Leasing
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It is trite law that a slight variation to a lease may effect a surrender and re-grant. See: Pascoe-Webbe v Nuguna Pty Ltd (1985) 3 BPR 97,231 (SC, NSW per Young J). In Richmond Football Club Limited v Verraty Pty Ltd [2011] VCAT 2104 a variation to a lease had major consequences for an unwitting…
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The termination of a lease automatically terminates any sublease. See: Bradbrook, Croft & Hay Commercial Tenancy Law, para 19.6. Where a landlord seeks to enforce a right of re-entry or forfeiture against a tenant the Court, on application of the sub-tenant, may vest the property in the head lease in a sub-tenant for the whole of the term…
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The issue of whether it is possible for a tenant to obtain relief against forfeiture of an option for a further term is often raised in circumstances where the tenant was in breach of the lease when the option was exercised. In Lontav Pty Ltd v Pineross Custodial Services [2011] VSC 485 Dixon J rejected a submission that…
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Detailed examination required to determine if a tenant has parted with possession of leased premises
Most leases preclude the tenant from parting with possession of the leased premises without the prior written consent of the lessor. It is not always easy to determine whether a tenant has parted with possession and invariably a detailed examination of the facts is required. In Lontav Pty Ltd v Pineross Custodial Services Pty Ltd [2011] VSC 278 Hargrave J undertook such…
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On 1 September 2011 the law governing goods left on leased premises following the termination of a lease will be governed by Part 2D of the Fair Trading Act 1999. Part 2D replaces the repealed ss.42A to 42F of the Landlord and Tenant Act 1958. Part 2D applies to “goods under bailment” (s.32ZS(1)). A landlord is not…
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At common law a tenant may not set-off a damages claim against a landlord’s claim for rent (Meagher, Gummow & Lenane’s Equity Doctrines and Remedies, 4th ed, para [37,045], p1056). However, a tenant may claim an equitable set-off provided that the tenant’s equity “impeaches” the landlord’s title to the demand for rent. See: British Anzani…
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Leases commonly deem there to be an assignment of the term of the lease if change in the principal shareholding of the tenant or the directors of the tenant takes place that that alters the effective control of the tenant. The landlord’s written consent is usually required to such an assignment. If there is a term in the…
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In Victoria a purchaser of land takes the land subject to “the interests of a tenant in possession of the land”. See: s.42(2)(e) of the Transfer of Land Act 1958. The section protects a person who is in actual occupation of the land. Finkelstein J said the following in Money for Living (Aust) Pty Ltd (Administrators Appointed)…
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Traditionally leases in Victoria have not been registered because of the protection afforded by s. 42(2)(e) of the Transfer of Land Act 1958 which provides that : “….land which is included in any folio of the Register or registered instrument shall be subject to – ….. (e) the interests of (but excluding any option to…
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There is a common misconception that receipt of a valid notice under s 146(1) of the Property Law Act 1958 requires the tenant to rectify the defaults alleged within the time specified. The purpose of a notice is to give the tenant an opportunity to consider its position and give a response: See: Primary RE Limited…
