Licences and the family home

The principle

Permission, not an interest

The licensor grants the permission; the licensee takes the benefit of it. Without it the licensee's presence would be a trespass, an actionable tort. The licence removes the wrong; it hands the licensee nothing to own.

Four consequences follow. A licensee has no interest in the land and cannot sue for trespass. A licensee gets none of a tenant's statutory entitlements, such as a new tenancy under Part II of the Landlord and Tenant (Amendment) Act 1980. A licence does not prima facie bind the licensor's successor and cannot ordinarily be assigned. And occupation under a licence is permissive, so it cannot be adverse.

The types of licence

A bare licence is mere permission, express or implied, unsupported by contract or estoppel. Its scope is limited to what was permitted: in DPP v McMahon [1986] IR 393 IE · Supreme Court the implied licence to enter a public house covered customers coming to eat and drink, not Gardai searching it. It is revocable at any time, as in Bray Boxing Club Ltd v Wicklow County Council [2021] IEHC 182 IE, subject to a packing-up period.

A licence coupled with an interest arises where a proprietary interest, typically a profit a prendre, can only be exercised by entering the land. The implied licence is irrevocable while the profit lasts and binds the grantor's successors: the clearest exception to the rule that licences do not run.

A contractual licence is governed by its contract, and where no period is fixed a term is implied that it may be ended on reasonable notice: Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 Persuasive · England. In The Board of Management of St Patrick's School v Eoghan O'Neachtain Ltd [2018] IEHC 128 IE · High Court a car-parking operator was restrained by injunction once its licences expired, damages being adequate.

An estoppel licence arises where equity restrains revocation because the licensee was led to act on a belief that the permission would continue. Proprietary estoppel requires detrimental reliance and can potentially bind successors. In Cullen v Cullen [1962] IR 268 IE a father who allowed a mobile home onto his land was estopped from asserting title to that site.

Agricultural licences are short-term hiring contracts, not lettings: conacre is the right to till, sow and harvest without exclusive possession, agistment the right to graze. Some rights of residence also operate as licences; an exclusive right has been treated as creating a life estate, National Bank v Keegan [1931] IR 344 IE. For registered land, section 81 of the Registration of Title Act 1964 deems a right of residence personal and in the nature of a lien for money's worth.

Bare and contractual licences do not bind successors in title. The contrary suggestion in Errington v Errington [1952] 1 KB 290 Persuasive · England was not consistently followed, and Ashburn Anstalt v Arnold [1989] Ch 1 Persuasive · England restated that a contractual licence binds no third party absent a constructive trust.

Lease or licence

The Irish test combines three factors: an intention to create the relationship of landlord and tenant; exclusive possession; and circumstances in which rent is ordinarily provided for, rent being the feature emphasised by section 3 of the Landlord and Tenant Law Amendment Act, Ireland, 1860. Hunt J framed the question as the degree of control that lets an occupier call the place his own, a tenant being one able to exclude the landlord from possession for the duration of the arrangement.

Labels are indicative, never decisive. Whipp v Mackey [1927] IR 372 IE · Supreme Court held that the words landlord, tenant and rent did not make the arrangement a lease. Conversely, in Irish Shell & BP Ltd v John Costello Ltd [1981] ILRM 66; [1984] IR 511 IE · Supreme Court a self-described licence of a petrol station was a lease: the occupier held the keys and controlled the pumps, the grantor kept only a right of inspection on notice, and the majority treated the equipment rental as rent.

Exclusive possession is necessary for a lease but not sufficient. In Gatien Motor Co Ltd v Continental Oil Co of Ireland Ltd [1979] IR 406 IE · Supreme Court a one-week caretaker arrangement left the former tenant in exclusive possession but paying no rent, and no tenancy was inferred. Smith v CIE [2002] IEHC 103 IE · High Court went the other way on a ten-year retail licence.

Why the family home needed statute

The home was commonly conveyed into one spouse's name, leaving the other open to being sold or mortgaged out of it. Equity helped only where a resulting trust could be built from direct or indirect financial contributions; childcare and other non-economic contributions were not recognised, nor were improvements absent agreement. Walsh J described the 1976 Act in Bank of Ireland v Purcell [1989] IR 327 IE as remedial social legislation protecting the non-owning spouse.

