Protecting 'possessory licences' over land against interference by third parties

A new type of claim is emerging in the common law world. It allows some contractual licensees to sue third parties — other than the licensor and their successors in title — who interfere with the exercise of the licence. These actions are developing haphazardly. They are often said to be unjustified. This article contends that these difficulties can be overcome by a close analysis of the principles-based reasoning behind the claims. Contrary to the mistakenly wide readings of them that have prevailed to date, they should only apply to licences insofar as they entitle the licensee to be in possession. They should merely cover the interval between when possession can be, and is, taken. Only conduct that is a tort to the land and that materially impedes the claimant from taking possession should be actionable. Thus understood, these actions amount to a small and justified incursion into the traditional lease-licence distinction.