e whether int is assignable lease or merely personal license Formal

E whether int is assignable lease or merely personal

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like ‘quiet enjoyment’ indicate lease. e) whether int is assignable (lease) or merely personal (license). Formal Requirements TT: legal leases - S53 RPA requires leases of >3 yrs to be reg in approved form. s42(1)(d) RPA (short term tenancies exception) – a) Tenancy together w/ any options must not exceed 3 yrs (can be oral). b) Tenant must be in possession (or entitled to immediate). c) Reg prop (before becoming reg) must have had notice against which he wasn’t protected (ref to s43A RPA ). Equity : Written but unregistered in approved form or other writing (4 P’s). Concluded oral agreement + sufficient acts of PP. Effect of Reg : Only cures formal defects (mistake or forged sig) [ Merchantile v Shell : Provisions inherently rel to lease also gain indefeasibility] Reg will not cure defect in substantive reqs. Covenants in leases Terms of agreement, including: a) Express covenants : Presence of an express cov in a lease precludes operation of an implied cov. b) Implied covenants (at common law): If lease is silent on matter – 6 implied covenants: Landlord - 1. Quiet enjoyment. Res Ten Act 2010 (NSW) s 50 [ Hudson v Cripps – LL removed doors & windows to force ten out]. 2. Not to derogate from grant of the lease. Cant take int away [ Karraggianis v Malltown: LL ceased operating lift). 3. Fitness for habitation of furnished premises. Tenant – 4. To use premises in a “tenant like manner” [ Warren v Keen : “He must do the little jobs about the place which a reasonable tenant would do”]. RTA s 51 – list incl. illegal, nuisance, peace, damage. 5. To yield up possession to the LL at the end of the tenancy. 6. In the case of agri land, to cultivate in a “husband-like” manner. c) Implied by statute s84-85 CA. d) Judicially implied from construction of lease (or rel as leasehold int) Leasehold rights Right to assignment : Transfer of whole of the tenants interest. Right to sublease : transfer of less than whole the tenants interest in lease. Prohibition on assigning/subletting may be absolute (cannot sublease or assign) or qualified (can with LL’s consent). Test of reasonableness of LL’s consent imposed by s133B(1)(a) CA . Enforceability of Covenants Doctrine of Privity of Contract : Express covenants in lease are enforceable between them as matter of contract law. D octrine of Privity of Estate : Where parties stand in relationship of LL & tenant, the covenants of lease are enforceable between them if they “ touch and concern the land ” [ P&A Swift Investments v Combined English : test - cov must be about the land – the nature, quality or mode of use of the land, & not about the personal preferences of ten]. When LL sells property = assignment of reversion. When tenant subleases = assignment of lease. [ Gumland Prop v Duffy Bros : Duffy bros couldn’t afford lease & decided to sublet. Gumland relied on PoE to recover money from duffy as woolworths refused to pay more than half the rent they owed. Couldn’t attack Wool as they were a tenant of Austie who was a tenant of Duffy Bros. Held – Oblig to pay full rent does run with the land (duffy liable on PoE)] [ Specialist Diagnostic v Healthscope
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