License Distinguished

A license is oral or written “permission” to enter the land of another person for a particular purpose. A license is fully revocable by the grantor of the license. In addition, unlike an easement in gross, a license is not an interest in land. It merely allows the license holder to use the land in the manner sanctioned by the owner. For example:

Tom owns Catacre and has a neighbor named Jerry. Since Jerry’s property is very small, there is no room for Jerry to put his brand new barbecue grill. So, Jerry asks Tom if he could use Tom’s property to store his grill and if he could come over every Sunday during the summer to use the grill to cook supper for his family. Since Tom is such a nice guy and has always gotten along with Jerry, Tom agrees. On the first Sunday night after the agreement, Tom changes his mind and demands that Jerry remove his grill from Tom’s premises. Tom has every right to do this and Jerry must remove his grill immediately in spite of the fact that Tom is breaking his promise. The permission that Tom gave Jerry only constituted a license. A license is generally revocable by the grantor at any time, for any reason.

Of course, it is not always clear what constitutes the creation of a license and what constitutes the creation of an easement in gross. Sometimes the same language can be interpreted both ways. In such cases, courts will interpret the ambiguous language as creating a license, rather than an easement. This is based on the general principle that restrictions on land are disfavored. A binding restriction on land will only be inferred if the intent is clear on the part of the grantor. For example:

Tom owns Catacre and has a neighbor named Jerry. Since Jerry’s property is very small, there is no room for Jerry to put his brand new barbecue grill. So, Jerry asks Tom if he could use Tom’s property to store his grill and if he could come over every Sunday during the summer to use the grill to cook supper for his family. Tom agrees and writes a note to Jerry that says, “I hereby grant you the permanent right to use my property for the storage of your grill and to hold weekly barbecues on my property.” This language can be interpreted as being merely a grant of permission (a license). Or, it can be interpreted as the transfer of an easement in gross from Tom to Jerry. Unless Tom’s intent to transfer an easement is made clear by the surrounding circumstances, the court will probably find this to be a grant of a mere license. Therefore, Tom can revoke the permission at any time, the note and the note’ s language notwithstanding.

As we discussed earlier, a license is generally fully revocable by the grantor. However, there are two situations in which a license can become irrevocable:

1. Intent to make it irrevocable: If the grantor specifically states that his or her intent is to make the license irrevocable, then he or she will not be able to revoke the license.
2. Estoppel: If the holder of the license substantially and detrimentally relied on the license grant, and it would be unfair to now pull the rug out from under the grantee of the license, the license can become irrevocable. Note though, that some jurisdictions do not recognize this rule and hold that licenses cannot become irrevocable by estoppel.

Tom owns Catacre and has a neighbor named Jerry. Since Jerry’s property is very small, there is no room for Jerry to put his brand new barbecue grill. So, Jerry asks Tom if he could use Tom’s property to store his grill and if he could come over every Sunday during the summer to use the grill to cook supper for his family. Since Tom is such a nice guy and has always gotten along with Jerry, Tom agrees. In reliance of this license, Jerry spends $1,000 on a new grill and spends another $1,000 to hire workers to install the grill as a permanent fixture on Tom’s property. During the installation, Tom calmly sits back and watches Jerry’s workers install the grill. As soon as the installation is complete, Tom changes his mind and orders Jerry to remove the grill from his property. In this case, it is likely that a court would hold that the license is irrevocable because of Jerry’s detrimental reliance on the license.

Of course, irrevocable licenses are very similar to easements in gross. The difference is often one of duration. An easement that is conveyed without language that limits its duration is presumed to last forever. An irrevocable license on the other hand, will usually only last as long as is necessary to prevent injustice. Thus, in the previous example, Tom’s license to Jerry might only be irrevocable until Jerry has gained a benefit from the easement that fairly compensates him for the money he spent in reliance of Tom’s promise.

In addition to the usual method for creating a license; permission being granted by the owner of the property; a license can also be created when, for some reason, the grant of an easement fails. If the parties intended to create an easement, but the conveyance was legally insufficient to create the easement, for whatever reason, the result will be a fully revocable license. For example:

Jack conveys to Jill an easement, allowing Jill the use of the Hill for fetching pails of water. The duration of the easement is to be perpetual. However, the parties do not put this easement in writing. As we discussed earlier, under the Statute of Frauds, a conveyance of an easement for longer than one year must be in writing to be enforceable. Therefore, this conveyance is not enforceable. Instead, Jill has a license to go up the Hill to fetch a pail of water. However, Jack can revoke this license at any time.