Property A Study Notes The PLA came into effect December 1 st 1975

Land Limits

Airspace Limits Trespass will occur if there is a direct unauthorised interference with the airspace of

another’s property Davies v Bennisono This includes airspace that is required for the ordinary use and enjoyment of a

property Bernstein v Skyviewso The interference does not have to be actual use and enjoyment, it could be potential

LJP Investments v Howard Chia And minor Kelsen v Imperial Tobacco

o Transient trespasses Graham v KD Morris Remedies;

o Damages if a once off event Davies v Bennisono Injunction if ongoing, and damages not an appropriate remedy LJP Investments v

Howard Chiao Mandatory injunction for removal Kelson v Imperial Tobacco o Strict liability for damage by aircraft Damages by Aircraft Act 1999 (Cth)o Creation of easement if in public interest and damages could be appropriate, under s

180 PLA application. Consider cost to both parties Lang Parade v Peluso

o Right to abate nuisance if no damage, or removal under Neighbourhood Disputes Act

Compensation for some associated costs.

Rights Under Land Mineral Resources Act 1989 (Qld) most minerals (s 6) are property of Crown (s 8)

o Also Petroleum Act 1923 (Qld) s 9o Cth owns Uranium Atomic Energy Act 1953 (Cth)

Must not deprive neighbours of lateral support Dalton v Anguso S 179 of Property Law Act

Riparian Rights

Water ActS19 Vests in the state the right to use, flow and control all water in QLDS20 Despite s19, an owner of a land adjoining a watercourse is allowed to take water

for domestic purposes/watering stockLand ActS8 A right line boundary is a right line boundary that is located approximately where

a tidal boundary might otherwise be locatedS9 State owns land that is on the same side of a tidal boundary or a right line tidal

boundary as water subject to tidal influence

S9(2) For a tidal, navigable river, if the high water mark shifts over time gradually and imperceptibly, then the boundary will shift

S9(4) Confirms position at CL in relation to accretion to land which before commencement of 2010 amendments, had a boundary formed by the high water mark

S10 Provides that where the land is raised above the high water mark because of the carrying out of works that land belongs to the state (applies to tidal water) – whether or not deliberate, state will own the land. This is also suggested for non-tidal.

S13A If it is a watercourse/lake other land that adjoins the boundary land on the watercourse/lake side is state land(4) Action against trespassers for owner of adjoining land.

S123(e) Water licenses transfer with property title

Survey Mapping and Infrastructure Act – determines where a boundary is locatedS62 Definition of right line boundaryS63 Watercourse is defined as a river, creek or other stream, in which water flows

permanently or intermittently, regardless of whether it is a natural channel or artificial channel. It includes, in-stream islands, benches and bars.

S70 Definition tidal boundary - if identified by reference to water that is subject to tidal influence/natural feature or thing whose existence and location on water that is subject to tidal influence

S99(1) Definition of non-tidal boundary lakeS99(2) Definition of non-tidal boundary watercourse (and s100)

Accretion Question Applies to Crown Land Theosophy v SA1. Is the boundary a tidal or non-tidal one?

a. Non-tidal – New land acquired if as the result of imperceptible accumulation AG Southern Nigeria

i. If as a result of human intervention, no title – s 10 Land Actb. Tidal – Boundary will be ambulatory s 9 (4) Land Act

2. Is the boundary ambulatory? S 70 SMIAa. Boundary must be a tidal one.b. Boundary must be identified with reference to a natural featurec. The boundary must be incapable of being shown as a right line boundary

Fixtures

Answer Plan Was there a contractual agreement regarding what should happen?

o Necessary for retail shop leases, s 145 RTSLA State an assumption as to the nature of the chattel if unclear, eg, a BIG shed, etc. Decide - Was it the objective intention that the item becomes a fixture? Hobson v Gorringe

o No one test, all facts relevant NAB v Blacker 1. Degree of annexation (presumptions) – APA v Corneo

a. Connection with the land (Onus of proof) – APA v Corneob. Mode and extent of annexation – Removability? Destruction/damage – APA v

Corneoi. If the area will look unsightly after removal Hawkins v Farley

ii. Or holes left Pan-Australian v Kalim2. Objective object of annexation – Hobson v Gorringe

a. Time period of annexation – Permanent or temporary? APA v Corneob. Better use – For the object or the land? Holland v Hodgson

i. If property – likely fixture ii. If for chattel – likely not fixture

c. Integration with other systems – Belgrave v Barlin-Scott3. Community Standards regarding the chattel – Reid v Smith4. Conclude what action the party should take! Damages or injunction?

a. At time of signing sale, fixtures pass, s 239 PLA

Illustrative Decisions

Fixtures Stove and substantial shed – Hawkins v Farley Air-conditioning – Belgrave v Barlin-Scott Carpeting – Laselle v Canadian Camdex Engine – Hobson v Gorringe Looms – Holland v Hodgson

Chattels Odd decision saying power lines are chattel – Anthony v Cth Chairs that have been moved around – APA v Corneo Ornamental tapestry – Leigh v Taylor Chandelier – Park v Lasrado

Rules of Priority Re Fixtures1. Vendor & Purchaser – Fixtures alienated with land, unless contract provides otherwise.

Vendor loses right at time of signature 2. Beneficiary of Estate – Beneficiary of property receives fixtures.3. Landlord & Tenant – Tenant can remove fixtures affixed for ornamental or domestic use.

4. Mortgagor and owner of chattels – Mortgagor has right to all fixtures at time of mortgage plus those affixed after that.

5. Life tenant and remainder person – fixtures affixed by tenant pass to remainder person. 6. Third party may have equitable right – This will be defeated where another party acquires a

good faith legal interest for consideration without awareness of the dispossession of the third parties rights to the fixtures (generally in mortgage cases such as Hobson v Gorringe)

7. Hire purchase agreement – Owner has license to enter property to remove chattel. 8. Fixtures cannot be severed from land for taxation purposes Commissioner of Taxation v

Metal Manufacturers

Tenant’s Rights of Removal Generally fixtures affixed by tenant become part of landlord’s realty. However;

o Contract may preclude this, otherwise; Right to remove if ornamental, domestic or for trade and do so before expiry

of lease (Bain v Brand). If tenant dies, right to removal even if lease expires on death Leigh v Taylor

o Tenant cannot remove “lessors fixtures” (one that are not appropriate for removal) Sebea v Territory of Papua

Agricultural tenants can remove fixtures they have created under s 155 of the PLA or receive compensation s 156.

o Must be approved by land owner. C Law used to bar this Elwes v Maw

Given reasonable time opportunity if ongoing lease expires and unable to remove in that time Smith v City Petroleum

Mistake of Title

Mistake to Title Answer Plan1. Common law - Mistaken owner committing trespass and nuisance. Affected owner can

remove encroachment. Brand v Chris Building Society- Equity would intervene if owner of land realised occurrence of

encroachment, estoppel against owner preventing them from making a claim to title.

