Kolovsky, Lynch and Allcorn. The opinion of the court was delivered by Allcorn, J.A.D.
[134 NJSuper Page 450] From our review of the record, including the terms and provisions of the agreement between defendant and the United States Department of the Interior,
we conclude that the agreement is a lease rather than a license, and created the relationship of landlord and tenant between the parties; that the lease is for private purposes, and consequently that the interest of defendant is subject to taxation by the municipality by virtue of the Leasehold Taxing Act, N.J.S.A. 54:4-2.3.
The determination of whether a given agreement is a lease or a license depends not upon "what the parties to it choose to call it nor the language, but [upon] the legal effect of its provisions." 3 Thompson on Real Property (1959 replacement), § 1032 at 102. On the one hand, an "instrument is not a demise or lease, although it contains the usual words of demise, if its contents show that such was not the intention of the parties"; on the other hand, the "relation of landlord and tenant may exist * * * although certain collateral matters are contained in the contract of letting." Id. at 102-103.
A license is simply a personal privilege to use the land of another in some specific way or for some particular purpose or act. Id., § 1032; 49 Am. Jur. 2d, Landlord and Tenant, § 5. Describing it as a "very tenuous" interest, Professor Powell likens a license to an "easement at will" whose "ephemeral character * * * precludes any protections of the licensee as against interferences with his use by the licensor." 3 Powell on Real Property, § 404.1 at 382; § 428 at 526.66; 5 Restatement, Property, "Licenses", introductory note at 3113 (1944). In contradistinction, a lease is a grant of exclusive possession to use the land for any lawful purpose, subject to reservation of a right of possession in the landlord for any purpose or purposes "not inconsistent with the privileges granted the tenant." 3 Thompson, supra, § 1032 at 107; Thiokol Chem. Corp. v. Morris Cty. Bd. of Taxation, 41 N.J. 405, 417 (1964).
By the terms of the agreement here under consideration defendant is "authorized * * * to use" a single-family dwelling, and approximately two acres of land adjoining, situated
within the confines of the Delaware Water Gap National Recreation Area and owned by the United States of America, for the period commencing September 15, 1971 and terminating September 1, 1976. According to the testimony of Mrs. Angerman, upon the execution of the agreement she and her husband moved into the dwelling and have been occupying the property as their private residence ever since.
The agreement waived the payment of any cash consideration by defendant. The purpose for which such use and occupancy was granted was stated to be the "rehabilitating, restoring, and the continued maintenance and protection of the improvements." In light of the waiver of cash consideration, it is a necessary and proper inference that the performance by the Angermans of the latter services constitutes the consideration -- otherwise the agreement would be invalid as an ultra vires gift of public property for private use or benefit. This inference draws further support from paragraph I(f) of the rules and regulations forming part of the agreement, requiring "an annual work program defining rehabilitation and restoration projects" to be outlined which, initially, is to be directed toward "rendering the residence useable on a year round basis and protecting all the improvements from further deterioration". By the terms of paragraph II(c) all resulting improvements "become the property of the" government.
In addition to the repair and restoration work on the dwelling defendant agreed to "assist park personnel in the detection and immediate reporting of building, forest or grass fires which may occur on the land in the vicinity," and to "make frequent checks of the other National Park Service property in the vicinity and immediately report any incidents, violations or apparent damage to a representative of the National Park Service." Both undertakings are in the nature of responsibilities of scant burden, representing little more than the verbalization of the customary vigilance and awareness of conditions in his neighborhood employed
by any householder while in occupancy and during his comings and goings. No penalty is provided for nonperformance.
However this may be, it is plain that the agreement granted to defendant the exclusive possession of the residence and the surrounding area. The grant is made "to use" the premises as a private residence, without any words or provisions in derogation of the right to use and occupy exclusively, other than the right of the public to use any existing and newly established roads and trails on the land. Were the grant not one of exclusive possession, there would have been no need for the government ...