NAHAS v. LOCAL 905 RETAIL CLERKS INTERNATIONAL ASSOCIATION (1956)

Respondents' petition for rehearing presents arguments built upon the assumption that Nahas was a tenant or a co-tenant in possession of the parking lot, sidewalks, etc. They are misplaced. A mere right to use in common with others does not rise to that dignity.

The criterion of lease or license is presence or absence of a right of exclusive possession in the grantee, exclusive as to the landlord as well as others. When that is absent the agreement spells a license rather than a lease. Moreover, the fact that the license is not terminable at will or is coupled with a lessee's interest, does not destroy its character or convert it into a lease. 1 Tiffany on Real Property (3rd Ed.) § 79, p. 117: ‘A tenancy involves an interest in the land passed to the tenant and a possession exclusive even of the landlord except as the lease permits his entry, and saving always the landlord's right to enter to demand rent or to make repairs. A mere permission to use land, dominion over it remaining in the owner and no interest in or exclusive possession of it being given, is but a license. * * * Such a person has not the possession of the land, this remaining in the licensor, and he has not, it seems, any interest in the land which he can assert as against a third person, that is, has no rights in rem.

‘The question whether an instrument is a lease, creating an estate in favor of another and the consequent relation of tenancy, or is merely a license, is one properly of the construction of the language used, as showing an intention to give possession vel non. That this is so has been quite often recognized.’

Kaiser Co. v. Reid, 30 Cal.2d 610, 619, 184 P.2d 879, 885: ‘As stated in Von Goerlitz v. Turner, 65 Cal.App.2d 425, at page 429, 150 P.2d 278, at page 280: ‘The test * * * ‘whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license, and this is a question of law arising out of the construction of the instrument.’' (Emphasis added.)'

This test has been accepted for many years in this state, as elsewhere. See Shaw v. Caldwell, 16 Cal.App. 1, 7, 115 P. 941; Covina Manor, Inc., v. Hatch, 133 Cal.App.2d Supp. 790, 793, 284 P.2d 580; 51 C.J.S., Landlord and Tenant, § 6, p. 513; 35 C.J. § 10, p. 954; Tips v. United States, 5 Cir., 70 F.2d 525; Cluett v. Sheppard, 131 Ill. 636, 23 N.E. 589; Bowley v. Fuller, 121 Me. 22, 115 A. 466, 468, 24 A.L.R. 964; Thayer v. Brainerd, D.C.Mun.App., 47 A.2d 787; Mangum v. Milwood, 207 Ga. 501, 62 S.E.2d 836, 837.

Because a licensee has no interest in the land he cannot maintain an action in trespass or ejectment. At the most, he may maintain an action to enjoin or to redress a violation of his right to exercise the license. See Annotation in 139 A.L.R. 1204. The principle is thus stated in Bell Telephone Co. of Pennsylvania v. Baltimore & O. R. Co., 155 Pa.Super. 286, 38 A.2d 732, 733: ‘It is true that a license does not confer a right of possession sufficient to support an action in trespass quare clausum fregit (Tiffany, Real Property, §§ 814, 829), or an action of ejectment. Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173. But a licensee may maintain an action of trespass in the nature of common-law case for any invasion or disturbance of the terms of the license whether by the licensor or by third parties.’

Treated as an action to enjoin interference with plaintiffs' license to use the parking lot and sidewalks the relief which was granted in the present instance was too broad.

The petition for rehearing is denied.

PER CURIAM.