2. Rights to Action - S 198 PLA a. Improver/possessor of improvementb. Interest partyc. Owner/possessor of affected landd. Local authority

N.B. No action against parties not at fault (i.e. seller of land with mistaken title improvement) Newman v Powter

3. Jurisdiction Exists? Where person does improvements on own mistaken view - S 196 a. Re Karynette – As long as the person who made mistake had a genuine belief

that they were doing the right thing the action does not have to be reasonable. b. Are the Improvements Lasting?

i. Consider nature of improvement1. Maley v Ukranian West Canada – Clearing is lasting.

2. Substantial fence – Re Karynette3. Ploughing – Temporary – No compo

4. Relief must be just and equitable - S 197; Re Verdugoi. Transfer of ownership with compensation

ii. Order removal of fence improvement iii. Compensation for lost potential iv. Lease land from land owner potentially.

Encroachment Answer Plan1. At Common law, amounts to trespass Kelsen v Imperial Tobacco2. Right to Action s 184 PLA

– Both encroaching owner, and owner of land that has been encroached uponNot limited to estates in fee-simple; lease holders can’t bring an action. Only land owners.

3. Does encroachment fall within scope of section?a. Overhang and subterranean intrusions relevant – s 182 PLAb. Must be a permanent structure Ex Parte Van Achterberg

4. Determine remedies available – s 185 PLA Aim for most equitable solution Cantamessa v Sanderson

a. Compensationi. Affected must mitigate loss Re Melden Homes

ii. Minimum amount is unimproved value of land Tripled if encroachment intentional/negligent S 186 PLA – Circumstances, value of land, loss and damage possible

will affect amount.b. Transfer of title

i. Only over affected area Tallon v Metropolitanii. Easement if short length of time left Kostis v Devitt

c. Order for removal of encroachment5. Orders made with reference to; s 185;

a. Who makes applicationb. Situation, value of land, nature and extent of encroachmentc. Character of encroachmentd. Loss and damage incurred by adjacent ownere. Loss and damage to encroaching owner if order for removal grantedf. Circumstances of encroachment.

Tenure in Australia No tenure for benefit of Crown for fee simple created after enactment of PLA s 20 PLA No escheat (reversion to the Crown) for those died post 1968 and quit rent s 20 PLA

o Unless no-one to pass to under Succession Act Transfers can occur without license or fine s 21 PLA

Estates in AustraliaTHINK CAREFULLY ABOUT WORDS USED IN PROBLEM, WHAT IS THEIR INTENTION?

1. In Fee Simple Can be created s 19 PLA; pass while owner is alive or on their death by will Default nature of estate S 29 PLA

2. In Fee Tail Now abolished (s 19 PLA silence)

i. Fee tail intention results in fee simple creation s 22 PLA3. Life Estate

For as long as holder lives; or another person. i. Subject to doctrine of Waste – Liable for damages to remainderperson for

degradation s 24 PLAii. Only allowed to commit equitable waste if expressly conferred s 25 PLA

Only occurs by clear expression that this is intention; default position is that estate is in fee simple s 29 PLA

Waste1. Permissive Waste – Allowing stuff to decay; only if expressly provided for Re Cartwright2. Voluntary Waste – Due to positive act, eg; cutting timber Honywood v Honywood3. Equitable Waste – Purposeful waste where no liability provided for, but inequitable not to

compensate remainderperson Vane v Lord Barnard4. Ameliorating – Alters the land entirely. Rare. Hyman v Rose

Modified Fee Simples

Determinable Fee Simple – ‘While’, ‘during’, ‘as long as’, ‘until’ Duration of estate limited by a possible (but not definite) event

o Occurrence of event, grantor automatically resumes title No issues with adverse possession

If determining event fails (eg illegal) then the estate fails, grantor retains ownershipo Courts cautious to deem event failed.

Conditions that may be invalid could be valid as a determinable event (eg, grant to A until A alienates) Caboche v Ramsay

Conditional Fee Simple - ‘Provided that’, ‘on condition that’, ‘but it’ ‘it happens that’ Estate is absolute; if condition breached then grantor has right to resume

o Not automatic, can waive right; can be barred by Limitations of Actions Act (Qld) If condition void, it is severed and ignored. Re Dugdale

o Void if total, not partial restraint In Re Macleay o Obligation wilfully assumed by purchaser not void Wollondilly v Picton Powero Not void if for limited duration Wollondilly v Picton Power

Voided due to;1. Policy Reasons

Zapetal v Wright (immoral relationship)o But if situation already existed, valid Andrews v Parker

Can’t marry a class Duggan v Kelly Asking for divorce okay Ellaway v Lawson

2. Against Course of Law If contrary to normal legal rules, such as A as long as he does not

become bankrupt Caboche v Ramsay3. Lack of clarity

Live in Canada Sifton v Sifton4. Alienation Limits

General limit on alienation is invalid Re Dugdale Partial is acceptable;

o Only sell within family Re Macleayo Not acceptable if inequitable to seller, for example, forced

to sell at well below market price Saliba v Saliba

Collateral Contracts Can be used to limit interests too Hall v Busst

o Still susceptible to voiding due to limits it poses on party with title Hall v Bussto Acceptable if for a limited duration Wollondilly v Picton Power

Possession Possessor can make claim against whole world except those with better title Perry v Clissold

o Prior possessor has better title than later possessor Unless doctrine of adverse possession applies.

Possessor acquires proprietary right Asher v Whitlocko Can trump paper title if Limitations of Actions Act applies

Adverse Possession – Possessory Title Includes land under pastoral leasehold Eckford v Stanbroke Does not include against crown – s 6 (4) Limitations of Actions Act

Requirements1. Possession that is Adverse to the True Owner

(“Open, peaceful, adverse”) – Mulchay v Curramorea. Physical control Buckinghamshire v Moran

i. Physical exclusion of others (fencing and gates), only access via dispossessor’s land, maintenance of squatted land. Sum of facts.

ii. Treating land as owner would Pye v Grahamiii. “No trespassing signs” Powell v Macfarlaneiv. Use as communal tennis court not sufficient Riley v Pentilla

b. Intention to exclude othersi. Fencing and limitation of access Buckinghamshire v Moran

ii. Contrary to approval of true owner Shaw v Garbuttiii. Must be open about ownership Woodward v Wesley

2. Possession for Period Barring Actiona. 12 years s 13 Statute of Limitations 1974b. If claim based on several possessors all arising from original adverse possession then

good claim Mulcahy v Curramore

Native Title

Mabo (No 2) Results Land rights proscribed by indigenous laws and customs recognised by C Law of Aus Murray Islanders provided with essentially a proprietary right Native Title could be extinguished by acts of the Crown, but these in turn post 1975 were

subject to the Racial Discrimination Act 1975 (Cth)o State acts extinguishing native title would be inconsistent to the extent of that

extinguishment WA v Ctho Post RDA extinguishment must pay compensation, pre 1975 does not.

