Commercial tenancy law

Description

Full Title Copyright Preface Landlord and Tenant Act Comparative Table Table of Cases Table of Statutes Table of Contents Chapter 1 — Relationship of Landlord and Tenant The grant and the term granted A contract creating an estate Exclusive possession the touchstone of a lease Exclusive possession and licences Agreement and certainty Requirement as to writing Term and reversion Subleases Concurrent leases Future or reversionary leases Building leases Rent Leaseholds as personalty Tenancy by attornment Leases created by estoppel Abolition of doctrine of interesse termini Chapter 2 — Kinds of Tenancy The five kinds of tenancy Tenancy for a fixed term — certainty Automatic expiration Provision for notice — overholding clauses Fixed terms and notices to quit Ejectment of overholding tenant Character of tenancy from year to year Creation and determination of yearly tenancies Yearly tenancy presumed where tenant holds over Holding over after short terms Holding over where weekly rent reserved No presumption in absence of necessary intention Periodic tenancy for less than a year Kind of periodic tenancy dependent upon intention Tenancy at will Entry during negotiations for a lease Entry under contract of sale Encroachments by lessee Termination of tenancy at will Tenancy at sufferance Vesting of tenancy on death Chapter 3 — Licences Nature of licences Licence distinguished from lease Matters not decisive Lodgers Employees Miscellaneous cases Agreement for a licence Determination Recovery of possession Chapter 4 — Agreements for a Lease Agreements and leases Uncertainty Statute of Frauds Memorandum and signature Part performance Taking of or continuance in possession Alterations to premises The doctrine of Walsh v Lonsdale Damages Unenforceable agreement as a defence Action for specific performance Chapter 5 — Capacity to Make and Take Leases Capacity to make and take leases Aliens Infants Persons of unsound mind Married women The Crown Municipalities Statutory corporations Administrators and liquidators Receivers Trustees in bankruptcy Unincorporated associations Agents Persons granting leases to themselves Co-owners Mortgagors and mortgagees Trustees Personal representatives Leases invalidated by reason of non-compliance with terms of powers under which they are granted Illegality Chapter 6 — Leases as Contracts Introductory Intention to create legal relations Construction and implication of terms Rectification Fraud, illegality and mistake Frustration Collateral warranty Chapter 7 — Covenants Introductory Construction Solicitor’s duty Rent and lessor’s covenants Covenant to repair Liability on covenant after assignment Permission to act in breach of covenant Covenants concerning user Covenants for renewal Breach of covenants Covenant against assigning without consent Covenants not to assign or sublet Application of covenants to overholding Covenants not to cause nuisance Covenants for quiet enjoyment Covenants to pay rates and taxes and outgoings Chapter 8 — Implied Covenants Covenants express or implied Covenants in law Exclusion by express covenant Quiet enjoyment Implied covenant of non-derogation from grant by the landlord Covenant of fitness by landlord of furnished house Covenant by tenant to use and deliver up in tenant-like manner Covenant by tenant to cultivate in husband-like manner Covenant by tenant to deliver up vacant possession Other usual covenants Chapter 9 — Usual Covenants Usual covenants Usualness a question of fact What are usual covenants? Chapter 10 — Repairs Landlord’s obligations Implied obligation of tenant as to user Waste Emblements Fixtures Covenants to repair and notice Landlord’s covenants Tenant’s covenants Buildings erected after the demise Construction of covenant Fair wear and tear Accident Remedies for breach Chapter 11 — Rent Characteristics — at common law and by agreement Rent control legislation Payment of rent Rent review clauses Contribution Payment of rent after notice to quit Occupation pending completion of sale Tender of rent Covenant to pay rent a usual covenant Action for rent Liability for rent damages after abandonment of possession Illegality Rent period as evidence of nature of tenancy Determination of rent by a third person Variation of rent Liquidator and receiver Personal representative Common law demand Relief against forfeiture Distress Enlargement of lease into fee simple Use and occupation Chapter 12 — Australian Consumer Law and Other Commonwealth Legislation Introduction Restrictive Trade Practices: Competition and Consumer Act Pt IV Consumer Protection: Chapters 2 and 3 Remedies Implementation of the Consumer Law Chapter 13 — Breach of Contract Introductory Agreement for a lease Tender of lease Measure of damages for failure to grant, take or continue lease Agreement for weekly tenancy Covenants to repair Remedies for breach of covenant Miscellaneous covenants Chapter 14 — Renewal of Leases Options and covenants for renewal Not generally perpetually renewable Uncertainty First refusal Effect of exercise of option Lessee in breach of covenant Rent to be determined by third person Mode of exercise Time for exercise Service of notice of exercise Relief in equity Chapter 15 — Assignment and Subletting Assignment Subletting Parting with possession Mesne lessors Power to assign or sublet subject to consent Breach of covenant against assignment or subletting Form of assignment Position of tenant after assignment Position of assignee Benefit and burden of covenants run with the land Assignee to indemnify lessee Chapter 16 — Determination of Tenancies Modes of termination ‘Waiver’ after termination Effect on subleases Effect on power of