The Act does not change ownership. It confers no automatic co-ownership, and legislation that would have done so failed constitutional scrutiny in Re Article 26 and the Matrimonial Home Bill, 1993 [1994] 1 IR 305 IE · Supreme Court. What it creates is a veto over dispositions.

Statutory basis

Section 3(1) of the Family Home Protection Act 1976 makes void a purported conveyance of any interest in the family home by one spouse, without the prior consent in writing of the other, to anyone except that other spouse. Section 2(1) defines the family home as, primarily, a dwelling in which a married couple ordinarily reside, and also one in which the spouse whose protection is in issue resides or resided before leaving.

Conveyance is defined broadly: a mortgage, lease, assent, transfer, disclaimer, release or any other disposition otherwise than by will or donatio mortis causa, and an enforceable agreement to make one. It catches the contract for sale as well as the deed, and a mortgage or charge. It does not reach a unilateral third-party act such as registration of a judgment mortgage: Murray v Diamond [1982] ILRM 113 IE. That ground now belongs to sections 30 and 31 of the Land and Conveyancing Law Reform Act 2009.

Section 3(3) is the exception: no conveyance is void by reason only of subsection (1) if made to a purchaser for full value, a purchaser being one who in good faith acquires an estate or interest. That good-faith requirement is why the exception is treated as requiring absence of notice, and why it is hard to invoke: a buyer or lender applying proper conveyancing standards is usually fixed with notice. Section 3(4) puts the burden of proving validity on the person alleging it.

Section 4 lets the court dispense with a consent, but only where withholding it is unreasonable, having regard to the needs and resources of the spouses and dependent children and to any alternative accommodation offered. Section 3(8), inserted by section 54 of the Family Law Act 1995, bars proceedings to void a conveyance after six years from its date, unless the spouse has been in actual occupation from immediately before that period expired until proceedings issue.

Civil partners have a mirror regime in section 28(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, voiding a conveyance of the shared home without the other civil partner's prior written consent. Cohabitants have no equivalent: a qualified cohabitant's reliefs are discretionary and may be opted out of.

Key authorities

• Irish Shell & BP Ltd v John Costello Ltd — control of the premises, not the label, decides it; the leading Irish authority for treating a self-described licence as a lease.
• National Maternity Hospital v McGouran [1994] 1 ILRM 521 IE · High Court — control of opening hours, safety and the shop's location left the occupier without exclusive possession, so the arrangement was a licence.
• National Irish Bank Ltd v Graham (No. 2) [1995] 2 IR 244 IE · Supreme Court — family home does not extend to a house the couple merely intended to occupy; reading in that limb would be legislating.
• Havbell DAC v Dias [2018] IEHC 175 IE · High Court — premises let commercially through a short-term letting platform, alongside residential occupation, fell outside the family home definition.
• Nestor v Murphy [1979] IR 326 IE · Supreme Court — section 3 does not apply where both spouses join in the conveyance. An attempt to distinguish it failed in Irish Nationwide Building Society v Raftery [2012] IEHC 352 IE · High Court.
• Bank of Ireland v Smyth [1995] IESC 3; [1995] 2 IR 459 IE · Supreme Court — a valid consent needs full knowledge and an opportunity to take independent legal advice.
• Allied Irish Banks plc v Finnegan [1996] 1 ILRM 401 IE · Supreme Court — a bank asserting the section 3(3) exception must prove it. Compare Bank of Ireland Mortgage Bank v Murray [2019] IEHC 234 IE, where a charge one spouse had not executed was void and the loan treated as unsecured.

How it is examined

Two cues. An occupier whose position rests on a label, a permission or a licence agreement raises the lease or licence question, set as an essay on the coherence of the Irish approach and inside problem questions about a cottage, shop unit or forecourt. A conveyance, mortgage or charge of a dwelling that only one of a married couple signed raises section 3, regularly set as an essay on alienation of an interest without consent.

Order of attack on lease or licence: identify what was granted; test intention objectively, including how the parties behaved afterwards; ask whether the occupier could exclude the grantor. On the family home: is it a family home within section 2; is the transaction a conveyance; was there prior written consent, and was it fully informed; if not, does the purchaser-for-full-value exception or the six-year bar save it; and who bears the burden.

Related Land Law notes: leases and forfeiture · Irish Shell & BP Ltd v John Costello Ltd · judgment mortgages and fraudulent dispositions · all free Land Law notes.