Comprehensive Notes on Land Law: Test Logistics and the Law of Licenses
Administrative Details: Mid-year Test Structure and Logistics
The upcoming assessment in Land Law is designated as a test rather than an exam, which, while having no practical difference for students during the sitting, impacts the administrative marking period. Students should expect a longer delay in receiving grades compared to other subjects, as one of the markers will be on leave for the first weeks of the marking period. A comprehensive review session will be held at the end of the term in week to reiterate the test format, contents, scope, and to go through practice questions. It is important to note that the test is designed to assess all material covered in both terms, including the weeks of content delivered by Tony at the start of the year and the speaker's subsequent weeks of content. While all material is examinable, every topic may not be covered extensively, and students are expected to perform effective issue spotting to apply the law to hypothetical fact patterns.
The test format for this year consists of questions, which is a departure from previous years which typically featured questions. The total duration for the test is hours ( minutes). The weighting is distributed as follows: two questions are worth marks each, and one question is worth marks. Strategically, students should allocate approximately minutes for each -mark question and approximately hour for the -mark question. The test is "open book," meaning students may bring any printed materials, including textbook, notes, or AI-generated summaries—even up to sheets of paper—though consolidation into a single cheat sheet or outline is highly recommended to save time. No electronic devices are permitted. The exam is a "blue book" assessment, requiring students to handwrite their answers. Due to the physical nature of handwriting for a prolonged period, students are encouraged to practice handwriting to avoid hand cramping during the actual assessment.
Introduction to Licenses in Land Law
Licenses represent a broad and frequently ignored category of land-related rights that must be distinguished from more robust interests like co-ownership, leases, mortgages, and easements. In the context of Aotearoa New Zealand, a prominent example of licenses in action is found in ski fields. Most ski fields, such as Mt. Hutt and Cardrona (whose concession was up for renewal in ), operate on Crown land managed by the Department of Conservation (DOC). These operators do not own the land but instead hold a "package" of rights conferred via concessions. This package typically includes leases for specific buildings, easements for access, and a broad license to operate on the land. Licenses permit activity on land that would otherwise constitute a legal trespass.
A license is legally defined as permission granted by the occupier of land to a person to do something on that land which would otherwise be a trespass. A critical distinction is that a license is not an estate or interest in land; it is a personal interest rather than a proprietary interest. They do not confer property rights and are generally considered "flimsy" at common law because they do not bind third parties and are easily revocable. The occupier (who could be the owner, a lessee, or even an exclusive licensee) grants the permission, not necessarily the owner of the fee simple.
Legal Characteristics and Statutory Foundations
Under the Property Law Act, specifically Part , a license is defined as a license to occupy land given in consideration of rent, payment in the nature of rent, or payment in kind of any form. Crucially, the Act confirms the common law principle that these statutory protections do not confer any estate or interest in land upon the licensee. Despite their personal nature, contemporary law has introduced nuances where licenses are part of contractual relationships supported by valuable consideration. In such cases, equitable remedies like estoppel or specific performance may prevent a license from being revoked easily, making them appear more like proprietary interests in specific modern scenarios.
While licenses are generally weak, a licensee who possesses a right of occupation and sufficient control over the land may be entitled to bring a trespass action against third parties. For instance, a ski field operator with a license may maintain a trespass action against a member of the public who enters a private service shed, even if the operator does not own the land, provided they have sufficient rights of control and occupation. This illustrates the flexibility of licenses, which can range from minor social permissions to complex business arrangements.
Categorization: Bare Licenses
The most basic form of a license is the bare license. This is a quintessential common law license characterized as mere permission to enter land, given gratuitously by the licensor without any contract, estoppel, or trust arguments. Examples of bare licenses are ubiquitous in daily life: a social invitation to a friend's house for dinner, a courier (postie) approaching a door to deliver a parcel, customers entering a supermarket to shop, or students attending lectures on the UC campus. These licenses are purely personal and cannot be assigned; an invitation to one person does not automatically extend to their partner if the original invitee is absent.
Bare licenses are subject to revocation by the licensor at any time without any legal formalities. This is evidenced by the historical precedent from which states that a bare license passes no interest nor alters property, but merely makes an action lawful which would otherwise be unlawful (a defense to trespass). If a host tells a guest to leave a party, the license is revoked immediately. The guest is granted only a reasonable duration of time to collect their belongings, such as a jacket, and exit the premises before they become a trespasser. In everyday life, these licenses are usually implied rather than express, as most people do not sign formal documentation before visiting a friend or entering a store.
Implication of Licenses by Law and Public Interaction
An implied license is a factor-based inquiry determined by the specific circumstances of entry. It must be distinguished from a "mere toleration of minor trespass." The most common implied license is the right of a member of the public to enter land for the purpose of communicating with the occupant, such as a neighbor knocking on a door to introduce themselves. Such licenses are always purposive, meaning there must be a genuine and legitimate reason for the entry. Entry for illegal purposes, such as attempted theft, never carries an implied license.
Signage and physical barriers play a significant role in Determining the existence of an implied license. If a property has a locked gate, a barbed-wire fence, or visible signs stating "No Solicitors," "No Trespassing," or "Private Property," it is difficult to argue an implied license exists. These markers explicitly communicate the occupier's intent to bar access. Conversely, the absence of such signage and barriers implies a license for the public to approach the door for legitimate communicative purposes. This reflects a social and legal policy intended to facilitate the reasonable requirements of society.
Licenses in the Context of Law Enforcement
The Supreme Court case of Terraro provides significant clarity on how implied licenses apply to police officers. Generally, police have no greater rights than the general public regarding implied licenses; they have an implied license to enter property to communicate with occupants but must leave within a reasonable time if the license is revoked. However, if police are in pursuit of a suspected offender who enters private property, the law implies a license for the police to enter and pursue that suspect.
In Terraro, undercover police entered a suspected "tinny house" (a house used for selling cannabis) and filmed a drug transaction. The appellant argued the filming made the officer a trespasser. The Supreme Court held that because the occupant had impliedly licensed the public to enter the premises for the specific purpose of buying drugs, the undercover officer—who was there for that exact purpose—stayed within the terms of the implied license. The recording did not exceed the license terms because it didn't require a warrant for that specific interaction. This demonstrates that criminals who open their property to the public for illegal transactions may inadvertently grant implied licenses to undercover law enforcement for those same transactions.
Questions & Discussion
During the lecture, several points were clarified regarding the interaction between licenses and other property concepts. When asked about police entry, it was reiterated that their right to enter without a warrant depends on whether their purpose aligns with a standard implied license (communication) or specific circumstances like pursuit. Regarding squatters, it was noted that squatting or adverse possession in New Zealand typically requires years of continuous, open possession adverse to the owner's interest. A squatter's legal status might fluctuate between being a trespasser and having a tolerated presence until the -year threshold is reached for a claim. If an owner manages to remove a squatter at years, the adverse possession claim fails. The distinction between a license and the toleration of a trespasser is often fact-dependent, based on the communication and relationship between the parties.