attorney Effluxion of time Operation of condition Exercise of option to determine — break clauses Merger Merger and registered leases Merger and subleases Surrender Express surrender Surrender at law and in equity Statutory provisions Future surrenders Surrender by one tenant Surrender by operation of law Relinquishment of possession Acceptance by tenant of new interest Surrender by personal representative Grant of lease to third person Effect of surrender Forfeiture Notice to quit Disclaimer Acceptance of repudiation Fundamental terms Removal and disposal of goods left on vacated premises Chapter 17 — Forfeiture Forfeiture not confined to fixed terms Strict compliance essential The three grounds Lease made voidable only Words of condition Covenant made effective by proviso for re-entry Exercise of option to forfeit Proviso for re-entry Re-entry under a proviso for re-entry Actual re-entry Action to recover possession Issue of writ without service Position prior to judgment Common law demand for rent Notice to remedy Effect of forfeiture Mesne profits — double value and double rent Waiver Relief against forfeiture Registered leases Disclaimer Forfeiture and general principles of contract law Chapter 18 — Condition of Forfeiture Forfeiture Notice to remedy Notice not required Necessity for notice Possession claimed by mortgagee Contents of notice Breach incapable of remedy Breach capable of remedy Sufficient period of notice Service of notice Protection of position of lessee Chapter 19 — Relief from Forfeiture Equitable and statutory relief Non-payment of rent Supreme Court Statutory relief Term of relief Sublessees Chapter 20 — Notice to Quit Notice to quit Period of notice Period of notice for weekly tenancy Clear days unnecessary Notice must expire at end of period Statutory modification The ambulatory notice Who may give notice Notice by agent Notice by personal representatives and trustees Notice by corporations To whom notice may be given Verbal notices Informality and want of signature Part of demised premises excluded; extraneous premises included Severance of the reversion Strict or benevolent construction Misdescription of tenancy Variation between notice served on two lessees Date of expiration ‘On or before’; ‘by’; ‘within’ Misdescription of premises Misnomer of landlord Misnomer of tenant Notice referring to other matter Reference to other documents Service Service by post Substituted service Second notice ‘Waiver’ of notice Payment of rent ‘Withdrawal’ of current notice Chapter 21 — Re-entry by way of Self-help The two senses of re-entry Self-help in the recovery of possession Dangers of direct action Legal proceedings preferable Chapter 22 — The Old Action of Ejectment Real actions Ejectment Fictions Nineteenth century reforms Chapter 23 — Retail Tenancies Legislation: Victoria Background Continuing operation of all retail leases legislation Scope of this chapter Retail Leases Act 2003 (as amended in 2005) Commencement of the 2003 and 2005 Acts Extended operation of the 2003 Act Application of the 2003 Act Meaning of ‘retail premises’ Exceptions to the ‘retail premises’ definition (and application of the Act) Residential areas and retail premises leases Formal requirements with respect to leases Renewals, assignments, subleases and the statutory minimum term Key money and goodwill Disclosure requirements Rent and rent review Turnover rent Security deposits Outgoings and other payments Costs and indemnities Repairs, refurbishment, relocation, demolition, alteration and refitting Compensation for interference Unconscionable conduct of landlord or tenant Additional requirements for shopping centres Miscellaneous provisions Functions of Small Business Commissioner Ministerial Determinations Dispute resolution system — alternative dispute resolution Dispute resolution system — Victorian Civil and Administrative Tribunal (VCAT) Chapter 24 — Retail Tenancies Legislation: New South Wales Background Premises subject to the Act Express duties of the landlord Unconscionable conduct and misleading or deceptive conduct proscribed Controls on security bonds Other duties Right to at least five years’ tenancy Rent review Rent based on turnover Rent and other payments Implied terms Prohibited terms Void terms Assignments and subleases Termination of lease Determination of disputes Chapter 25 — Retail Tenancies Legislation: Queensland Background Premises subject to the Act Express duties of the landlord Unconscionable conduct proscribed Other duties Rent review Rent based on turnover Rent and other payments Options to renew Implied terms Prohibited terms Assignments and subleases Termination of lease Determination of disputes Chapter 26 — Retail Tenancies Legislation: Western Australia Background Premises subject to the Act Express duties of the landlord Assignments and subleases Implied terms Rent review Rent based on turnover Right to at least five years’ tenancy Termination of lease Determination of disputes Chapter 27 — Retail Tenancies Legislation: South Australia Background Premises subject to the Act Express duties of the landlord Other duties Right to at least five years’ tenancy and options to renew the term Rent review Rent based on turnover Rent and other payments Implied terms Prohibited terms Void terms Assignments and subleases Termination of lease Determination of disputes Chapter 28 — Retail Tenancies Legislation: Australian Capital Territory Background Premises subject to the Act Express duties of the landlord Controls on security bonds Right to at least five years’ tenancy Rent review Rent and other payments Prohibited and void terms Assignments and subleases Termination of lease Determination of disputes Index