Leasehold Estates Flashcards

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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
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2
Q

What are 2 conditions for leasehold to be present?

A
  1. Certainty of duration
  2. Exclusive Possession
    (3. Payment of rent is a good indicator)
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3
Q

What are the key points of ‘Certainty of Duration?’

A
  • End date MUST be clear
  • Must be a DATE, not an EVENT
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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
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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
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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
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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
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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

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9
Q

What can you do with a lease?

A
  1. 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
  2. Assigning a lease –> i.e. giving lease to someone else –> REQUIRES permission –> Typically within contracts will specify T&Cs of assigning a lease
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10
Q
A
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