LAW 1506 Lecture Notes - Lecture 6: Pastoral Lease, Nuisance, Gumtree
23 May 2018
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STEP ONE: is there a lease, and what type is it?
1. Both forms only valid if in writing s 26 LPA; or Use doctrine of part performance: conduct
evidence of contract if it is ‘unequivocally referable’ to alleged contract- no other explanation-
performed BECAUSE of c* Regent v Millett
a. Legal
i. If over one year: must be registered under the Torrens system s 116 RPA
ii. If under one year: no need to be registered s 69(h); ex
b. Equitable (If not registered (forgot/ under one year))
i. If lease isn't registered, but a contract still exists- equity looks on what was done as that
what ought to be done- enforce the recognised property right that has been contracted for
- gives 'equitable lease'
1. as good as a legal lease as long as no 3rd parties Walsh v Lonsdale ap
2. Oral S 30(2) all if less than three years (incl periodic) but subject to registration above
STEP ONE.1: Fixed term; periodic; at will; at sufferance; pastoral?
A. Fixed term: Certain amount of years; for one's life
i. Exclusive possession
1. Lease must provide EP, entitling leasee to exclude others (strangers or lessor) from
property
a. Indicia
i. determined by reference it the express rights granted in the contract Radaich
v Smith must exhibit a clear and plain intention to be exclusive
• Reservation of the Ls right to re-enter premises
• Leasee's right to quiet enjoyment
ii. If no express terms- consider facts to ascertain party's intention
• How L behaved with T
• Ability to T to lock up Turner
b. Usually about what the clause says, but labels do not triumph intention Radaich
i. if no EP, cannot be a lease.
• May be a licence Cowell v Rosehill licence = no exclusive occupation;
personal right; no property right in stadium; contractual damages only
• May be a pastoral lease: do not confer rights to exclusive possession of
the areas on the grantee- crown can still enter land etc Gaudron in Wik
c. Exceptions: may have EP but no lease
i. Family: parties do not intend to create legal relations. Likely a gratuitous
family arrangement.
ii. Employee: uses the employer's premises in the course of their
employment Street
iii. Depends on capacity in which individual occupies premises- if they pay rent/
consideration, suggests their occupation is separate to the relationship/
employment
ii. Certainty of duration
1. Fixed lease must be for an ascertainable period (start date and finish date or
maximum term)
a. Lease for duration of the law not sufficiently certain (Lace v Chantler)
2. Break clauses- longer leases
iii. Rent: if no rent, may be a gratuitous family arrangement
iv. Material terms- certainty of subject matter; individuals
B. If not fixed term-may be periodic: weekly, monthly
i. Creation
1. Express (created by contract or oral agreement); or
2. Implied at law- when no fixed term lease is drafted ; or
• In Turner v York, HCA said that where a T was let into possession pending
finalizing of a draft two year lease, a monthly periodic tenancy would be
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