property_law_summaries

Personal property o damages because they can be

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- Personal Property o Damages: because they can be replaced.
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TOPIC 7 : LEASEHOLD COVENANTS_____________________________ rights and obligations – these rights and obligations derive from the terms of the contract. These may derive from a number of sources: o Express agreement** Written or oral terms but they are expressly agreed upon by the parties. o Implied by custom or usage Not expressly discussed by parties but implied. Can arise by custom or usage. o Implied in fact BP Refinery & Hastings Shire Council o Implied by law Statute * Lots of statutory regulation of leases. Common Law ** Use as a tool of analysis EXPRESS COVENANTS____________________________________________ most leases contain many can be written or oral o Examples : includes tenant’s obligations to: To pay rent To repair (non-structural) To not assign or sub-let the premises without prior consent of the landlord. To use the premises for a specific purpose only. Note: that s. 144 of the PLA affects the covenant “not to assign or sub-let the premises without the prior consent of the landlord”. PLA s.144 - Covenants against assigning or subletting without consent of landlord are deemed in the absence of a provision to the contrary to be subject to a proviso that such consent will not be withheld unreasonably and no fine shall be payable for the consent. Q. how can the effect of this provision be avoided? The parties would have to put a provision to the contrary about this in the contract and make it very clear that they do not want s.144 to apply. Residential Tenancies Act 1997 (Vic) s.15 : excludes 144 PLA s.81 : no assigning or sub-letting without consent of the landlord. Such consent must not be withheld unreasonably.
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s.82 : procedure if consent withheld. COVENANTS IMPLIED BY STATUTE_________________________________ The applicable statute depends upon the nature of the premises concerned o Torrens land (TLA s.67) o General law land (PLA schedule 4) o Residential (RTA 1997) o Retail (Retail Leases Act 2003) IN EXAM – LOOK AT COMMON LAW TERMS THAT ARE IMPLIED RATHER THAN STATUTE. TLA s.67: - They don’t tend to be examined - 1) You will have an implied term that the tenant will pay the rent set by the lease at the time stated in the lease and will pay the rent and taxed owing unless statute provides otherwise. - 2) The tenant will keep and yield up the premises at the end of the lease in good and tenantable repair. (there is case law that exists that defines what good and tenantable repair is) o “ such repair as having regard to the age, character and locality of the house that would make it reasonably fit for the occupation of a reasonably minded tenant of the class that would likely to take it.” – Proudfoot v Hart . o This won’t cover reasonable wear and tear and accidents and damage from storms. - 3) The landlord each year at a reasonable time of the day can enter and inspect the premises. The landlord doesn’t have to give any notice to the tenant. But they can only do this once a year.
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