This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
That one who is tenant under a lease has the possession of the land serves to distinguish him from a licensee, that is, a person to whom is given merely permission to use the land for a specified purpose. 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, he has no rights in rem.12
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.13
One case of a license which is particularly susceptible of confusion with the relation of tenancy is presented by the ordinary "lodging agreement." The lodger is given a license to use a certain room, to the exclusion of other persons, but he is not given the legal possession of the room so that he could maintain ejectment or trespass. The possession remains in the owner or tenant of the house, who has the right freely to enter the room, by himself or his servants, provided he does not interfere with the reasonable use thereof by the lodger, and if he did so interfere, the lodger's only mode of redress would be by regarding the interference a breach of the agreement. Such a case is to be distinguished from an agreement giving the possession of a room, or set of rooms, to another. Such an agreement properly involves a lease, and the lessee could bring ejectment or trespass in case his possession is disturbed.14
11. Post Sec. 349.
12. Post Sec. 349.
13. Ferris v. Hoglan, 121 Ala 240, 25 So. 834; Owen v. Doty, 27 Cal. 502 per Rhodes, J., Knight v. Indiana Coal & Iron Co., 47 Ind. 105, 17 Am. Rep. 692; De Montague v. Bacharach, 181 Mass. 256, 63 N. E. 435; Jones v. Donelly, 221 Mass. 213, 108 N. E. 1063; Boone v. Stover, 66 Mo. 430; Stockham v. Borough Bill Posting Co., 144 N. Y. App. Div. 642, 129 N. Y. Supp. 745; Callen v. Hilty, 14 Pa. 286.
For cases of a contrary tendency, see 1 Tiffany, Landlord & Ten. Sec. 7.