ABSTRACT
The law surrounding contractual licences over land has long been the subject of controversy, particularly since Lord Denning’s attempts to convert them into fully proprietary rights. This paper divides the law concerning such licences into three eras, orthodoxy, Denning, and a ‘return to orthodoxy?’ before analysing each in turn. Subsequently, it outlines how despite an apparent return to orthodoxy licences have continued to benefit from significant ‘remedial growth’, as courts have been willing to grant licensees remedies traditionally restricted to, and intertwined with, proprietary rights, such as relief from forfeiture, specific performance, injunctive relief, and the ability to bring trespass claims. It will then be suggested that there are only three possible approaches to contractual licences over land: i) they are fully proprietary, ii) they are purely personal rights, or, iii) they can be recognised as weakly, or ‘quasi’, proprietary. It will be suggested that of these approaches the third is the most coherent and is in line both with equity’s general tendency to transform purely personal rights into proprietary rights, and with the relative and gradated nature of property in the common law.
Clover Alcolea, Lucas, Contractual Licences Over Land and the Disappearing Divide between Property and Obligation (April 11, 2024), (2024) Australian Bar Review 54(3) (forthcoming).
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