Also consider s 51 resumptions on “just terms” Ward Aboriginals do not have sovereignty of their lands, this was extinguished by British

settlement; approving Coe v Cth

Wik leading to 1998 Amendments Pastoral leases don’t necessarily extinguish NT Wik v QLD

o Look at inconsistency of incidents Then determine the legal rights that exist, those that are inconsistent with

NT rights invalidate them Ward

Elements of Native Title Fee simple extinguishes NT Fejo v NT

NT is limited to uses as provided under traditional laws and customs Mabo (No 2); WA v Ward

o Does not exclude use of commercial fishing, mining, navigation but can include seas Yamirr

o Control fishing, at least under statutory fee simple grants Blue Mud Bayo Recognition, not creation of NT rights.

Varies based on different community values WA v Wardo Does not include mineral rights.

Inalieanable, but can be surrendered to the crown for conversion to fee simple per s 56 NTA NT can be vested in body corporate, or a trust. Can be dispossessed if law extinguishes NT but has a non-discriminatory effect on all groups

land rights Wardo If dispossession and compensation paid to non NT parties, RDA will extend

compensation to NT holders. o If dispossesses only NT holders of their rights, it is invalid, s 19 NTA validates these

type of acts.

Crown Land Does not receive exclusive possession, does not extinguish native title Wik v Qld Can be in perpetuity, and applications can be made to convert leasehold land to fee simple

under the Land Act 1994 Renewal must be after consideration of things like public policy (16(1) LA), the environment,

and whether conditions of lease met. DOC for land (s 199), control noxious weeds (s 200), and give info where requested (s 201).

o Forfeiture if breached – s 234 Lease forfeited if rent not paid – s 234 Compensation for improvements upon forfeiture.

Dealing with Native Title

Common Law Extinguished entirely by;

o Fee simples extinguish NT Fejoo Exclusive possession leases, such as perpetual leases extinguish Wilson v Anderson

Partial extinguishment occurs when other party’s rights are inconsistent with NT Eg, exclusive possession rights, controlled access to land, etc.

o Non-exclusive pastoral leases Wiko Mining leases Ward

NT rights never resurrect, if NT is disturbed at any point it is extinguished. Fejo, Ward

Native Title Claim Yorta Yorta provides guide to dealing with s 223 NTA Right to pursue traditional activities that are barred by other acts s 211 Gain inalienable interest, can relinquish for conversion to fee simple s 56

1. A connection to the land and waters by the traditional laws and customs.

a) Identify the content of the traditional rights and interests in relation to the land and waters held pursuant to the traditional laws and customs

b) Demonstrate how through traditional laws and customs the claimant group has a connection with the land or waters

NB: Occupation of the land is not sufficient to establish NTDoes not require physical connection to the land and can be established without continuous physical presence on the land

S223(1)(b)Ward

Yorta

WardWard

2. Native title must be possessed under the traditional laws acknowledged and the traditional customs observed by the claimant group

a) The laws and customs that the claimants currently observe, and which they rely upon to support the claimed native title rights and interests, are substantially the same as those that were observed by their ancestors at the time the Crown asserted sovereignty over the claim area. (traditional = pre-sovereignty)

b) The acknowledgment and observance of those laws and customs by members of the claimant society has continued substantially uninterrupted since the date of the acquisition of sovereignty by the Crown. (continuity)

The use of contemporary means to undertake traditional activities will not of itself mean a loss of NT

S223(1)(a)Ward; YortaYorta

Maybe commercial rights? Akiba

Yorta

Yanner v Eaton

3. The existence of a body of persons – a society - (an identifiable group, community or normative society)that is “united in and by its acknowledgement and observance of a body of laws and customs”The normative system, that is the system of laws and customs, must be that of a society that existed at the time the Crown asserted sovereignty. The laws and customs cannot be those of a later and different society.

S223(1)(a)Yorta

4. That native title has not been extinguished or is otherwise not recognised by the common law. (see below)The onus of proof rests with the applicants

S223(1)(c)

Extinguishment of NT

At Common Law Fee simple grant Fejo Exclusive possession leases, such as perpetual leases Wilson v Anderson Partial extinguishment occurs when other party’s rights are inconsistent with NT

Eg, exclusive possession rights, controlled access to land, etc.o Non-exclusive pastoral leases Wiko Mining leases Ward

NT rights never resurrect, if NT is disturbed at any point it is extinguished. Fejo, Ward

Executive Grants Look at legal nature of interests to determine if incompatible Ward Must be clear intention to extinguish NT Wik NT extinguished to extent of inconsistency Wik

Statutory Extinguishment Must have plain and clear intention, and extinguishes to extent of inconsistency Wik Regulation alone does not extinguish NT Yanner v Eaton

NTA Validation of Actions1. Is it a Cth action?2. Is it a future dealing (post Wik) or a confirmation dealing (pre Wik?)

Past Dealings – Pre 1 July 1993 Legislation, Pre 1 Jan 1994 Grants – s 15 NTA

Category A Freehold Estates; commercial, agricultural, pastoral, residential leases. S 229

Total extinguishment

Category B Community group leases s 230

Extinguishment to extent of inconsistency

Category C Mining Leases NT suspended until lease expiresCategory D All other leases

Intermediate Period Acts (Between Wik – 1 Jan 1994 and Ward – 23 Dec 1996)Same as above.

Extinguishment under the Native Title Act (Cth) – 1/1/1994

1. Review the Act a. Is it a Cth or State act?

i. If it is Cth, apply NTA b. Note the date on which Act occurred

i. If the act took place after 23/12/96 then refer to the future dealings regimes provision

ii. If the act took place prior to 23/12/96 then refer directly to the confirmation of extinguishment provisions

2. Future Dealings Regime (If post 23/12/1996)a. Part 2, Division 3 of the NTA

i. Review the NTA to determine if dealings occurring on or after 1 January 1994 are valid/invalid

ii. Future acts are valid if permitted by NTA but invalid to the extent they affect NT are not covered by NTA: s24AA(2); s233

Does the act single out NT alone for detrimental treatment? WA v Ward

iii. The non extinguishment principle generally applies to NT in the future dealings regime: s238

3. Confirmation of Extinguishmenta. Part 2, division 2B of NTA

i. PEPA – act which occurred on or before 23/12/19961. Does the dealing meet the definition of a PEPA: s23B

a. Is it valid or validated? (see valid/invalid but validated below)

b. It is a schedule interest?c. Is it a private freehold, exclusive leasehold or public work?

