Licence or lease?
As formerly a party, who might now find a remedy as a licensee, was left without a remedy because the only resource then known to his counsel was to force the admission of his right into the category of easements, so now, in the light of our present knowledge, a person may, as in Errington v. Errington, achieve in the character of licensee an object which eluded him as long as he took steps in the wrong direction by asserting an abortive title as lessee. The question, whether an interest is a licence or a lease, is most important, and without some examination of the older cases the modern cases cannot be understood. The oldest case appears to be Hall v. Seabright. X sued Y for trespass to his house; Y pleaded that X gave him a licence to occupy until midsummer if he so wished. But the court seems to have been of opinion that the defendant must have had a lease or nothing, and there is no such thing as a lease whose existence depends on the will of one party. Professor Hargreaves cites this case as authority for the familiar proposition, recited at the beginning of this article, that “parties cannot by their mere intention vary the legal consequences of their own acts.” The moral would seem to be that even an abortive lease cannot be interpreted as a licence. He maintains that it was not until Errington v. Errington that a person admittedly in exclusive possession of land was denied a legal or equitable title to the land itself, and relegated to the position of licensee, which was elevated for his protection to give him advantages as good as those he would have enjoyed had such a title been attributed to him.