Leases Flashcards
Georgeski v Owners Corporation
AUS
LEASE V LICENCE
Plaintiff had a Crown licence for a jetty (foreshore owned by Crown). Defendants neighbors exercised their right as members of the public to walk along the foreshore but had been going on to the pathway, jetty and slipway. The plaintiff sued them for trespass.
Held a license confers occupation at best and suing in trespass is only for lessees (prefers minority decision in Manchester Airport).
Manchester Airport v Dutton
UK
LEASE V LICENCE
Manchester Airport wanted to build a new runway which required taking down trees in a nearby Woodland area owned by English National Trust. The airport had statutory powers to do this and was granted by National Trust a license to do so. Before work started protesters entered the woodland to try prevent the cutting down of trees.
Court held that the licensee could sue in trespass - Majority held that the traditional approach was outdated as its historical position was not serving any purpose. Here it is necessary that the licensee sues in trespass because the protestors were preventing them for using the land in a way there license entitled them to.
Sealink
NZ
LEASE V LICENCE
Obiter comment that a licensee may be able to sue in trespass where they have factual possession of the land that was trespassed e.g., although they don’t have exclusive possession they have high level of custody and exclusive control.
Sealink does not met this threshold of control due to its fairly limited rights. Therefore, this case only states the court is open to the idea that a licensee could sue in trespass but it not directing binding NZ authority. So have to look at overseas authority on this point.
New Zealand Fish & Game Council v Attorney-General
NZ
LEASE V LICNESE
Farmers granted pastoral lease to farm on South Island High Country.
It was held to be a lease because the crown was not retaining any rights and the purpose of the grant was to alienate their rights subject to some limitations where grantees consent was need for only the intrusive rights.
A lease is where you have exclusive possession, whereas a license if were you have mere occupation of the property, and the owner still retains absolute rights. However, court here told us that can be lease even if don’t have exclusive possession if significant extent of obligations are given to the occupier that it would be unreasonable to say that they do not have a valid interest. Therefore, it is a very fact dependent assessment.
Silbrad Company v Kanters and Edwards
CANCELATION OF LEASE
Silbrad leased rural land from Kanters. Kanters are refusing to renew the lease on the basis that Silbrad has breached multiple covenants and is a bad tenant.
Court did not grant relief against cancellation because breached outweighed the consequences to the applicants if relief wasn’t granted.
There were four serious breaches and a complete breakdown in communication between the parties so would not be practical to grant relief for ongoing relations. Silbrad was the more hostile party which suggest breaches were likely to continue if relief given.
Strong v Hurunui Hotel
CANCELLATION OF LEASE
The applicants are owners and landlords of a historic hotel which requires ongoing maintenance. The tenant has breached the covenant for redecoration and landlord issued cancellation of lease for breach of covenant.
Court awarded relief against cancellation - relief was conditional on tenants completing redecorations within a short time frame.
Judge weighed up the significance of the breach against the loss to tenant if relief of cancellation was not granted. Because the loss to tenant was large and there was no evidence that the breach will have lasting damage if it is remedied quickly, condition relief was granted.
Mulholland v Waimarie Industries Ltd
CANCELATION OF LEASE
Tenant seeks relief of proposed cancellation for failure to pay rent.
Court did not issue relief to cancellation of lease because the tenant was hopelessly insolvent - has not demonstrated that would be able to pay rent in the future.
It is harder to get relief in breach of covenants that in failure to pay rent.
Star Energy v Bocardo
TRESPASS
This case involved a dispute over oil exportation with pipes at 800, 950 and 1300 ft below surface. The owners of land had not consented and bring a claim of trespass.
Held that the property owners possession extended to 1300ft sub surface.
Possession of sub-surface land extends to that which human activity can occur. Because the oil exploration activity is able to get to 1300 ft sub-surface then it proves human activity.
For sub-surface you do not need to prove an interference with ordinary use as is required for airspace, but similarly you do not need to show damage.
This case also discussed airspace: you must look at the ordinary use of the land and any use of the airspace that interferes with the ordinary use will be trespass regardless of there being no damage. However, if there is damage caused but exceeds ordinary use of airspace then you can bring a trespass claim.
De Richaumont Advertising v OTW
TRESPASS
Common law starting point is that respondent has no right whatsoever to enter the appellants land without permission.