2. If it is PEPA then the dealing will totally extinguish NT: ss23A, 23Ca. Include the grant or vesting of:

i. a Schedule interest: (s 23B(2)(c)(i) cl 21; 249C NTA);

ii. a freehold estate (s 23B(2)(c)(ii) NTA);iii. commercial leases that are neither

agricultural or pastoral (s 23B(2)(c)(iii) NTA);

iv. residential leases (s 23B(2)(c)(v) NTA);v. exclusive possession leases (other than

mining leases) (s23B(2)(c)(viii) NTA).vi. And, public works commenced on or prior to

23 December 1996 (ss247A, 248A). b. If you interest falls here, then you don’t need to look

anywhere else – just s23B(2)(c)ii. PNEPA – act which occurred 23/12/1996

1. Does the dealing meet the definition of PNEPA: s23Fa. Is it valid or validated? (see valid/invalid but validated

below)b. Is it a non-exclusive possession pastoral or agricultural

lease?2. If it is a PNEPA then the dealings will extinguish NT to the extent of

inconsistency: ss23A, 23Ga. So look to CL as to the extent of inconsistency: Wik/Ward

3. Exception: A pastoral lease validated as Category A past act (NTA pt 2, Div 2, ss15, 229) totally extinguishes NT: s23G(2)

4. Neither a PEPA nor PNEPAa. The confirmation of extinguishment provisions in the NTA will not apply

b. Determine if the dealing is valid, invalid or invalid but could be validated under the NTA

5. Valid and Invalid dealingsa. To determine if the dealing is valid or invalid review the HC’s test regarding validity

in Ward and the application of the RDAb. Note the date when the dealing is occurred – whether prior to or after 31 October

1975 i. Valid dealings

1. Dealings occurring prior to 1975 will generally be valid, despite the existence of NT

2. The validation provisions of the NTA (Pt 2, Divs 2 and 2A) do not apply to valid grants. The implication of such valid acts are to be determined under confirmation of extinguishment provisions. If not dealt with in confirmation provisions, then look to common law rules of extinguishment

3. If the dealing is PEPA or PNEPA then its affect on NT will be determined by CL

ii. Invalid dealings1. If the dealing is invalid for reasons other than the existence of NT

then it will not be validated under the NTA2. Invalid dealings have no affect on NT

iii. Invalid but Validated dealings1. Dealings occurring post 1975 will generally, because of the existence

of NT be invalid. a. Invalidity occurs where inconsistency with the RDA exists,

and commonwealth actions which extinguish native title without just terms are invalid Ward

2. If the dealing is invalid because of the existence of NT then it will be validated by the NTA (NTA Pt 2, Divs 2 and 2A, ss228(2)(b), s232A(2)(c)

3. Determine if the dealing was validated as a past act or an intermediate period act: NTA ss15, 22B

a. Past Act – Part 2, Div 2 of the NTA i. Does the dealing meet the definition of ‘past act’:

s228 (prior to 1/07/1993)ii. Does the dealing adversely affect NT? S228(2)

iii. Was it undertaken post 1975 but prior to 1 July 1993 in the case of legislation, or prior to 1 January 1994 in the case of grants?

If so, then the dealing is validated by the NTA and the effect of validation on NT is either to extinguish or suspend NT and is determined by the past act provisions: ss15, 229-232

Note: if the past act is also a PEPA or PNEPA, then the effect of the dealing on NT will be determined by the confirmation of extinguishment provisions (s23C, 23G) with the exception of pastoral and agricultural leases (Category A past acts): ss23(G)(2), 15 NTA

b. Intermediate Period Act: part 2, div 2A of NTAi. Does the dealing meet the definition of an

intermediate period act: s232Aii. Does the dealing adversely affect NT: s232A(2)(c)

iii. Was it undertaken after 1 January 1994, but prior to 23 December 1996?

iv. Is it a non-legislative dealing?v. Was the dealing done over freehold or leasehold, or

was the dealing the construction of public works?If so, then the dealing is validated by the NTA and the effect of validation on NT is either to extinguish or suspend NT and is determined by the intermediate period act provisions: s22B, 233B-232E

vi. Note: if the intermediate period act is also a PEPA or PNEPA then the effect of the dealing on NT will be determined by the confirmation of extinguishment provisions: s23C, 23G

Note: s47 of NTA on past extinguishment can be disregarded in certain circumstances when a NT claim is made.

Legal and Equitable Interests in Land Equitable estates;

o Rights to beneficial use and enjoymento Good against all, except;

1. Bona fide purchaser of the legal estate for2. Value and3. Without notice

S 256 PLA gives implied notice that normal legal work would make aware of

Examples of Legal and Equitable Interests

1. A trust for use Does not require formal compliance to be created s 11(2) PLA

2. The Equitable Fee Simple A purchaser has an equitable fee simple on the signing of a contract of sale because the

purchaser has a right to specific performance of the contact. Tanwar Enterprises Pty Ltd v Cauchi

o In equity the purchaser has a right to compel the vendor to transfer the land itself, this does not exist at common law. Lysaght v Edwards

Trust relationship forms, equity treats vendor as trustee for the purchasor. This is exercisable against the estate of the vendor.

o Purchasor’s equitable fee-simple is related to the size of their deposit, eg a deposit of 10% means a 10% equitable interest in the land.

o Vendor is a qualified trustee, they retain an interest in the land. Entitled to remain in possession until settlement. Vendor can take rents and profits during this period.

3. The Equitable Lease An equitable lease arises out of a binding contract/agreement for a lease which can

be enforced by an order for specific performance. o Forces creation of a legal lease, tenant brings the actiono Tennant has a lease under the same terms in equity as what the legal lease

will be. (Equitable right to a legal lease) o Legal rights of landlord can be exercised Walsh v Lonsdale

Requires; (Walsh v Lonsdale)o Terms must be certain and definite (re time, amount)o Valuable consideration must exist (promise is sufficient)o Agreement must be in writing

Limited by; o Possibility of defeat by bona fide purchaser for value without noticeo Relies on courts for enforcement.

Statutory Requirements Re Legal and Equitable Rights S 10 PLA

o Conveyances and disposition in land must be made by deed or in writing and signed. S 11 PLA

o Requires equitable interests to have a written contract to supporto Trusts can only be created with relevant consideration provided s 11 (1) and (2) PLA

Remember – Equity does not assist volunteers S 181 LTA

o No legal title until registration Means that almost all rights in land will begin as equitable, and then become

a legal. Upon registration, interest becomes legal s 182

S 59 PLAo Contracts concerning land require;

Note/memorandum of contact In writing Signed by party under obligation Includes essential terms.

Price, parties, promises and property. (Equity won’t intervene while still negotiating)

o S 5(1) PLA PLA is subject to LTA

Exceptions to Statutory Requirements Regarding Legal and Equitable Interests in Land

Equitable Doctrine of Part Performance – s 6(D) PLA Preserves and Protects Oral contact create interest in land

o Proved by oral evidenceo When, partial performance of obligations has occurred

Established principles as to what is acceptable. P must prove (Regent v Millet);

o It would be fraudulent for the other party to deny the contract’s existence D must have known of acts at a minimum and at least passively encouraged

their performance If totally unaware, no intervention

o The acts of part performance are only explicable to a contract generally of the type alleged to exist (Maddison v Alderson)

Eg referable to contract re land, must prove it is land contract BRD (Regent v Millet);

Move into possession and pay rent – Kingswood v Anderson Possession, repairs and mortgage repayments – Regent v Millet

o Going into possession alone does not distinguish lease from sale of land.

