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Week 7 Leasing Part A - Coggle Diagram

- - - - s 130 - 136
    - - implied - Javad v Mohamme Aqil [1991] 1 WLR 1007 at 1012
  - - - if the tenancy is one where there is no agreement as to its duration, a yearly tenancy will no longer be implied by the payment of rent and in its place, a tenancy shall be implied
    - - Implied agreement
        
        s 129 may be problematic to apply to this (see text p648)
      - Holding over
        
        Moore v Diamond (1923) 43 CLR 105 at 114
        
        s 129 applies to this (see text p648)
      - Terms too vague and uncertain
        
        Moore v Diamond (1923) 43 CLR 105 at 114
        
        Brisbane City Council v The Council Club [1995] QCA 23
      - Informal lease or agreement for lease
        
        Moore v Diamond (1923) 43 CLR 105 at 114
        
        s 129 applies to this (see text p649)
      - Express Grant
    - - key case for illustration of the principles
- - - - Exclusive possession is the element that creates the in rem right
        
        If this does not exist it is generally not a lease and it is likely a licence
  - - - The names of the parties being the Lessor and the Lessee;
      - “description of the demised premises;
      - a right to exclusive possession of the demised premises;” and
        
        Lewis v Bell
        
        right to excluded others except under specific provisions of entry
        
        use does not amount to exclusive possession (EP), occupation appears to be more akin to EP.
        
        Radaich v Smith (1959) 101 CLR 209
        
        exclusive possession
        
        test - see text p635
        By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives.
        legal right of exclusive possession is a tenancy and creation of such a right is a demise (lease)
        
        difference the fact of exclusive possession and the legal right of exclusive possession
        
        granting of legal right to exclusive possession is essential to create a lease p 635
      - the term of the lease.
        
        expressly included in the lease
        
        commencement date must be certain
        
        Joplling v Jopling (1908) 8 CLR 33 at 39; if no commencement date provided it may be implied based upon entry into possession and payment of rent
        
        certainty of duration
        
        Charles Clay and Sons Ltd v British Rail Boards [1971] 1 All ER 1007 maximum duration of a fixed term lease must be ascertainable at the time the lease commences
        
        cannot be an external collateral to measure the term of the lease i.e. duration of a war, council actions at some unknown future point in time, means that final duration cannot be ascertained
        
        however can have a term based on the happening of and uncertain event i.e 5 year fixed term lease with the right to determine the lease is the war ends within those 5 years see Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386
        
        can be cyclic, or tenancies for life, tenancies at will and tenancies at sufferance
  - - - Does it have to be evidenced in writing?
      - If so which leases need to be in writing?
      - What is the consequence of not registering a lease in Qld?
        
        What if lease (longer than 3 years) not registered
        
        Lease not valid until registered, ss 181, 182 LTA
        
        Equity will enforce the unregistered lease
        See s 71 LTA
        
        Reflects decision in Chan v Cresdon Pty Ltd (1989) 168 CLR 242
        
        The Lessor’s obligations (at a minimum) is to deliver to the Lessee an instrument in registerable form to enable the Lessee to register the lease.
        
        See Laurinda Pty Ltd v Capalba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
        
        Where there is a conflict between the LTA and equity, equity will prevail. This is providing the remedy of specific performance in available
        
        S 129 PLA will also create an implied tenancy at will so long as the lessee is in possession and paying rent
        
        If land is sold to another RP then registration defeats the unregistered lease unless the exceptions apply.
        
        For example, s 185(1)(a) in personam or s 184(3)(b) fraud LTA
        
        Short – term leases (defined as three years or less) are not required to be registered
        
        Ss 71, 181 LTA
        
        This means that all short-term leases are legal leases even if not registered and not evidenced in writing providing they take effect on possession of the premises by the tenant
        
        Remember exceptions to indefeasibility s 185(1)(b) LTA
        
        But there are limitations to the protection, see s 185(2)(b)
        
        Exception to indefeasibility under s 185(1)(b) does not apply BUT it does not mean other exceptions may not apply. The most obvious is the in personam,
        S 185(1)(a).
    - - Leases of up to 3 years do not have to be in writing providing they come into possession (immediate right to possession) - see ss 10(2)(c) and 12(2) PLA
      - Longer leases must be evidenced in writing – see ss 10 and 11(1)(a) PLA. See also s 59 PLA (enforcement of lease)
    - - Torrens system implications
        
        To create a valid legal lease for a longer term than three years under the LTA it is NECESSARY that the lease be executed in the approved form and REGISTERED. (see RPLIQ, [14.280])
        See ss 64, 65, 181, 182, 184, 185.
        
        This is in addition to the PLA requirements.
        
        See mainly s 65.
        
        Need to get mortgagee’s consent prior to registration or lease not valid against the mortgagee, s 66 LTA.
- - - - Lessor's
        
        Quiet enjoyment (applies in all leases)
        
        Not to derogate from grant (applies in all leases)
        
        Ensure fitness for habitation at commencement of the lease if furnished dwelling provided
        
        If lease granted before the premises are fully built a warranty of fitness is implied
      - Leasee's
        
        Obligation to use premises in a tenant-like manner
        i.e. day to day maintenance as opposed to repairs
        
        Obligation to yield up possession in good and tenantable repair at the expiration of the term. (Subject to the state the property was in at the commencement of the term)
    - - Not to commit waste – s 104 PLA
        
        Pay the rent – s 105(1)(a) PLA
        
        Keep property in repair – s 105(1)(b) PLA
        
        Allow Lessor to enter and view premises – s 107(a) PLA
        
        Allow Lessor to enter premises to repair premises required by statute – s 107(b) and (c) PLA
        
        Yield up possession at end of lease – ss 138, 139 PLA