Use of School Premises-Why a Licence, Not a Lease, Should Be Used By Schools

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One of the issues which face schools regularly is a request for the use of school facilities outside of school time for community education and recreation purposes.

use-of-school-premises

Circulars 16/05 and 18/05 from the DES encourages the granting of such use where possible, outside of school hours, while recognising that the decision ultimately rests with the Board of Management or Trustees of the school.

The DES also recommends that

  1. There is a licence agreement between the Board and the group using the school premises

  2. The agreement with users of school facilities should be underwritten by a contract. This contract should be reviewed regularly

  3. Any agreement should be in conformity with the lease for the building.

  4. There is an arrangement in place to cover additional costs for insurance, heating lighting, cleaning and maintenance of the areas used by the groups

  5. All external groups using the school have public liability cover and adequate insurance. Insurance certificates should be presented to the Board of Management annually.

  6. Health and safety issues are addressed

  7. Child Protection Guidelines are followed.

(Source: Circulars 16/05 and 18/05)

The Insurance Position

A common insurance policy held by many schools is the Allianz Custodian School Protection Policy.

Allianz’s Guide to Insurance, Safety and Security in the School states:

What about groups or persons using School property?

The policy protects the Board in respect of its (i.e. the Board’s) legal liability to users of the School Property. Claims usually arise as a result of defects in the premises.

The group or other persons, however, can incur their own liabilities arising out of their activities and they should therefore have their own insurance to cover any such liabilities.

 

What if the groups or persons using the School Property do not have or cannot get insurance?

It is unlikely that they cannot obtain insurance.

 

What they generally mean is that the cost of insurance cover appears very expensive or is outside their financial means.

 

Allianz recognises that Boards rely, to some extent, on the finances generated from outside groups or persons using the School Property. The policy, therefore, has been extended to include cover for these groups and persons but the cover provided is limited.

 

For example:-

1: cover applies only to activities which take place at the School Property. Any activities undertaken elsewhere therefore are not covered.

2: Additionally the extension provided under the Custodian School Protection Policy does not provide cover in respect of accidental Bodily Injury loss or damage giving rise to a claim made by any member of the group or organisation against another member of the group or organisation

 

Consequently all outside groups or persons are advised to arrange their own separate insurance cover.

 

Licence for Use of School Premises

A licence should be used for the use of school premises for the following reasons:

  1. A licence, unlike a lease, does not transfer any interest or estate in the land to the licensee
  2. A licence is a ‘mere permission’ to use the premises
  3. A lease confers statutory rights and protections whereas a licence confers none of these.

Should a dispute arise as to whether a user of a premises has a licence or a lease, a Court will look at what the parties intended, not what they say afterwards. So, if an agreement has all the requirements of a tenancy/lease, the parties cannot insist afterwards that they only created a license.

Types of Licence

There are a number of different types of licence including:

  1. A bare licence which is a mere personal permission
  2. A licence coupled with an interest. This type of licence can be transferred to third parties.
  3. A contractual licence-this licence is created by a contract and the power to revoke the licence will be contained in the terms of the contract.

A good licence agreement will state that the rights contained in it are personal to the licensee and the licensee will undertake to cooperate with the licensor in the management and control of the property.

Schools need to be aware that entering legal relations which involve occupancy of school premises and on-going payments need to be clear in advance as to what the relationship is.

By Terry Gorry Google+

Education Law Brochure

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