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18 Adel. L. Rev. 213 (1996)
Contractualisation and the Lease-Licence Distinction

handle is hein.journals/adelrev18 and id is 217 raw text is: Nicholas Shaw*

lease-licence distinction, which is essentially one between proprietary rights
to land and other (frequently contractual) rights, placed in a particularly difficult
factual context, has proved remarkably resilient despite its problematical nature.
r5.Although courts in other common law jurisdictions have shown signs of
weakening, Australian courts have rigidly maintained the distinction between the lease and
the licence, the proprietary and the non-proprietary, the in rem and the in personam.
At the same time, however, the factor underpinning that distinction, namely the proprietary
nature of the interest granted by a lease, has come under review. Leases are well known as
possessing dual natures both as contracts and as conveyances of a term of years. Over the
last decade or so there has been a marked trend towards the contractualisation of leases,
namely the favouring of the contractual nature of the lease and a subversion of the
proprietary side.
I will argue that in many respects the movement to contractualisation has taken place
without an adequate conceptual framework to explain the subversion of property doctrines.
As the law presently stands, it is difficult to see upon what basis that subversion has taken
place, and hence its extent and applicability to other areas of the law which depend upon
proprietary doctrines.
In particular, it is of interest to see to what extent the distinction between contractual
licences and leases can survive the conversion of the latter into, essentially, a refined form
of the former.
The structure of this article is as follows. First, I will outline the traditional distinction
between leases and licences and highlight some interesting factors upon which that
distinction is based. Secondly, I will examine the contractualisation developments, with
BA (Juris), LLB (Hons), LLM (Commercial) Candidate, University of Adelaide Law
School, LLM Candidate, Columbia University School of Law, New York City. This paper
was prepared as part of the Landlord and Tenant subject in the Master of Laws programme,
University of Adelaide Law School. Thanks are owed to Professor Adrian Bradbrook, who
convened that subject and also offered helpful comments, and to Dr Judith Gardam. The
views expressed herein do not reflect those of any other person.

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