any
argument.
Comment [61]: Wasnt the issue that the
charity had purported to grant a licence?

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.

Comment [62]: ?????

Comment [63]: Why? How?

It is important to note there is a difference between residential and commercial occupiers.

In commercial accommodation, there is control as chief determinant of whether it is a lease
or a licence.

Comment [64]: Huh?

Comment [65]: In all, there is actually

nothing incorrect here. But that is mainly
because the student glides so superficially over
the subject that he never gets into any detail.
He gets into the 2.2 just (although I had given
a third-class mark) because he has clearly
learned something about the lease/licence
distinction and seems to understand generally
where the problem lies. But he makes very
little reference to the Q and seriously impairs
the essay by failing to cite much authority.

Miryam
fail
A licence is a personal privilege.

Comment [66]: Aaghh!!!!!!

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.

Comment [67]: Not if its a contractual

licence!
Comment [68]: I realise early on that the
student has no clue what the Q is about.

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.

Comment [69]: Are we ever going to get to

leases?
Comment [70]: Why does this sentence
stand on its own (and why is it even in this
essay?)

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/

Comment [71]: She is slipping fast beyond

the point of redemption.

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/

Comment [72]: At this point I will have

stopped commenting and will scan the rest of
the essay in the vain hope of finding
something related to the Q before I consign
this to the fail pile.

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)

Dictionary of Modern Legal Usage (OUP, 2001)

Lpt/18/11/12/Property Law/

Comment [73]: Note that these answers

were not from a KCL exam. As for the last
answer, I have never seen a Kings student
remotely approach this level of awfulness.
But note that it bears features which even
some better students display and which they
should take guard against: single sentence
paragraphs, failure to cite authority,
general intros, straying from the Q (here
not even in same post code as the Q),
description as opposed to analysis.