Leases
1. Xavier is looking for commercial premises from which to run his accounting practice. He
sees an advertisement in the window of a small office near his home and, after an inspection
of the property with the owner Yolanda, decides that it would suit him perfectly. They orally
agree on the terms of the lease and shake hands on the deal. It will initially be for two years
with an option to renew for a further two years after that. The rent is $750 per week and the
lease is to commence in 2 months. When Xavier walks past the office a couple of weeks
before he is expecting to take possession, he is surprised to see that another business is
already in place.
Advise Xavier.
Answer
The issue raised in this case is does Xavier’s lease interest have to be registered?
The relevant law in this case are the Conveyancing Act 1919 (NSW) and the Real Property
Act.
Under s 23B of the Conveyancing Act, a legal leasehold interest over old system land
requires a deed. Exceptions to this, as stated in CA s 23D(2) include if the leasehold interest
is at the best rent that can reasonably be obtained without taking a fine; taking effecting effect
in possession; and for a term (including the option to renew) not exceeding 3 years.
Under s 53 of the RPA, leases of more than 3 years must be registered. S 42(1)(d) of the RPA
states exceptions to this requirement include: the term of the tenancy together with any option
to renew must not exceed 3 years; the tenant must be in possession of entitled to immediate
possession; and the registered proprietor before coming registered must have had notice
against which he was not protected.
It has not been stated whether property of interest is in the old system or the Torrens system.
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- '18
- james
- Real property law
