02 What Is Property

Law of Property
Lecture 02: What is Land?

Property and Non-Property: Licences v Land
Gradations of property
• Non-property (e.g., licences)
• Proprietary rights in the property of another (interests in land) e.g

easements
• Proprietary (“ownership”) rights (estates in land)

• E.g freehold, leasehold
Property v Contract
• Orthodox view:
• Rights in personam = rights against a person
• Remedy - damages
• Rights in rem = rights to a thing

• Remedy - the thing
Property v Contract
• Main difference:
• Contract gives rights against a particular person (privity

doctrine).
• Property gives rights against the world.

Numerus clausus (‘closed number’):
Main rights
• ‘Ownership’ rights (estates in land)
• Freehold (fee simple)
• Leasehold (term of years)
Numerus clausus (‘closed number’):
Other rights (‘interests in the land of another’):
• Charge (mortgage)
• Easement (e.g., right of way)
• Restrictive (freehold) covenant
• Profit a prendre (right to take)
• Rentcharge
• Right of entry
• Option to purchase
• Right of pre-emption , offer to the person you sold the premption to
first
• ‘Mere’ equity (s 116 Land Registration Act 2002)
Permission v rights:
Non-property (licences) v property (rights in land)
Thomas v Sorrell (1673)
Vaughan CJ at 351:
“A licence [permission] properly passeth no interest nor
alters or transfers property in any thing”
But… licenses often resemble property rights and can becomes

mistaken for them
And more worri
A licence can sometimes become a
proprietary right
Example 1:
1. A owns adjacent houses 1 and 2.
2. A leases house 2 to B.
3. As a favour, A gives B permission regularly to cross the garden of
house 1 to get to work.
4. A renews B’s lease, and then tells B to stop taking the shortcut across
the garden.
5. A cannot prevent B from doing this, because the renewal of the lease
turned the licence into an easement.
Example 2:
1. A owns the house in which A and B cohabit in
unmarried bliss.
2. B is allowed to occupy under licence from A.
3. A then says to B, “Of course the house and everything
in it is half yours because we are a couple”.
4. B then goes about spending life savings in
redecoration.
5. A then leaves B and attempts to get B out of the
house.
6. B by now has a proprietary interest and cannot
necessarily be moved.
That is the problem of constructive trust interests in the
family home.
Non-property - types of licences
• Bare
• Defence to trespass, gratuitous, revocable, unenforceable.
• Contractual
• For consideration, damages or specific performance, essentially contractual
licenses give you a right to damages if breached
• Coupled with a grant

• Not revocable. Enforceable because of proprietary interest the licence is linked
to, not because of licence itself.
Snook v Mannion [1982]RTR 321
Bare licence as defence to trespass
‘F**k off you w****r’
Court held that statement did not amount to a request for the police to leave the private premises, as it was ”mere abuse”. The police had an
‘implied licence’ to enter the private premises, as do all people for legitimate reasons. Court held that statement did not amount to a request for the
police to leave the private premises, as it was ”mere abuse””.
Contractual licences:
King v David Allen & Sons Billposting
(1916)
Whether the ‘right’ to affix posters to the side of a cinema was
enforceable against the new cinema-owner.
Lord Buckmaster: a licence creates nothing but a personal

obligation.
Remedy: Revocation of licence gives rise to action for damages (but see
exceptions such as Verral v Gt Yarmouth BC [1981] QB 202)
Contractural licence:
Clore v Theatrical Properties Ltd
[1938] 3 All ER 483
• The defendant theatre owner’s predecessor granted the claimant’s predecessor a ‘lease’ to
operate a ‘front of house’ refreshments concession. After both these interests changed hands,
the defendant sought to evict the claimant Clore, who insisted that he had a property right and
could remain.
• The question was: what was the nature of Clore’s ‘right’? The contract had given the right to
serve refreshments, not a right to exclusive possession (occupation) of the concession area. So
the test was: could Clore keep people out of the concession area? He could only do that if he
had a property right (i.e., a lease).
• The CA held that the ‘front of house’ rights amounted to a contractual licence and could
therefore not ‘bind’ the new theatre owner.
• Here is what Wright LJ had to say…

Wright LJ in Clore
“No doubt the persons who had got a licence to sell refreshments had a
perfect right to say to others: “You must not come behind our bars,
because you will interfere with us, not because you would be a
trespasser.”
So, although the claimant was in occupation of the premises, he did not
have a property right and could therefore be evicted.
But…it is not actually that straightforward.

When do we know when someone’s right is a
property right?
Consider the difference between two scenarios:
• Scenario 1:
• H & W live together. H’s name on title to house. W spends savings on maintaining house.
Unbeknownst to W, H secures loan on house (mortgage), defaults. Lender demands
possession of house in order to sell. W resists. Court awards lender possession.
National Provincial Bank v Ainsworth [1965] AC 1175

Scenario 2
• H & W live together. H’s name on title to house. W contributed money to its purchase.
Unbeknownst to W, H secures loan on house (mortgage), defaults. Lender demands
possession of house in order to sell. W resists. Court awards W possession.
• She had a property right in her home

• It is a beneficial interest under a trust ( a share of the ownership)
William & Glyn’s Bank v Boland [1981] AC 487

Lord Wilberforce in Ainsworth: What makes
a right ‘proprietary’?
For a right to be a property right, it must be:
- definable,
- identifiable by third parties,
- capable in its nature of assumption by third parties,
- have some degree of permanence or stability.”
Problems with this ‘definition’(Evaluation):
• Doesn’t explain all property rights:
• Some not definable:
• ‘mere’ or ‘inchoate’ equities
• Some not identifiable by 3Ps:

• trusts of land
• ‘mere’ equities
• short leases
• ‘overriding interests’
Possession itself is a proprietary right…
• …albeit a weak one.
• One of the oldest indicators of ownership.
• Still used to determine ownership when there is no other evidence
(see, e.g. LRA 2002 Sched 6, para 5(4)).
• Even a thief has a property right in the thing stolen.

And…
• It’s a tautology:
• i.e., it merely says that a property right binds because it’s a property right.
Problems with licence/property distinction:
Hunter v Canary Wharf Ltd (1997)
HL: Claimants had no right to claim in action for trespass because as

licencees they had no proprietary interest.
But is this correct?

Licences alongside possessory (proprietary)
rights
A licencee who goes into possession of the property subject to the licence
has a (weak) possessory right, arising from the fact of possession and not
from the licence.
Problem
1. A owns land and gives a licence to B to occupy it. Before B goes into
possession of the land, C enters the land. Can B evict C?
2. A owns land and gives a licence to B to occupy it. B goes into

possession of the land. C then enters without A’s permission. Can B
evict C?
But…
Manchester Airport v Dutton [2000] QB 133; [1999] EWCA 844
Environmental protesters occupied National Trust land to prevent the

construction of a runway next door, thereby blocking
MA workers from entering the land to clear trees, which
they had a contractual right to do.
Daniel Hooper, aka ‘Swampy’ on Have I Got News For You, 1999.
Swampy and son in HS2 tunnel protest
beneath Euston Station, February 2021
Laws LJ (majority)
At 150:
‘In my judgment the true principle is that a licensee not in occupation
may claim possession against a trespasser if that is a necessary remedy
to vindicate and give effect to such rights of occupation as by contract
with his licensor he enjoys. This is the same principle as allows a
licensee who is in de facto possession to evict a trespasser. There is no
respectable distinction, in law or logic, between the two situations.’
(Emphasis added)
Chadwick LJ (dissenting):
At 144 (referring to the example of a ‘deserted wife’ (i.e., not the title-
owner) who, remaining in occupation of the matrimonial home after her
husband:, has left has the right to keep out intruders):
‘…but that is because her occupation has the necessary possessory

quality and she does not need to rely upon her title.’
Chadwick LJ (dissenting):
At 147:
Makes distinction between ‘…a plaintiff who is in possession and who
seeks protection from those who interfere with that possession, and a
plaintiff who has not gone into possession but who seeks to evict
those who are already on the land. In the latter case (which is this case)
the plaintiff must succeed by the strength of his title, not on the
weakness (or lack) of any title in the defendant.’
(emphasis added).
In other words…
• The first example cited by Laws LJ is correct but not for the reason he
gives.
• A licencee in possession can evict a trespasser, but only in defence of

his possession, not because he seeks to enforce his licence.
• It is not the licence that empowers a licencee in possession to evict a

subsequent intruder, but his possessory right, which has nothing to
do with the licence.
Licences v possessory (property) rights
Timeline:
Manchester Airport
Protestors Manchester Airport
Time of MA’s legal action start of MA’s proprietary right (possession)
Basic rule of property priorities: “The first in time prevails”.

Who had the ‘better’ proprietary right?
End of Lecture 2.

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Law of Property

Lecture 02: What is Land?

• Proprietary rights in the property of another (interests in land) e.g

• Proprietary (“ownership”) rights (estates in land)

• Rights in rem = rights to a thing

• Contract gives rights against a particular person (privity

• Property gives rights against the world.

But… licenses often resemble property rights and can becomes

• Coupled with a grant

‘F**k off you w****r’

Lord Buckmaster: a licence creates nothing but a personal

• Here is what Wright LJ had to say…

But…it is not actually that straightforward.

National Provincial Bank v Ainsworth [1965] AC 1175

• She had a property right in her home

William & Glyn’s Bank v Boland [1981] AC 487

• Some not identifiable by 3Ps:

• Even a thief has a property right in the thing stolen.

HL: Claimants had no right to claim in action for trespass because as

But is this correct?

2. A owns land and gives a licence to B to occupy it. B goes into

Environmental protesters occupied National Trust land to prevent the

‘…but that is because her occupation has the necessary possessory

• A licencee in possession can evict a trespasser, but only in defence of

• It is not the licence that empowers a licencee in possession to evict a

Protestors Manchester Airport

Time of MA’s legal action start of MA’s proprietary right (possession)

Basic rule of property priorities: “The first in time prevails”.

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‘Fk off you w**r’