Home | Legal Advice | Property Law | Leave and licence

Leave and licence

Shivendra Pratap Singh

Advocate

17/02/2017/ 5:22:59 PM

Reading Time:

A person intentionally treated the lease document as leave and license. He is trying to evict the person in whose favour that lease deed is executed. What are the ingredients of lease and leave & license?

A licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of immovable property, a licence is an authority to do any act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property.

The intention of the parties is the most important fact in the determination of nature of the right in respect of leave and licence. The Bombay High Court in the case of Sohanlal Naraindas v. Laxmidas Raghunath Gadit [(1966) 68 Bom LR 400] has held that the intention of the parties and exclusive possession were important elements to decide actual and real nature of the right in respect of the immovable property.

Exclusive right to use or enjoy the immovable property is the deciding factor whether there is lease or licence. In M.N. Clubwala v. Fida Hussain Saheb [(1964) 6 SCR 642, 653] the supreme court of India emphasised that if the exclusive possession to which a person was entitled under an agreement with a landlord was coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease.

As far as your case is concerned, according to the agreement you have exclusive right to use said premised on the fixed rent. When rent is fixed and interest of the property has transferred in order to say consideration or rent it shall be construed as lease instead of leave and licence. If permission to use land without exclusive possession was alone granted, a licence was the legal result.

Therefore, you have right over the property to use it for the stipulated period mentioned in the agreement. The landlord’s contention that you are a licensee shall not be sustained. You can claim compensation if the lease agreement is terminated before the completion of the stipulated period.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

Can husband gift mother’s property to his second wife?

Question: Can husband gift mother’s property to his second wife? My husband married me after his divorce. He has a daughter from his first marriage and is living with her mom. I have also a daughter. My question is that if my husband gift me his mother's property to...

Can a Builder charge interest on Maintenance?

Question: Can a Builder charge interest on Maintenance, Maintenance security deposit, Prime lending charges (PLC), and Documentation charges? The property was already built and ready to move. But due to a delay in payment, I had not taken possession yet.  Although I...

Recovery of money from elder brother

Question: My elder brother and two sons took a loan from me for agricultural land development and my brother gave surety for that amount. Later my brother's sons did not return money so went into court and in court my brother agreed that “he needed to pay money for my...

Buying property without home loan 

Question: I have booked a flat for Rs. 51000 in Badlapur, Maharashtra. The price of that 1 bhk is 28 lakhs. I am buying that property without a home loan. The builder said you will get possession till the end of July 2022. But the housing website is showing June 2023...

How to recover possession of my land?

Question: Buyer has illegally encroached on my grandfather's property. In this condition please suggest how to recover possession of my land? I am fighting for my grandfather's property. My Grandfather has agricultural land of about 17 acres. In 1988 my grandfather...

Builder address not available for RERA filing 

Question: Can we file a case against the builder if his address is not available for RERA filing? Builder address given during registration not active. How to file a complaint to RERA if the builder address is not found to send a summon. He has left that office but...

Stepmother demanding full share in father’s property

Question: Our property was transferred from pagdi to ownership and no registration was done in the name of my mother. Stepmother is demanding full share in father’s property. My mother died in 1999 and my father take noc from all children. Three sisters and 1 brother...

Kanoonirai has been advising in legal issues since October 2014. You can consult a lawyer through online media, telephonic consultation and video conferencing.

Contact

mail[at]kanoonirai.com
+91-91400-4[nine][six]54