Leasehold Estates Flashcards
1
Q
What is a lease?
A
- Formal legal interest created by a freeholder, whereby possession is vested by another for a specified amount of time
2
Q
What are 2 conditions for leasehold to be present?
A
- Certainty of duration
- Exclusive Possession
(3. Payment of rent is a good indicator)
3
Q
What are the key points of ‘Certainty of Duration?’
A
- End date MUST be clear
- Must be a DATE, not an EVENT
4
Q
What are the key points of Exclusive Possession?
A
- Only ONE in possession of property
–> If landlord can still go onto land w/out permission –> unlikely to be exclusive possession and therefore unlikely to be lease and considered more of a license
5
Q
What are the 2 types of Leases?
A
- Fixed Term Tenancy = arises by formal agreement –> End date is clear and may end lease early
- Periodic Tenancy = implied from situations rather than formalised
6
Q
What are features of leases under 3 yrs in length?
A
- Recognised from crcumstances and will be valid at law EVEN IF NO EFFORT to formalise in writing
7
Q
What are features of leases over 3 yrs in length?
A
- Deed required to create a lease
Do you need to register land?
–> Torrens Land (TL) and lease over 3yrs: Registration Required
–> TL and lease under 3yrs –> s54 PLA exception applies (no need for writing)
–> General Law Land = no need for registration
8
Q
What if no compliance w Formalities?
A
3 yrs and Below = possibly no need for legal lease w/out deed/registration
3yrs or above –> w/out deed means FAILS to accord w required formalities –> turn to equity
9
Q
What can you do with a lease?
A
- Assign sublease –> maintain position as tenant but create new lease in which you are landlord–> Often REQUIRES permission from landlord –> w/out permission is a breach of lease
- Assigning a lease –> i.e. giving lease to someone else –> REQUIRES permission –> Typically within contracts will specify T&Cs of assigning a lease
10
Q
A
