Chapter 11 Key facts checklists

Licences and proprietary estoppel

A licence is permission given by the licensor to the licensee to allow the latter to enter the land of the former which, without such permission, would otherwise amount to a trespass.
A licence should be distinguished from a lease (see also chapter 6).
Different types of licences will have different rules in relation to the original parties and successors in title.
A bare licence is revocable by the licensor and does not bind a third party.
A licence coupled with an interest, ie a profit à prendre, may be irrevocable and may bind a third party whilst the interest remains.
Contractual licences are licences that arise under the terms of a contract. Revocation may lead to breach of contract and the intervention of equity to enforce the licence for the benefit of the licensee. Modern orthodoxy suggests such licences cannot bind third parties unless protected by an estoppel or constructive trust.
An estoppel licence arises as a result of a representation by the licensor and a detrimental reliance by the licensee. It is binding between these two parties but is also capable of binding a third party.
The key requirements to establishing an estoppel are:
– assurance;
– reliance;
– detriment;
– unconscionability.
To satisfy the equity arising by estoppel, the courts have discretion as to the remedy to award but are guided by principles of proportionality and awarding the minimum to do justice.
The inchoate equity arising by estoppel may be binding upon third parties.