Land law (Leases & Licences, Non posessory rights to others and estoppels)

Question 1

lease elements

Answer 1

1. Exclusive posession
2. For a definite period / certain term

Question 1

types of lease (duration)

Answer 1

Certain fix term- know when it ends, eg a year
Periodic tendency - roll on tendency, eg month to month
Nonsequential lease - not in order, eg You might have a lease for every sat for 3 years

Question 2

license elements

Question 3

tenant default obligaiton

Answer 3

Obligations to pay rent, not alter building without consent, no nuisance, damage or disturbance ad keep premises in good condition

Question 4

land lord default obligation

Answer 4

S 218 - obligation of quiet enjoyment

Question 5

change of LL or tenant

Answer 5

S 241 PLA = everything travels witht the tenant

For assignments of the reversion to Lx, new LL new LX received benefits of all covenants under the lease. LX also subject to all obligations that former L had to T

For assignments of the lease to TX, tenant X becomes current LL’s tenant. (LX owes TX the same obligations L1 owed T1). The original tenant and any new tenant carry on being bound by the obligations for the duration of the lease.

Question 6

cancellation by LL only if:

Answer 6

S 12 cancellation
A = any rent is unpaid for 15 working days after the due date of payment
B = the lessee has failed for a period of 15 working days to observe or perform any other covenant or condition or stipulation

Question 7

procedure of cancellation

Answer 7

S 243 - only cancel lease through this procedure of fair requirements (LL must give formal written notice of the breach and give the tenant time to remedy

Question 8

Strong v Hurunui Hotel

Answer 8

Whether the breach was deliberately committed

The breach was serious, but some of the covenant breaches were made good, and it was not long lasting, and the tenant now had the money to fix it. Breach was weighed up against tenants interest (prejudice on each side). Conclusion = conditional relief (granted by fine margin)

Question 9

Sibrad Company v Kanters and Edwards

Answer 9

Sibrad forgets to give timely notice of renewal. Kanters want out, refuse to renew. Sibrad seeks to force renewal.

Judge decides it would be bad for the lease to continue. Found that Sibrad’s loss was not worth the relief. Some prejudice to tenant did not outweigh the seriousness and prejudice of the breaches to L.

Question 10

When equity will treat an agreement to lease as an equitable lease

Answer 10

• The contract must be enforceable ie normal contractual requirements (consideration) and either:
• That the written & signed by the person you want to enforce against ect* OR
• That though oral/unsigned ect, it has been partly performed **(usually by the tenant entering the land and paying rent

Question 11

do short term leases count?

Answer 11

s209 = ST leases are better than usual off register equitable interests, but not as good as registered interest (leases over 10 years)

Question 12

Fatac Ltd v Commissioner of Inland Revenue (CA):

Answer 12

Certain term and exclusive possession = lease

Question 13

New Zealand Fish & Game Council v Attorney-General [2009] NZHC 538

Answer 13

factors for determining whether excl possession or not:

1. Logical form: grant with subtractions > series of permissions.
2. The most intrusive rights reserved exercisable only with grantee’s consent.
3. Extensive restrictions on grantee, but still consistent with having possession
4. Extent of obligations on grantee – strange if only licence.

Question 14

Sealink Travel Group New Zealand Ltd v Waiheke Shipping Ltd [2008] NZHC 2523

Answer 14

Contractual structure clear, Sealink’s right to use the land is subject to exceptions ect and therefore it is a license.

Question 15

Manchester Airport v Dutton (mentioned in Georgeski)

Answer 15

can a licencee sue in trespass?
(generally no but …)
“… a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by the contract with his licensor he enjoys”

Question 16

Georgeski v Owners Corporation Sp89833

Answer 16

Critiques to Laws LJ judgement in Manchester Airport = Possession involving a mental state - an intention to exclude others and to control that land. “Mere physical presence, or physical use, can never satisfy the test”.

Question 17

Policy argument for whether licensees should be able to sue in trespass

Answer 17

Maintaining integrity of traditional concepts - deeply rooted principle. Need to make sure you have a sufficient interest, before you get rights over third parties

Manchester = opposing view that if the real owner doesn’t want to do anything, why should we prevent the licensee to having a remedy?

Question 18

Dent v Dent

Answer 18

Maybe the trespass claims should depends of the TYPE of licence obtained

Question 19

How rigid is the distinction between leases and licensees today?

Answer 19

PLA - licenses to occupy can be close to leases - such licensees should get the benefits of a leasee (a commercial lease), if a landowner wants to cancel this type of license, they have to comply with all cancellation formalities, and they can get lease’s relief.

Question 19

what are the three factors in determining whether an item is a fixture or not?

Answer 19

1.. Method and degree of attachment
2. Intention
3. Onus of proof (on those who contend that it is a chattel)

Question 19

What is the Holland and Hodgens test

Answer 19

the degree of annexation and the object of the annexation.