Making improvements upon request – Rawlinson v Ames Not necessary for exact acts to be specified by contract

Pre-contractual acts are not acts that amount to part performance, eg valuations.

If referable to several contracts, not specific enough McBride v Sandland Open to debate, Southcoast Oils v Look Enterprises wider.

o Evidence of concluded agreement Proof of terms of agreement

o Contract capable of specific performance

Equitable Remedies(Discretionary)

1. Injunction2. Specific Performance

Forces creation of ultimate legal interest. Requires;

i. A valid and binding contract: (terms must be certain and definite, consideration must be valuable, therefore does not apply to deeds)

ii. Damages must not be an adequate remedy. Always true re land Pianata iii. The plaintiff must be ready, willing and able to perform his/her obligations

under the contract. b. Contracts that can’t be specifically enforceable;

i. Ones lacking mutuality

ii. For personal services and relationshipsiii. That extend over a periodiv. Ones that require supervision by the court.v. Hardship would occur for the D Blomley v Ryan

CO-OWNERSHIP Types of Co-ownership

S 33 PLA – Legal and equitable interests can be held as common or joint tenancy.

JOINT TENANCY Requires;

1. Four UnitiesI. Possession – All co-owners have right to non-exclusive possession of the whole

estate.II. Interests – Are in the same proportion and for the same duration, eg life.III. Title – The same instrument created all interests. IV. Time – The interest was vested at the same time.

2. Right of SurvivorshipI. On death of co-owner, their interests vests in survivors

i. Nothing they do can affect thisii. Unless all tenants agree mutually to do this.

iii. S 65 Succession Act says that if same event kills joint tenants, they are assumed to die in order of seniority.

Arrangements generally exist in matrimonial home, trustees and mortgagorso Consider that a common tenancy can exist in the beneficial interest in

equity.

Common Tenancy Only requires unity of Possession

o Other unities can exist, but don’t have to. Interests do not have to be equal No right of survivorship exists.

Creation of Co-Ownerships Assumed to be a tenancy in common s 35(1) PLA

o Unless; Expressly stated otherwise s 35(2)(a) PLA - “participate” indicates common Executor, administrator, trustee or mortgagee hold property s 35(2)(a) Held for a partnership s 35(2)(b) – But equitable interest is in common s

35(3)o Therefore tenancy in common where;

Using words of severance The absence of a unity

Incomplete explanation of interests Consideration of practicality of JT vs TiC Re Barbour

Pre PLA courts prepared to consider what was the most rational outcome;o Re Barbour (splitting land too much, made joint tenancy) o Re Rose Deceased (joint tenancy impossible due to will meaning unity of time

impossible with children coming of age at different times)

LTA Has No Altering Effect S 56 (1) says both are possible, s 56(2) says where not stated it is common S 57 says separate titles can be issued where tenancy in common.

Co-Ownership in Law vs EquityEquity presumes a tenancy in common where;

1. Partnership Spence v Federal Commissioner Taxation, s 35(3) PLA At Law, interest is held as joint tenancy

2. Where unequal payment of purchase monies occurred Can be joint tenants at law, common at equity with non-contributor holding

beneficial interest on trust. Calverley v Green Exception for H and W, if H buys, W has joint interest in law & 50% interest

in equity. Trustees John Daniel v Cummins 3. In Mortgages – s 35(2) PLA

Eg, If A B and C in Joint, A dies, B and C get interest at law, in equity B and C hold A’s interest on trust, for their legal representatives.

May extent to leases possible Malayan Credit v Jack Chia

Rights Between Co-Owners

1. Rights to Occupation All parties have right to occupy property subject to the other owner’s rights

Includes bringing strangers on Thrift v Thrift (lover)o Can lease to a tenant, but tenant does not have exclusive possession.

Can exclude parties other than co-owners Catanzarti v Whitehouse No liability to pay rent as long as no exclusion occurring Luke v Luke

o Except where; Agreement to pay rent Making a claim for contribution to improvements, must offset rent

payments Teasdale v Sanderson Relationship breakdown Callow v Rupchev Where there has been ouster , occurs when;

o Not reasonable for excluded co-owner to exercise right of occupation Re Thurgood (eg, police, and drunkenness)

o Denying other’s interest in property Biviano v Natolio Changing locks Beresford v Booth

Rights to court order for entry to property, or payment of rent to compensate for loss of comparable lodgings Biviano v Natoli

2. Rights to Profits Right to action for account where one co-owner has received more than their

“proportionate share of profits” s 43 PLAo Exception where;

Profits are due to co-owner’s own labour based on Henderson v Eason Can be factored in accounts on sale (s 38) as a result of s 42.

3. Rights to Compensation for Improvements and Repairs C law had no remedy unless;

• Contract• Joint obligation to make improvement Leigh v Dickeson

Equity• Right when co-ownership brought to end. Limit is to stop rich co-owners incurring

expenses to force poorer coowners out.• Claim only upon wind-up, claimee doesn’t have to have done work, just incurred

expense Brickwood v Young• Consider set-off for rent received potentially.

• Improver has right to lesser of (McMahon v Public Curator);• Cost of improvements or• Increase in land value

No claims for;• Ordinary repairs McMahon v Public Curator

• Unless, agreement exists.• Common obligation exists• If repairs go beyond maintenance, eg, replacing a roof Forgeard v Shanahan

4. Liabilities for Outgoings Joint liability for;

o Rates Scapinelloo Mortgage payments Forgeard v Shanahan

Insurance and pest control not joint liability Forgeard v Shanahan

5. Termination of Co-Ownership

Termination of Joint TenancyCan occur by;

1. Conversion into tenancy in severalty2. Severance – Conversion to tenancy in common

Destruction of a joint unity; alienation, written agreement Williams v Hensman (s 11(1)(a) PLA)

o (must be binding contract Public Trustees v Fiefel, ando registered s 181 LTA

or conduct Williams v Hensman Cross transfer can occur Wright v Gibbons Transfer in equity or law Corin v Patton

Mortgage doesn’t for Torrens land Lyons v Lyons, s 172 LTA “charge”

Lease doesn’t for Torrens land, just suspends Frieze v Unger Bankruptcy if a unity is destroyed. A mutual will won’t itself destroy joint tenancy, but will ensure upon

death of all tenants that the wishes of all tenants are supported. Court orders effecting it Re Pozzi Informal agreements are ineffective (as in Corin v Patton) Homicide, means (Re Stone);

o Surviving joint tenants get their proportionate share under right to survivorship.

o Murderous joint tenant retains the proportionate share they had prior to the homicide.

o The share that should have transferred to the murderous joint tenant is distributed according to the will of the murdered tenant, held on trust in equity.

