LAWS216:Property LawWeek 9, Exam Preparation: LeasesLease = interest in land granted by one person (landlord / lessor) to another (tenant / lessee), which confers right of exclusive possession of land for fixed period. Holder of fee simple, life estate (lease can’t be for >10 years), or leasehold estate (sublease) can grant a lease.Occasionally referred to as ‘demise’, is a chattel real. Interest retained by lessor is known as reversion.RequirementsCertainty of duration.Grant of exclusive possession.Certainty of durationLace v Chantler  lease ‘for duration of the world’ is not a certain duration, as there is no way of telling how long the war would last. Say v Smith (1561) commencement date of lease must be certain.Lace v Chantler  maximum duration of term must be certain.Skorpos v United Petroleum  a lease can only start once conditions are met, and damages can’t be sought for the period prior to the lease, as there is no certainty the lease exists prior to the conditions being filled.Exclusive possessionRadaich v Smith (1959) the true test of a supposed lease is whether exclusive possession if conferred upon the alleged lessee.KJRR Pty Ltd v Commissioner of State Revenue (Vic)  if there is no exclusive possession but there is a right to use, a license is created. Living and Leisure Australia Ltd v Commissioner of State Revenue  test of a lease is the grant of exclusive possession, which is the right to exclude others, including the landlord. Task is to look at the whole of the document and the surrounding circumstances. Formal requirements under statuteOld system title at lawConveyancing s 23B legal leasehold interest over old system land requires a deed.Exception s 23D(2) under which a legal leasehold interest can be created orally if;oIt’s at the best rent that can be reasonably obtained without taking a fine;oIt’s taking effect in possession;oIt’s for a term (including an option to renew) for not more than 3 years.Old system title in equityWaltons Stores v Maher (1988) can be recognised through equitable estoppel.Regent v Millett (1976) can be recognised through concluded oral agreement + sufficient acts of part performance.Walsh v Lonsdale (1882) where parties have executed an agreement to lease, equity regards that as done doctrine of anticipation. Torrens Title
RPA s 53 requires leases of 3> years to be registered.oParkinson v Braham  leases of <3 years can still be registered.Exception for short term tenancies under Torrensis contained in RPA s 42(1)(d);oTerm of tenancy together with any option to renew can’t exceed 3 years.oTenant must be in possession of entitlement to immediate possession; andoRegistered proprietor before becoming registered must’ve had notice against which he was not protected.
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- Leasehold estate, Say v Smith