Licences, and Licence against Lease and Easement

In one line

A licence is bare permission to do something on another's land that would otherwise be a trespass, it creates no interest at all, and it can usually be taken back.

In exam wording: section 52 provides that where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.

The definition, broken down

"Grants to another, or to a definite number of other persons." A licence is personal to identified people. A permission to the public at large is not a licence but a dedication.

"To do, or continue to do, in or upon the immovable property of the grantor."

"Something which would, in the absence of such right, be unlawful." This is what a licence is for: it makes lawful what would otherwise be a trespass.

"Does not amount to an easement or an interest in the property." The defining negative. A licence gives no interest in land at all. That single fact generates every other rule in the Chapter: it is not transferable, it does not bind a transferee of the land, and it is generally revocable.

Sections 53 to 55: granting a licence

Section 53: who may grant. A licence may be granted by anyone in the circumstances and to the extent in and to which he may transfer his interests in the property affected. This is the same measure as section 8 for easements.

Section 54: express or implied. The grant may be express or implied from the conduct of the grantor; and, importantly, an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a licence.

That last limb is a practical safety net. A failed easement is not simply nothing; it may still make the user lawful as a licence.

Section 55: accessory licences. All licences necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right, and are called accessory licences.

The illustration: A sells the trees growing on his land to B. B is entitled to go on the land and take away the trees. The sale of the trees would be worthless without the right to fetch them, so the law implies it.

Section 56: transferability

Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee; but save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents.