Errington v. Errington and Anor. (1952) 1 All E.R. 149. At page 154 line D. Denning, L.J. stated that:- “The difference between a tenancy and a licence is, therefore, that in a tenancy an interest passes in the land, whereas in a licence it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said be a tenant, albeit only a tenant at will: See Doe D. Tomes v. Chamberlain (4), Lynes v. Snaith (2); whereas if he had not exclusive possession he was only a licensee; Peakin v. Peakin (5) This test has, however, often given rise to misgivings because it may not correspond to realities.” And at p. 155 Denning went further to state:- “The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee.”
CUSTOMARY TENANT CANNOT BE IN POSSESSION WHERE LANDLORD NOT IN POSSESSION
A customary tenant is a tenant from year to year liable under Customary Law to pay rents or tribute to the landlord for the use of the land and barred from alienating the land or disputing the title of the landlord without consent. He cannot be in possession if his landlord is out of possession...