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property_law_summaries

Of certain or uncertain duration 1 the right to

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Of certain or uncertain duration 1) The Right to exclusive possession a. Radaich v Smith b. Street v Mountford Once you have exclusive possession – then you are dealing with a lease. If you do NOT have exclusive possession , then it is not a lease – at most you’re dealing with a licence.
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LICENCES_________________________________________________________ DEFINITON : A licence gives the licensee permission to do something on land that would otherwise be unlawful (eg. Entry, use, occupation) o It will never be exclusive possession Characteristics (look at table used previously) There are three types: o A bare licence o A licence coupled with a grant o A contractual licence BARE LICENCE DEFINTION Permission to enter onto the land of another person with or without conditions attached. CREATION It can be created expressly or by implication No consideration/contract No proprietary rights ENFORCEABILITY Enforceable against the licensor only LICENCE COUPLED WITH A GRANT DEFINTION Permission to enter land in order to exercise property rights over the land itself or the chattels lying on it. (Easement or profit a prendre) CREATION Can be assigned ENFORCEABILITY Capable of binding third parties Who it binds? – depends on whether it was legally created or equitabilly. DETERMINATION : Cannot be revoked. CONTRACTUAL LICENCE
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DEFINTION Contractual right to enter the land of another person and to sue or occupy it for a particular purpose. ( NOTE : NOT exclusive possession – would be a lease otherwise: see Milkbar case – Radaich) can be of an uncertain duration. CREATION By contract: express of implied. ENFORCEABILITY Privity of contract: only against the licensor Can have injunction: refer to: Heidke DETERMINATION: Contract. Licensor is free to withdraw permission even if wrongful, and then the licensee becomes a trespasser (Cowell, Rosehill Racecourse) REMEDIES FOR WORNGFUL REVOCATION damages injunction or other equitable relief. Both cases agree contractual licences do not confer a property interest. Contractual licences can be wrongfully revoked so the licensee becomes a trespasser. Damages of breach of contract are available. DIFFERENCES BETWEEN THE CASES Cowell: Can’t get an equitable remedy To grant an injunction would be to treat it as a property right. Heidke: These comments in Cowell were obiter. Can get equitable relief. They can attach to contractual rights. There is an expressed or implied term that the contractual licence will not be revoked until the purpose for which it is given and accomplished. ARE CONTRACTUAL LIENCES ENFORCEBALE AGAINST THIRD PARTIES? General rule: NO King v David Allen Billposting: (He couldn’t sue the third party.) Exception : exceptional circumstances showing that the third party undertook a new liability to give effect to that contractual licence. (this is called a constructive trust) Anastalt v Arnold TEST: Has the owner of the property with the new third party conducted him or herself in such a way that it would be inequitable or unfair to allow him or her to deny the licensee’s right?
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HOW ARE PROPERTY INTERESTS PROTECTED? -
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Of certain or uncertain duration 1 The Right to exclusive...

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