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Leases and Licenses
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Lecture notes of 26 pages for the course Property Law at UKC
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Property Law – Week 16 Lecture NotesLEASES AND LICENCES
Introduction to leases and licences
Outline of lecture
Podcast 1 – Introduction: Ownership and possession, the idea of
property in land, how this relates to leases and licences
Podcast 2 – Licences: What is a licence, some examples, how might
a licence ‘morph’ into a property interest, thinking about power
and licences
Podcast 3 – Street v Mountford [1985 ] 1 AC 809: The context, the
definition of a lease
Podcast 4 – The sharing cases: Anontiades v Villiers, AG Secruities
v Vaughan, Antoni
Podcast 5 – the exceptional cases
Podcast 6 – the current context: Does the lease/licence distinction
have contemporary practical significance, the Assured Shorthold
Tenancy, the ‘re-regulation’ of private renting, the contemporary
housing crisis, property Guardianship
Ownership and possession
This week’s podcast builds on and develops concepts of ownership and
possession that we considered in week 15
• It draws on Kevin and Susan Gray’s essay ‘The idea of property in
land’ (This is not essential reading for the seminar, but is additional
reading)
• It is called "The idea of property in land”
• Kevin Gray (Professor in land law at Cambridge, interested in
conceptual meanings as well as an accurate understanding) and
Susan Francis Gray
THE IDEA OF PROPERTY IN LAND.RTF (cam.ac.uk) [ ESSAY]
• In Susan Bright and John K Dewar (eds), Land Law: Themes and
Perspectives (Oxford University Press 1998), 15 – 51 ] (essay
proposed by the Cambridge Professor, recommended reading)
,Key ideas in the essay
• Introduction
• Fragility of concept of property- difficult to get a hold of as a
concept
• Relationality of property
• Power and property- there is a correlation between property
and power (hierarchal concept)
• Property related to the proper ordering of things
• Property is not absolute but relative- power is diffused
through property in different ways
• Gradations of property
• Starts with a story to make this clear, also demonstrates how
slippery the concepts are
How do we think about property?
• (Third part of the essay) – the question at the heart of the essay
• Ambivalence of conceptual models of property, and its
consequences
• Dominant models of property (conceptual models) in land fluctuate
inconsistently between 3 different perspectives:
1. Property as fact
2. Property as right
3. Property as responsibility
• The structural indeterminacy explains the intractable nature of
land law dilemmas and Impedes constructive responses to land law
dilemmas
Property as a fact/ dominion
• Part of anti-intellectual streak in the common law fastens upon
facts
• What happens on the ground?
• The elemental primacy of sustained possession
• The propriety of the relationship with the land
• Sense of sovereignty and emotional security given by
possession
• The behavioural connotation of property (how much property
you have defines how you behave)
• The unease of the trespasser
The self-imposed boundaries of the lodger
• The occupier is, in some elusive sense, the master of his own
destiny: he is accredited with the quantum of 'property' which
corresponds most closely to the quality of his own behaviour
, The importance of possession
• The externally verifiable modalities of possessory control
• Claim to exclusive and unrestricted use of a piece of land generally
connotes a claim to either a freehold or leasehold estate
Property as a right
• Property as a right rest upon a complex calculus of carefully
calibrated estates and interests in land, so they are all
worked out
• Property relationships through the lenses of different types of
property interests which exist
• Your claim is not that you own the property but that you own a
right in or over the physical property
• You have an interest in it, IT IS NOT YOUR THING.
• One has property in an abstract right rather than property in a
physical thing
• Property has to have a clear-cut quality which means that its
presence or absence or infringement is clear
• You know that something has a property interest in this way
because of the way it complies with particular rules:
• Property must come in neat, discrete, pre-packaged conceptual
compartments, immune from tampering or amplification
• The government resists when people attempt to expand it
Property as a responsibility
• Elements of utility that can characterise relationship with land in
an economic sense
• The elements of utility require to be held in balance when
extracting value, this is mediated through the state
• Not so much a bundle of rights as a bundle of individuated
elements of land-based utility
• A state-directed responsibly to contribute towards the collective
exploitation of all land resources for communal benefit
• Less a right, more of a restraint
• Not the arrogance of the right but the commonality of obligation
and civic responsibility
How does this relate to the legal rules relating to leases and
licences?
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