66 Leases- Topic 7 What is a Lease? Lease is a contract to confer exclusive possession for a definite term o Not a license (no EP) o Not a freehold (no certain end, is a non-freehold estate) o Real property (land) Source of Law: Residential Tenancies Acts 1997 ( Vic) A lease is an agreement between the landlord and tenant to confer EP, upon terms for a limited period of time. Right in rem for duration of lease. Lease used to be treated as purely contractual relationship, now is a real property interest with more extensive remedies and property rights. o E.g. right to damages, specific performance at equity or the doctrine of ejectment. Terminology Leasehold Grantor = landlord/lessor Leasehold Grantee = tenant/lessee Agreement = lease/ tenancy agreement /demise /tenancy o Tenant (T) gets the leasehold o Landlord (L) gets the leasehold reversion (after the end of the lease, fee simple revert back to the landlord) The Lease Contract Parties can incorporate any terms subject to some statutory exceptions o Forfeiture clause : L can determine the lease in the event of a breach by T Covenant : damages / injunction Condition : rescission Typical covenants: o Covenant by the tenant to pay rent o Covenant by either tenant or landlord to repair the premises o Covenant by the tenant not to assign or sublet the premise without prior consent of the landlord Types of Leases 1. Fixed Term Lease A lease of a fixed period o Fixed term does not have to be one continuous period E.g. lease for three successive public holidays is valid. (certain duration) o Automatically expires at end of fixed period, not need to give notice. Usually created by deed (if >3 years or more) PLAs52(1) Duration must be certain .
67 o Can be one day or 300 years ( PLA s153 ) o Any lease more than 300 years, tenant can turn into fee simple. Perpetual leases (only by statute); E.g. for state library. RULE : Can be of any length provided that at the time the agreement is entered into the exact date of termination is either known or ascertainable by the parties o B ishop v Taylor (1968) 118 CLR 518 o Lease term for “duratio n of the war” (problem- don't know when war will end). o “U ntil Easter Sunday 2015” is ok because the date is ascertainable Roadmap: Lease? 1.Issue–is it a lease?
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