LLB220 Study Guide - Final Guide: Lease
LEASES (PT 2)
Enforceability of covenants
Against original tenant?
- Express terms of lease
- Problems?
Terms implied by statute
- Ahern v LA Wilkinson (Northern)
Limited [1929] St R Q 66
Against assignee of tenant?
- Privity of estate between the
landlord and the tenant (Spencer’s
Case (1583) Co Rep 16A); and
- Lease covenant touches and
concerns the land
What does ‘touch and concern the land’
mean…?
Privity of estate
Parties must stand in a landlord/tenant
relationship
- Assignment vs sublease
oAssignment of lease: tenant
assigns whole interest that
s/he owns
oSublease: a lesser part of
tenant’s interest
- No privity of estate between
landlord and sub-tenant
Privity of estate is a legal doctrine
Therefore, there is NO privity of estate
where:
- The lease is an equitable lease; OR
- There has been an equitable
assignment of a legal lease
The original lease must be legal and the
assignment must be legal
- See Old Papas Franchise Systems
Pty Limited v Camisa Nominees
Pty Limited
Covenant must touch and concern the land
- P&A Swift Investments v
Combined English Stores Group
Plc [1989] AC 632
- Approved by the HCA in
Gumland Property Holdings Ltd v
Duffy Brothers Fruit Market
(Campbelltown) Pty Ltd (2008)
234 CLR 237 (see at [74])
“Touches and concerns the land”
Examples:
- Pay rent
- Repair
- Insure against fire
- Not assign without the landlord’s
consent
- To renew lease
Note position of registered leases and
registered assignments of leases under
Torrens: Real Property Act ss 51, 52
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Therefore, there is no privity of estate where: The lease is an equitable lease; or. There has been an equitable assignment of a legal lease. The original lease must be legal and the assignment must be legal. Duffy brothers fruit market (campbelltown) pty ltd (2008) Note position of registered leases and registered assignments of leases under. Privity of estate between the landlord and the tenant (spencer"s. Lease covenant touches and concerns the land. Assignment vs sublease: assignment of lease: tenant assigns whole interest that s/he owns, sublease: a lesser part of tenant"s interest. No privity of estate between landlord and sub-tenant. Common to have a term saying can only use the premises for a certain purpose. Absolute: then landlord entitled to enforce according to its terms, does not have to act reasonably. Subject to landlord"s consent (i. e. a qualified prohibition on change of use: section 133b(3) of the ca, express term in lease cannot override.