Rasmanis v. Jurewitsch By informal agreement in Burgess but unlikely to follow in QLD,

especially given s 11(1)(a) PLAo When formal agreement indicates a method to sever, can

apply (pay out) Sprott v Harper Severance by course of dealing occurs where objectively it appears

that the parties do not consider the tenancy to be one held jointly. Saleeba v Wilke

o A lack of concluded (but attempted) severance would indicate still a joint tenancy.

o Negotiations alone are not sufficient Magill v Magill 3. Partition or Sale

Severance under LTA Can occur unilaterally s 59 (1)

Order must be delivered to other joint tenants s 59 (2) Effective on registration s 59(3)

o If die before registration, no unilateral severance Lennon v Bello If die after registration, the interest passes under will Peldan v Anderson

Termination of Tenancy in Common Sale to one party. Partition or Sale

o One or more co-owners can make substantive application to court for partition or sale. S 38 PLA

Trustees hold property s 37A To effect physical partition of land s 37B

Application for sale could be converted to partition if good reasons for doing so are provided s 38(4)

Pannizutti v Trask – Won’t do where minor party is doing so to benefit themselves. Discretionary.

Re Darby – Not going to partition if decrease value (agricultural land becoming too fractured).

Court may have discretion to deny application for sale Nullagine v WA Club Where parties have not expressly excluded statute. Greater ownership, probably greater right to make order for sale.

(Nullagine had 50% interest) Having contractual method probably limits s 38 application

Permanent Trustees v Coral

Leasehold Interests in Land

Always Require;1. Legal Right to Exclusive Possession

Necessary but not sufficient alone – One of substance not form Radaich v Smith

Look at all circumstances to determine if exists, nature of premises, and intention. Terms alone not definitive Radiach v Smith

Lessor still has right to inspections s 107 PLA Intention through terms can support view

2. Certainty of Duration If lacking, void for uncertainty Prudential Assurance v London Residuary Definitive start, continuance and ending Say v Smith

Contingencies suffice for starting Southcoast v Look but not ending Lace v Chantler

For duration of life acceptable Haslam v Money for Living 3. Proper Creation

a. In writing, etc.

TYPES OF LEASES AND TENANCIES 1. Fixed Term

Lease for a define period of time

Duration certain from outset Do not need to enter land prior to taking possession s 102 PLA

2. Periodic Tenancy Defined periods, eg, week to week. Creation by;

1. Express agreement, or2. Legal Implication

Terminated by valid notice under PLA Must be (s 131);

1. In writing and signed2. Acknowledge premises3. Give time for termination, being at least 1 period4. Provided before end of current cycle.

At least one period’s notice

Served to tenant, placed on the property conspicuously, given to 18 year old there s 132 PLA

o Weekly – s 133 o Monthly – s 134o Yearly – s 135

3. Yearly Tenancy Created by;

1.Express Grant2.Implied Agreement3.Holding Over4.Terms of lease are too vague or uncertain5.Informal agreements

Implied once rent is paid Moore v Dimonda. Not the case now due to s 129 PLAb. Each payment is its own divisible period.c. No agreement for duration, then no agreed upon duration

Dockrill v Cavanagah

Terminated by; At C Law – Minimum 6 months notice from completed cycle of

tenancy PLA s 135 does not affect if expressly created yearly tenancy S 129 – Says if no formal agreement, then tenancy at will of both

parties with 1 month writing notice necessary for termination4. Tenancy at Will

Created in any of the following, where tenant has possession and;

1. Negotiations as to terms of proposed lease/tenancy continuing but possession exists

2. Purchase of property likely in future3. Rent not paid regularly enough to create periodic tenancy 4.Tenant in occupation after expiry of lease, but prior to paying rent on

periodic basis Termination;

1.Notice for a reasonable period – s 137 PLA Based on circumstances of creation, nature and terms of lease itself.

2.Generally 1 month is reasonable Turner v York Motors Consider relevant circumstances

5. Tenancy at Sufferance Where party “holds over” after termination of a lease

6. Tenancy by Estoppel Both lessor and lessee are estopped from denying existence of lease Industrial

(Barton) v Associated Electrical

Requirements for Creation of Lease

Leases more than 3 years In writing and signed by lessor ss 10, 11 PLA Evidenced in writing and signed by lessor s 59 PLA Torrens Land

o Effective upon registration (legally) s 181, 182 If not complied with, void at law and ;

o No legal estate passed to lessee o No legal interest in land for period stated by leaseo But if in possession and paying rent, C Law implies yearly tenancy (Dimond)

PLA converts to tenancy at will, s 129 – Terminable with 1 months’ notice Effect in Contract

o If s 59 PLA satisfied – Contractually enforceable for damages Leitz Leeholme v Robinson

Effect in Equityo If in writing and spec performable, Walsh v Londsdale will apply

Consider doctrine of part performance to oral leases

Leases Less than 3 Years Can be created legally orally s 12(2) PLA

o Possession must be taken Do not have to be registered s 185(1) LTA, but not indefeasible.

Covenants in Leases

For Quiet Enjoyment• Landlord (and agrents) cannot disturb tenant’s possession and use of premises Kenny v

Preen • Also liable for acts of third parties disturbing tenant where (Australian Traveller v Marklea)

1. Aware of disturbance2. Has power to stop disturbance (aka other tenants are disturbing affected tenant)

• No liability if inherent defect Southwark v Baxter 3. Landlord fails to exercise ability

• Examples of breach;• Overflowing pipes Martins Camera v Mayfair• Cutting electricity/gas Perera v Vandiyar• Blocking property, limiting customers Berndt v Walsh • Excessive noise Southwark v Baxter

To Not Derogate from Grant Landlord must not do anything that interferes or is inconsistent with purpose of tenant’s

lease of premises Aldin v Latimer Aussie Traveller v Marklea where aware of reason for use of premises. Does not include pure economic loss Port v Griffiths

To Maintain Premises in Good Repair in Short Term Leases Fit for human habitation Implied by PLA s 106(1)(a)

o Must be clean, fit to live in, in good repair, and meets Health and Safety Standardso Fit to live in if normal use of property will not have adverse effect on health or lead

to injury Summers v Salford Corp Obligation only arises where landlord knows or should have known of defect O’Brien v

Robinsono Liability in tort where failure to take reasonable care for safety of premises and

damage to tenant occurs that is reasonably foreseeable Northern Sandblasting v Harris

Now limited to cases where clear negligence on landlord’s part – No strict liability Jones v Bartlett – Must take mitigation measures.

