Real property, real impact: throwing off mediaeval chains or heresy?

Article by Harriet Holmes, published 28^th September 2026

This article was originally published by Estates Gazette here.

The decision in Dutton

The facts of the case are relatively simple. Manchester Airport was building a second runway and needed to fell trees on woodland owned by the National Trust as they would obstruct the flight path. The National Trust was prohibited by statute from giving “exclusive possession”of its woodland to an occupier. It therefore granted the airport a licence permitting it to “enter and occupy” the woodland in order to undertake tree felling works. Before the airport’s contractors entered occupation of the woodland, protestors trespassed on the land with the intention of obstructing the tree-felling works.

Manchester Airport sought, and obtained, a possession order against the protestors. The question on appeal was whether the airport had sufficient interest in the woodland by virtue of its licence to enable it to bring a possession claim.

Chadwick LJ dissented – he would have allowed the appeal. Laws LJ, with whom Kennedy LJ agreed, identified the principal objection to the grant of an order for possession to a licensee who was not yet in occupation as being, “that it would amount to an ejectment, and ejectment is a remedy available only to a party with title to or estate in the land; which as a mere licensee the airport company plainly lacks”. In Laws LJ’s view, this proposition represented the “old” law in which he “heard the rattle of mediaeval chains” and there was a “logical mistake” in the notion that, because the old action of ejectment was available only to estate owners, the new remedy of an action for recovery of land was not available to licensees who did not enjoy possession.

In his view, the true principle was that “a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys”.

For Kennedy LJ, the key factor was that the airport “does have a right to possession of the land granted to it by the license. It is entitled to ‘enter and occupy’ the land in question. The fact that it has only been granted the right to enter and occupy for a specific purpose and that… the grant does not create an estate in land giving [the airport] a right to exclusive possession does not seem to be critical”.

Accordingly, by majority, the airport’s order for possession was upheld.

The Dutton legacy: practical utility and subsequent decisions

The decision has been relied on to facilitate the granting of possession orders in a variety of cases where the claimant seeking the order had no title to an estate in land. To give two examples:

1. In Global 100 Ltd v Laleva [2021] EWCA Civ 1835; [2022] EGLR 2 a property management company, Global Guardians, had agreed to provide “property guardian services” to the freehold owner of a building. Global Guardians subsequently granted Global 100 a right to grant temporary, non-exclusive licences to persons selected by them to be guardians and purported to confer on Global 100 “sufficient interest” in the property for Global 100 to bring claims for possession against any such guardians if required. Global 100 subsequently brought, and obtained, an order against one of the guardians, Maria Laleva, following termination of her licence. One issue which arose was whether Global 100 was entitled to an order for possession. The Court of Appeal held that it was for two reasons: first, a contractual “right to have possession” granted to Global 100 by the landowner was sufficient and, second, an estoppel operated to prevent the licensee from denying the title to that “right to have possession”.
2. In Walton Family Estates Ltd v GJD Services Ltd [2021] EWHC 88 (Comm), the claimant was the freehold title owner of an aerodrome but had, in fact, let the land to a tenant who was in exclusive possession. The lease of the aerodrome was held to have been granted on terms which reserved to the claimant the right to occupy the land within the aerodrome for certain purposes. Thus, applying the reasoning in Dutton, the claimant was held to have sufficient interest to enable the claimant to obtain an order for possession against trespassers within the aerodrome.

The practical utility of the decision extends more widely. It is capable, for example, of enabling a developer or building contractor (with contractual rights to occupy a development site for the purposes of carrying out works) to obtain an order for possession over the site, even before they have entered into occupation or commenced the works. Further, it may enable a hotel management company with mere contractual rights to occupy the hotel (but who does not
hold any title) to obtain an order against a hotel guest who refuses to leave.

Why the decision remains controversial

The decision has nevertheless attracted criticism. First, the majority in Dutton argued that there is “no respectable distinction, in law or logic” between a contractual licensee who is in and out of occupation, with the result that the airport, a licensee out of occupation, was held to have standing. However, this is thought to be unsound – there is a logical and legal distinction. A licensee in possession has a personal contractual right to occupy which is enforceable against its licensor only, and a basic property right to possession arising from their fact of possession. It is the latter basic property right which is binding on third parties and entitles a licensee in possession to bring a claim in trespass. In contrast, a licensee out of possession will have the same contractual right to occupy but has no such basic property right.

Second, Laws LJ argued that the “new” action for recovery of land should not be shackled by the “old” rules of ejectment, which he considered to be silent on the question of the relief to be granted licensees. The difficulty with this reasoning, however, is that it failed to deal with previous decisions of the courts made after the creation of the “new” action, such as Hill v Tupper ((1863) 2 H & C 121) and Clore v Theatrical Properties Ltd ([1936] 3 All ER 436). In Hill, the equivalent of today’s Court of Appeal had decided that a licensee was not entitled to an order for possession against third parties, albeit the licensor (who held an estate in the property in question) would have been able to. Third, property scholars consider the decision represents an impermissible blurring of the lines between personal and proprietary rights and remedies (eg Swadling, Opening the Numerus Clausus (2000) 116 LQR 354).

Where are we now?

Despite the legal debate and controversy, the Court of Appeal has been given opportunities to overrule Dutton or disavow its reasoning – Mayor of London v Hall [2010] EWCA Civ 817, Alamo Housing v Meredith [2003] EWCA Civ 495 and Global 100 are three examples. These opportunities have not been taken, even in the face of forceful submissions. Dutton is therefore here to stay and seems unlikely to be disturbed unless or until it comes before the Court of Appeal again or the issue finds its way to the highest court.