Radaich v Smith: 7 Sep 1959

(High Court of Australia) Justice Windeyer said: ‘What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives . . A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass . . All this is long established law: see Cole on Ejectment (1857.
The lessee, having a right to exclusive possession, could, before entry into possession, maintain an action for ejectment. A licensee, if he did not have a right to exclusive possession, could not bring ejectment. A tenant or a licensee who was in actual possession – that is to say, in occupation in circumstances in which he had exclusive possession in fact – could maintain an action for trespass against intruders; but that is because he relied on the fact of his possession and not on his title. ‘

Justice Windeyer
(1959) 101 CLR 209
Cited by:
CitedManchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
ApprovedStreet v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
CitedWatts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 02 November 2021; Ref: scu.247616