June 6, 2023
A license is a form of contractual agreement such as an agreement which allows the use of property or of a portion of a property by the individual or business receiving the license. It differs from a lease in that a license does not give the same exclusivity of use and assurance of tenure (the right to remain as a tenant) as a lease.
This affects not only evictions from property, but it can also have serious impact in other ways.
In Harvey v. Bingemans Inc., Harvey attempted to sue as a result of an eviction and a charge of trespass. He resided in a trailer parked on a campsite owned by Bingemans. He had signed a “License of Occupation” but in court argued that he was a tenant and entitled to rights under the Residential Tenancies Act, or even the Commercial Tenancies Act.
The Superior Court judge who first heard the case pointed out that this was not Harvey’s permanent home (he owned a house as principal residence) but rather was a seasonal accommodation.
Harvey and the owner had several disagreements leading to a notice of termination of the license of occupation. Harvey responded by saying that the document he had signed, regardless of its title, was in fact a land lease governed by the Residential Tenancies Act. The owner did not accept this.
When Harvey did not leave, the owner called the police. The police informed him that he was trespassing and would have to leave. He used profanity with the police which is never a good idea. He was handcuffed, placed in the back of a police cruiser, and served with an offence notice under the Trespass to Property Act.
Harvey brought an application for a declaration that the police exceeded their authority, conducted an illegal arrest and eviction, and that the Commercial Tenancies Act governed the relationship between Harvey and the owner.
Harvey was not given exclusive possession of his site, so it could not be a lease. As the title of the document indicated, it was a license to occupy.
Neither the Residential Tenancies Act nor the Commercial Tenancies Act applied. The terms of the license to occupy provided for immediate termination upon breach of any of the rules and regulations of the campground. The application judge found that the owner was entitled to terminate the license of occupation as it did. The Court of Appeal agreed.
- A license is not a lease.
- When it comes to real estate, the key difference is whether or not there is a grant of exclusive possession for a period of time or merely a right to use the property non exclusively.
- Sometimes a document is what it says it is – at least the title given to a document, and the language used in the document, will have a major impact upon its interpretation.
- Unless the license is irrevocable, it can usually be terminated immediately, or alternatively sometimes on reasonable notice.
- It is important to understand whether you are a tenant or a licensee.
- If you are a licensee, it is important to know what your rights are because they are contractual rights not rights under the laws governing landlord and tenant.
- A licensee’s rights maybe very different than the rights of a tenant.
- Two licensees may have very different rights.
- Don’t behave badly. We have written before about how courts favour parties who occupy the moral high ground. There was nothing in Harvey’s behaviour which would give him that status. By behaving badly, he automatically gave his opponent that advantage.
HOW WEILERS LLP CAN HELP YOU
Our real estate practice is not limited to simple buy-sell and mortgage transactions. We do a wide variety of sophisticated transactions involving both commercial and residential properties including leasing and licensing.
Whether your issue is “is this a lease or a license?” or any other issues that are unfamiliar to you, our experienced real estate and commercial lawyers can assist you with understanding the situation, interpreting documents, or drafting new agreements.
We deal with both commercial and residential landlord-tenant matters, and issues of trespass. We appear regularly before tribunals and in Superior Court, and have lawyers who are very experienced in dealing with matters in Provincial Offences Court.
Whether it is a lease or a license, for any land disputes, feel free to give Weilers LLP a call and see if we are the right lawyers for you.