Tenant’s RemediesFor breach of covenant by landlord, may claim;

Damages, including for loss of bargain if lease repudiated Terminate lease (if serious breach)

Rent owing will be set off against damages British Anzani

Powers of LandlordUnless otherwise agreed, s 107 PLA implies rights;

To enter and view premises

To enter and repair To enter and carry out requirements of public authority To re-enter and take possession

Tenant’s Covenants Pay rent – If not express, implied s 105(1)(a) Keep in good and tenable repair if no other agreement s 105(1)(b)

o Long Term Leases Decided with regard to condition at start of lease Exceptions for general wear, fire, lightning, storms. Age, character, location and use also relevant, not absolute state of repair

Proudfoot v Hart Direct effects of wear and tear, does not cover consequential damage due to

wear and tear Haskell v Marlow Can be contracted out of

o Short Term Leases Short term – landlord must maintain fit for human habitation s 106(1)(a) Lessee must take care, and responsibility for own damage/damages of

others who are invited onto premises s 106(1)(b) Undertake regular maintenance and not wilfully/negligently damage

Warren v Keen Cannot be contracted out of s 106(2) Damages limited to value of diminution of value of reversion s 112

Not to assign or sublet if term expressly includes need for lessor’s consento Cannot be withheld unreasonably s 121 PLA

Consideration of landlord’s interest, financial position of proposed assignee Houlder v Gibbs

Have to submit all relevant information provided;Then court determine what reasonable person in position do Daventry v Bacalakis

May be able to consider landlord’s plans for building JA MacBeath v Jenkinso Failure to seek approval is breach of covenant

Assignment of Leases All original covenants implied to assignment s 53(2) PLA On assignment, only covenants that touch and concern the land are enforceable and pass

with the estate to the assignee (not under original contract because privity) Spencer’s Caseo Do so if affect landlord-tenant relationship, nature, quality, value or enjoyment of

demised premises.o Eg, pay rent, repair, not assign/sublet, insure and options to renew Mercantile

Credits v Shell Options to purchase don’t Re Albernale

Advertising elsewhere eg.

Subleases Tenant has privity of contract and estate with sub-tenant. Landlord can end head-lease for sub-tenants breach of this.

Assignment of Reversion When sold, all covenants that run with land remain.

o Right to sue (of tenant) remains s 117 PLAo Right to be sued (of landlord) remains s 118 PLAo Option to renew lease remains Muller v Trafford

Determination of LeasesOccurs by;

1. Time of lease passing2. Notice3. Surrender 4. Forfeiture

Forfeiture Breach of covenant by tenant leading to landlord terminating. Requires;

1. Express right to forfeiture in leaseImplied where (s 107(d) (can be excluded))

1. Rent in arrear 1 month2. Covenant breached for 2 months

2. Tenant breach lease3. Service of notice to tenant unless exception says don’t have to

i. Service requires (s 124 PLA), Ex Parte Taylor1. What complained of2. Requirement for remedy by lessee 3. Requirement for payments if relevant

ii. Tenant has reasonable time (14 days for rent, 3 months repairs) to respond4. Breach must still be current at expiry of notice period5. Landlord must effectively forfeit lease

i. Peaceful re-entry MacIntosh v Lobel1. Possible under s 69 LTA

ii. Unequivocal demand Ex Parte Whelaniii. Court action for possession Moore v Ulcoats

6. Tenant must not be granted relief against forfeiture under s 124(2) i. Discretion in equity for court s 124(7)

1. Generally relief if non-payment of rent rectified Gill v Lewis2. Consider conduct of tenant, gravity of breach, wilfulness of breach

re non-payment of rent Stieper v Deviot3. Must have clean hands to come to equity Steipor v Deviot

Waiver Unequivocal act indicating lessor will not enforce legal right to forfeiture Lessee must establish;

o Lessor aware of breach of covenanto Lessor did an unequivocal act recognising continuing existence of lease, eg accepting

subsequent rent. If waive right, and then other later breaches of (same or different) covenant, lessor still has

right to terminate s 119 PLA

Option to Renew/Purchase Leased Premises If tenant breach covenant, landlord has right to refuse renewal/sale within 14 days of

tenant’s ability to exercise their option – s 128(4) PLAo Tenant can seek court’s relief within 1 month of landlord denying exercise of option.

Enforcement of Lease ObligationsLandlord’s Remedies

Where the tenant is in breach of covenant, a landlord can:

(1) Forfeit the lease;a. Losses recoverable:

i. Rent owing to dateii. Damages for breach of covenants

(2) Damages for breach of contract;(3) Damages for repudiation or fundamental breach of the contract

a. Losses recoverable:i. Rent owing to date;

ii. Damages for breach of covenants;iii. Any actual or Prospective losses

1. E.g. finding a new tenant/loss of rent if at reducted rent

NB. Landlord has duty to mitigate losses Wood Factory v Kiritos

Repudiation Occurs when one party indicates unwillingness to not be bound by contract Shevill v

Builder’s Licensing Boardo Manifestation of unwillingness or inability to comply with obligations under lease,

does not need to be an essential term Wood Factory v Kiritoso Consistent, deliberate breaches of fundamental term Shevill v Builderso Culmination of many, non-repudiatory breaches Progressive Mailing v Tabali

Landlord can either; Accept (terminate lease) Waive breach Seek damages for all losses, including prospective ones (unless fundamental

term breached) Forfeit lease and seek damages up until forfeiture

o Essentialness of term depends on construction of whole lease New Corp v Bank

Courts prefer to see payment of rent as non-essential if not expressly stated Shevill v Builder’s Licensing Board

Retail Shop LeasesStep One: General Application of the Act

S13 Applies to all ‘retail shop leases’S 19 Cannot be contracted out of

Step Two: What is a retail shop lease?

S5: Schedule

A retail shop lease is a lease of a ‘retail shop’ other than:(a) a retail shop with a floor area of more than 1000m2 by a listed

corporation or a listed corporation’s subsidiary;(b) a retail shop within the South Bank corporation area if the lease is a

perpetual lease… of at least 100 years(c) Premises in a theme or amusement park;(d) Premises at a flea market, including an arts and craft market; or(e) A temporary retail stall at –

a. An agricultural or trade show; orb. A carnival, festival or cultural event

Step Three: What is a retail shop?

S5: schedule

A retail shop is any premises in a ‘retail shopping centre’ or any premises not in a shopping centre but used for purposes of a ‘retail business’.

Step Four: What is a ‘retail shopping centre’?

S8 A ‘retail shopping centre’ is a cluster of shops where:(a) 5 of more are used for retail business;(b) the premises are owned by one person or comprise lots within a

single community titles scheme;(c) all the premises are located in 1 building, or 2 or more if separated

by common areas or a road(d) the premises are promoted as a shopping centre

Step Five: What is a ‘retail business’?

S5: schedule

A business prescribed by regulation as a retail business (i.e. business whose whole or predominant activity is a combination of the sale, hire or supply of goods or services mentioned in the schedule to the RSLR

Note: ‘lease’ is used broadly, to include all forms of interest giving a right to occupy premises even if non-exclusive: s5 schedule.

