For failure to pay rent Proceed against T Kitchen damage Proceed against T1 because continuing breach S51 and Liability for Past breaches Section 51 does not affect the general rules on past breaches does not mean that the new assignee is liable for complete breaches after transfer. o Neither does s 52. See Griffith CJ in Measures v McFadyen ; Gillies J in Big Country. These sections do not transfer personal obligations. The sections are contained to matters to do with the transfer of the estate. o Inconsistency with touch and concern Who is liable for what? 1. Tenant breaches and assigns o For a continuing breach, assignee will be liable o For a complete breach, tenant will remain liable and assignee will not be liable o Landlord can still sue tenant on contract after the assignment occurs 2. Landlord breaches then assigns o For a continuing breach, assignee will be liable
23 o For a complete breach, s118 applies i.e. burden of being sued goes with reversion 3. Landlord assigns, then tenants breaches o S117 applies so benefit of being able to sue tenant for breach goes with reversionary estate 4. Tenant breaches and then landlord assigns ( Ashmore Developments; Measures v McFadyen; Big Country ) 5. Landlord breaches then tenant assigns o Assignment does not affect tenant’s right to sue for breaches that are complete o For breaches that are continuing, assignee can sue not tenant Termination of Lease Termination of lease law is based on circumstances where the tenant breaches and the landlord is looking to terminate Law of real property assumes that the landlord wants to get the freehold estate back safely BUT this law does not take into account that the landlord might want damages this has been challenged especially in commercial leases Remedies derived from contract law may apply, giving landlord access to a larger amount of damages Re-entry and forfeiture f or lessee’s breach of covenant Where a tenant breaches a covenant in the lease, and either: o The lease reserves the right of re-entry expressly or Where the right is express look to the terms of the clause to see if it is to be exercised in a particular way. o There is an implied statutory right (see s 85(1)(d) CA ) Any breach will give rise to a right of re-entry is not concerned with the quality of the breach Statutory requirements for re-entry o Rental covenant – see s 85(1)(d) – one month in arrears (i.e. one month behind) o Non-rental – s 85(1)(d) – 2 months or for repair: notice to repair served and no repair in reasonable time.
24 + Notice under s 129(1) CA for non-rental clauses specify breach For form of notice Schedule 6 You cannot contract out of the requirement for notice – s129(10) Service where assignment or sublease o Must be served on the assignee o No requirement to serve the notice on the assignor o Where there is a sublease you must serve the notice on the sub-lessor Manner of forfeiture o
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