However, the use of a licensing agreement instead of a lease agreement does not completely exclude all possibilities of a dispute between the owner-conedantle and the licensee. Whether the “self-help” used was peaceful (and therefore legal) or forced (and therefore illegal) is always a possible contentious issue. However, if there is a valid licensing agreement, the owner licensee is not required to reinstate the deposed licensee on the premises, even if it turns out that the self-help used is binding and un pacified. In New York, the licensee`s only recourse is the triple damages that RPAPL 853 provides for violent ejection. In the meantime, the owner`s licensee is free, before a court ruling, to re-elect the use of the premises to another licensee. The courts have identified as leases licences for which one or more of these characteristics are either completely absent or not sufficiently re-re-elected to the powers of the licensee. However, the less control the taker has, the more likely it is that the agreement is a licence, because a licence does not offer autonomy, but simply allows a party to “provide services within a company in premises owned by another company or operated by another, which has the power to oversee the mode of transfer of services.” Nevertheless, it was found that maintaining control of the prices charged by the licensee, the periods of operation in the space granted and even the choice of the taker`s staff did not guarantee that the agreement would be considered a licence and not a lease, since these controls “could not reasonably be required of a careful landlord vis-à-vis a leasing taker for [each business]. This is a kind of rental contract, specifically called a license that you (the licensee) use to rent part of an office space to another person (the licensee). Legally, this type of agreement is classified as a license and not a lease agreement. It is different from a lease or sublease contract, because the taker does NOT have exclusive use of the territory or part of the territory. For example, they may share a kitchen, a rest room or other common areas. It is therefore necessary to draft appropriate licensing agreements carefully and, to that end, there must be close cooperation between lawyers and their clients who wish to set up a licensing system.
Communication with the customer about the risks and benefits of using a licensing system will be essential. In addition, lawyers must consider the client`s objectives and determine the initial cost that the client is willing to accept to offer the type of “full service” agreement that will pass the “licensing test” of a court.