S19 Where the act applies, the parties cannot contract out of minimum lease conditions

Rent based on turnover – ss25-26

S9 Turnover is the gross sales of a business for any particular periodS25 If rent is based on percentage of turnover, the lease must specify the formula

to be usedS26 Lessor not to disclose turnover informationRent Review ss27-36Connor Hunter (a firm) v Keencrest Pty Ltd had allowed ratchet clauses, now not allowed due to s 36A.

S27(2) The rent may not be reviewed more than once in any year (except first year)S27(4) Only one basis of method per rent review is permitted, although different

bases can be used throughout the lease

S27(5) Bases for which a rent review can be reviewedS27(5)(g) Can combine multiple bases to make oneS27(8) Allows lessors and major tenants (lessee of 5 of more shops) to contract out of

provisions in s27S27(10) Rent increases can be cappedS27(11) Invalid review of rent (i.e. more than one review of lease in a year; review

using more than 1 basis or those set out in s36S28 If basis of rent review is current market rent and parties cannot agree on what

it is, the rent will be determined by a special retail valuerS36 Certain rent review provisions of leases void if:….

(d) Reserves to a party a discretion to apply 1 or 2 or more methods of calculating the rent of the leased shop on a particular review of the rent;

(e) Provides for rent of the leased shop to change on a particular review of the rent in accordance with whichever of 2 or more methods of calculating the change would result in the higher or highest rent

Payment of Lessor’s Outgoings ss37-38

S7 Outgoings are the lessor’s reasonable expenses in relation to operating, maintaining or repairing the shopping centre, and charges, rates, taxes payable by the lessor as the owner of the centre

S37(2) (a) If the lessee is required to pay all/part of lessor’s outgoings the lease must specify the outgoings payable, how they will be determined and apportioned to the lessee, and how the outgoings may be recovered by the lessor from the lessee

(b) The lessor must give to the lessee an annual estimate in the approved form of the outgoings at least 1 month before the start of the period to which the estimate relates

S37(3) The outgoings shown in the estimate must be itemised so that the amount shown for each item is not more than 5% of the total outgoings shown in the estimate or statement (unless relating to a charge, levy, rate or tax – s37(3)

S38(2) The proportion of a lessor’s apportionable outgoings … payable by a lessee must not be more than the proportion that the area of a lessee’s leased shop bears to the total area of all premises in the centre/building …

Payment of key money and amount for goodwill prohibitedIf a logical connection with the lease granting, then counts potentially as key money Ocean Square v Duranzo

S5: schedule

Key money means an amount to be paid to, or at the direction of, a lessor by way of a premium, non-repayable bond or otherwise, for the granting, renewing or assigning of a lease, or any benefit to be conferred on, or at the direction of a lessor for the granting, renewing or assigning of a lease.

S39(1) Payment of key money/goodwill must not be sought/accepted by the lessor, and can be recovered as a debt (39(3))

S39(2) Exceptions:(a) Can recover lessor’s costs incurred in investigating proposed assigned(b) Recover expenses incidental to assignment(c) Receiving payment of rent in advance if the amount paid is not more

than the rent payable for 1 rental period under the lease;(d) Getting a repayable bond;(e) …(f) receiving payments from the lessee for amounts spent fitting out the

leased shop;(g) ….

Option to Renew s46

S46 If the lease contains an option to renew, then the lessor must give notice of the option date in the lease at least 2 months but not longer than 6 months prior to the date by which the lessee must exercise the option

S46AA If a lease does not contain an option to renew, then the lessor must either notify the tenant as to whether the lessor intends offering a new lease, and if so on what terms within the notice period.This notice period is 6 months prior to the end of the lease in the case of a lease for more than a year; and 3 months for a lease less than a year. The offer cannot be revoked until one month after it is made.

S46AA(4) If the lessor does not give notice in the notice period, then the lease is extended until 6 months after the lessor gives the notice (the extended period).However, this only applies if the lessee, by written notice, given to the lessor before the lease would expire, asks for extension.

S46(5) The lessee may terminate the lease before the extended period ends by giving at least 1 months written notice of termination

Right to Compensation ss42-44

S42 Retail shop lease includes these sections (not if periodic tenancy, or tenancy at will)

S43 (1) When compensation is payable by the lessor(a) substantially restricts the lessee’s access to the leased shop;(b) takes action that substantially restricts access by

customers/flow of potential customers;(c) causes significant disruption to the lessee’s trading in the

leased shop/does not take reasonable steps to prevent/stop significant disruption within the lessor’s control

(d) does not have rectified as soon as is practicable any breakdown of plant/equipment under the lessor’s care or maintenance, or any defect in the centre;

(e) neglects to clean, maintain or repaint the centre;(f) causes the lessee to vacate the leased shop before the end of

the lease or renewal of it because of extension/refurbishment/demolition

(2) Where the lessor has made false or misleading statements

S43A When compensation is payable by other partiesS44 (1) If parties cannot agree on amount of compensation, it is to be decided by

way of dispute resolution.(2) An agreement under the lease about compensation payable is void to the extent it limits the amount

Lease Documentation and Disclosure Statement: ss22-23

S22(1) A draft lease and a disclosure statement must be provided to the tenant at least 7 days prior to the tenant enters into a retail shop lease (this can be waived if a major lessee – lease of 5 or more shops – s22(6))

S22(3) Lessee may terminate the lease by giving written notice to the lessor within 6 months after entering into the lease

S22(4) The lessor is liable to pay to the lessee the reasonable compensation decided by way of dispute resolution process for loss or damage suffered because of noncompliance/defective statement

S22(8) Defective statement means a statement that is incomplete or contains information that is false or misleading in a material particular.

S22A Before entering into a lease, the prospective lessee must give the lessor a disclosure statement

S22D A prospective lessee, who is not a major lessee must give the lessor a financial advice report and a legal advice report

S22C Lessor’s and prospective assignee’s disclosure obligations to each otherS23 Lessor is obliged to give lessee a certified copy of the signed lease within 30

days after it is signedS22B Assignor’s and prospective assignee’s disclosure obligations to each otherS50A An assignor is released from ongoing liability under the lease from assignment

if each of the lessor, assignee and assignor have complied with their disclosure obligations under s22B and s22C

Payment of lessor’s legal expenses

S24 Lessee’s obligations to make particular payments (can only have the following):(a) rent(b) If specified in the lease: lessor’s outgoings/damages for breach of a

term/indemnity given by lessee to lessor/interest on arrears of rent/outgoings

(c) Lessor’s reasonable legal or other expenses incurred in responding to a request by the lessee for a variation of the lease/consent to the lessee entering into a sublease/licence with another person

S48 Lessee’s liability for costs associated with preparation etc, of lease (cannot be liable for legal costs in relation to preparing, renewing or extending the lease, submitting the lease for reassessment under the duties act)