LLB220 Study Guide - Final Guide: Kemal Izzet, Abrasive Blasting, Anzani
Leases:
DEFINITIONS:
Lease: interest in land granted by one person, which provides a right to exclusive possession
for a specific length of time to another person.
Tenant/Lessee: individual being granted the interest
Sublessee/subtenant: right to exclusive possession of part of the premises or for a period
less than that of the head-tenant or headlesse (former tenant)
Landlord/Lessor: individual whom grants the interest, retains a reversion which can be
assigned
Headlease: original agreement between the lessor and lessee
Merger: occurs when one person is entitled to the lease and the reversion – Rye v Rye (page
529)
Coventee: individual whose land receives the benefit
Coventor: individual whose land bears the burden of the covenant
FOCUS: commercial leases
1. Does the lease meet its substantive requirements?
1.a.certainty of duration – Prudential Assurance Co Ltd v London Residuary Body
1.b. exclusive possession – KJRR v Commissioner of State Revenue
2. Does the lead meet its formal requirements?
1.a.Is it old system land?
oNormally must be created by deed – s 23B of Conveyancing Act
oExceptions:
Section 23D(2) – Short term leases
Best rent
Takes effect in possession – interpreted to mean ‘conferring
an immediate right to possession’ (Haselhurst v Elliot)
Not exceeding a term of three years (inc options – Kushner
v Law Society)
Implied periodic tenancies at common law (note effect of s 127 of
Conveyancing Act on implied yearly tenancies)
1.b. Is it an equitable lease?
oMust come to equity with clean hands – Warmington v Miller
oAgreement to grant a lease that requires specific performance to allow for
an adequate remedy– Walsh v Lonsdale
oMay be written but not in compliance with formal requirements
oMay be oral with support of acts of part performance
oEstoppel: if there is detriment caused by reliance on a representation
Must come to equity with ‘clean hands’
Specific performance must be an available remedy
1.c.Is it Torren’s land?
oMust be registered if term greater than 3 years – s 53 Real Property Act
oUnregistered leases are equitable leases unless:
They comply with s 23D(2)
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find more resources at oneclass.com
Implied periodic tenancy at common law
In these cases the lease is the same as old system land
3. What types of tenancies exist?
oFixed term tenancy
oPeriodic tenancy
oImplied periodic tenancy
Yearly implied tenancies
Other implied tenancies
oLegal lease for fixed term
oEquitable lease for fixed term
oTenancy at will – can end whenever the tenant wishes
oTenancy at suffrage – can end whenever the landlord wishes
4. What express covenants are contained within the lease?
oRepair covenants:
oTenants duty to repair:
Disrepair at commencement – tenant in breach (Proudfoot v Hart)
Applies where damage was caused by previous tenant (Bailey v J
Paytner)
Not required to repair:
Serious damage from fire, lightning or earthquake, but can
be excluded with clear words (Matthey v Curling)
No duty to improve or renew (Graham v Markets Hotel
Pty)
No duty to fix an ‘inherent defect’ (Graham)
oLandlords duty to repair:
Dependant on notice (O’Brien v Robertson)
Liable if notice was received by someone other than lessee
(McGreal v Wake)
No distinction between obvious and hidden defects
oCovenants against subletting or assignment:
oAbsolute:
Prohibits lessee from changing the lease – construed against
landlord (Field)
Doesn’t restrict the right to sublet part of land (Cook v Shoesmith)
Lessee is entitled to grant revocable licenses (Stening v Abrahams)
Breached if lessee assigns (Marks v Warren)
Acceptance of rent constitutes implied consent (Hyde v Pimley)
oQualified:
Limits – requires written consent
Cannot be withheld unreasonably – Section 133B of Conveyancing
Act
Relevant considerations in determining reasonableness – J A
McBeath v Jenkins:
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Effect on future lettings of the property
Whether a reasonable person would anticipate an adverse
effect
Examples of unreasonable:
Proposed use (though lawful) was likely to be unattractive
to investors – International Drilling Fluids v Louisville
Investments
Tenant was responsible & purchased the business –
McKenzie v McAllum
Examples of reasonable:
Necessarily involve a breach of the headlease – Barina
Properties
Proposed assignees references were unsatisfactory –
Shanly v Ward
5. What covenants are implied by statute?
oCovenant to repair – Section 84(1)(b) of Conveyancing Act:
oMust yield the premises in ‘good and tenantable’ repair, in consideration
of its state at the beginning of the lease
o‘…having regard to the age, character, and locality…’ – Proudfoot v Hart
oNot in breach for pre-existing damage
oCovenant to pay rent – Section 84(1)(a) of Conveyancing Act:
oPayable in arrears, at the end of a specified period (unless otherwise
stated)
oIf premises are destroyed by fire, flood, lightning, storm, water or war
damage the rent will abate until damage is repaired
oCovenant to allow the landlord to inspect and repair – Section 84(1)(a) of
Conveyancing Act:
oTwice a year, at a reasonable time, with two day’s notice
oLandlord may give a notice specifying repairs to be done in a reasonable
time – if not completed, landlord may enter and repair (s 85(1)(b))
oStructural repairs or those required by statute may be completed at any
time (s 85(1)(c))
oCovenant to enter for non-payment of rent – Section 84(1)(d) of Conveyancing
Act:
oImplied right to re-enter if rent hasn’t been paid for at least one month
oCovenant to enter for breach of non-rental covenants – Section 84(1)(d) of
Conveyancing Act:
oMay enter for the breach of any covenant (express or implied) ate it has
been breached for a period of two months
oOR failed to repair the premises within a reasonable time (usually 3
months)
oCan all be altered by agreement – Section 74(2) of Conveyancing Act
6. What are the common law lease covenants?
oCovenants imposing obligations on the landlord:
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find more resources at oneclass.com
Document Summary
Lease: interest in land granted by one person, which provides a right to exclusive possession for a specific length of time to another person. Sublessee/subtenant: right to exclusive possession of part of the premises or for a period less than that of the head-tenant or headlesse (former tenant) Landlord/lessor: individual whom grants the interest, retains a reversion which can be assigned. Headlease: original agreement between the lessor and lessee. Merger: occurs when one person is entitled to the lease and the reversion rye v rye (page. Coventor: individual whose land bears the burden of the covenant. 1. a. certainty of duration prudential assurance co ltd v london residuary body. 1. a. is it old system land: normally must be created by deed s 23b of conveyancing act, exceptions: Takes effect in possession interpreted to mean conferring an immediate right to possession" (haselhurst v elliot) Not exceeding a term of three years (inc options kushner v law society)
