LLB220 Lecture Notes - Lecture 9: Adverse Possession, Tenant Farmer, High Standard Manufacturing Company
Week 9 and 10 – Leases
Estates of Less Than Freehold – Leasehold
Historical Development
• Old term for leases – demise
• Historically, leases were classified as personalty rather than realty – not recognised
as an estate in land at all
- Some circumstances where the lease was classified as realty, e.g.:
- Intestacy → realty dealt with by the royal courts which employed feudal
principles
• Personalty dealt with by manorial courts
- Operated beneath and outside feudalism proper
- Relied on Roman law approaches
- If the lessee were evicted, there were only contractual remedies available
against the lessor for breach of contract
• Developments in the law:
- Leaseholder protected from third parties → action of ejectment
- Leaseholder protected as that of the freeholder
- Leases no longer seen as inferior to freehold estates
Distinction
• Freehold interests – fee simple, fee tail, life estate. No fixed term
• Leasehold – specific term
• Leaseholds originally considered a contract, not part of the system of estates and
tenures. Originally a form of personal property (chattels real)
- Now a lease is both a contractual relationship and an interest in property
- Also governed by statutes
Key Aspects
• Parties:
- Person who owns the land/granting interest → leaseholder/lessor/landlord
- Person who leases/taking the interest →Lessee/tenant
• Lease grants to the lessee the right of exclusive possession of land for a fixed
duration
• Usually created by deeds. Can be created informally
• Tenant can carve out a lease of their own to create a separate interest → sulease.
The e teat is ko as a sulessee/suteat.
Foe teat is ko as head-teat/headlessee
• Contains mutual rights and obligations → called covenants
• Reversion → interest of person who granted the lease. They are sometimes the
eaide a o eaide peso
• Three main types of leases: (1) fixed term tenancy, (2) periodic tenancy, (3)
tenancies at will and at sufferance
find more resources at oneclass.com
find more resources at oneclass.com
Types of Tenancies at Common Law
Fixed-Term Tenancy
• Fixed term tenancy – exists for a set period of time
• Known starting and end points
• That the specific date is not specified at the outset does not matter if the date is
ascertainable by reference to some other determinant
• Does not require that the time runs continuously
Periodic Tenancy
• Periodic tenancy – exists from one period to another (i.e. month to month)
• Doest eed to e formally renewed each week
- Occurs automatically unless the lessor or lessee brings the tenancy to an end by
breach of covenant or required notice
• Doest hae to e oious i adae he the peiodi tea ill ed eause
the the tenant only has right to possession for the specified period
• Can be determined by notice given by either party at any time
• May be express → subject to the same formal requirements as leases for a term of
years
• More commonly implied by law where tenant goes into possession and starts paying
rent → iplied peiodi tea
Implied Periodic Tenancy
• Two types: (1) implied yearly tenancies at common law; and (2) other implied
periodic tenancies
• Duration depends on how often the rent is paid
- Weekly rent = weekly periodic tenancy
- Rent paid in reference to the year (whole year or part of it) = tenancy is year to
year (Chan v Cresdon (1989) 168 CLR 242)
• Implied yearly tenancies at common law
- Implied by payment of annual rent OR payment of periodic rent in other ways
- See other fact situations CB 533
- The court will imply any covenants which are contained in the agreement
- Governed by CA s 127(1)
• Other implied periodic tenancies
- Implied from the conduct of the parties, or surrounding circumstances
- If a tenant takes exclusive possession of the property and pays rent by reference
to a specific period, a periodic tenancy will arise (Turner v York Motors Pty Ltd)
find more resources at oneclass.com
find more resources at oneclass.com
• Termination of an implied periodic tenancy:
- If yearly, at common law, terminable on 6 oths notice. But now, per s. CA s.
127, if the implied periodic tenancy would be year to year, then instead a
tenancy at will created, determinable at a months notice by either party
- Other implied periodic tenancies, need to give notice of at least period of
tenancy (i.e. if month to month, notice of a month)
- Exception → yearly periodic tenancy → can be bought to an end through notice
of one-half of a period
Tenancy at Will
• Occurs when it is understood that possession exists on the basis that either the
lessor or lessee can bring the tenancy to an end at his/her will
• Occurs when:
1. The tenant occupies property
2. It is agreed or implied that either side may end tenancy at any time
• Can arise by implication, i.e. where a tenant remains in possession after their lawful
tenancy ends, with consent of landlord but no rent yet paid
- Not tenancy by suffrage because there is consent
- Not a periodic tenancy because no rent paid
• Tenant can enforce rights against the whole world except the lessor
• If there a tenancy at will after the end of a fixed term tenancy, terms of fixed term
tenancy continue to apply (unless intention to the contrary)
• Determines on the death of either party
Tenancy at Sufferance
• Arises by operation of law
• Tenant on a fixed term lease remains in possession after their lawful tenancy ends,
without objection by landlord (but with no assent)
• If there is objection to tenant remaining, the former tenant becomes a trespasser
• The tenant by suffrage can be evicted at any time
• Thee is o oligatio to pa et, ut the ladlod a hae a lai fo use ad
oupatio
• If the tenant pays rent and the landlord accepts it, it becomes a periodic tenancy
Tenancy by Estoppel
• May arise where landlord does not have title to grant a lease, purports to grant one
(i.e. mistaken as to title)
- Parties to the lease not entitled to raise the lack of title between themselves
• Binding despite the defect – neither the landlord nor tenant can deny a lease exists
- Exception: cannot be asserted where the tenant is evicted by exercise of title
paramount (e.g. owner repossesses)
- THEN the tenant is liable for mense profits, not rent. Rent already paid can be
reclaimed
• Not binding on the true owner or third parties
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Historical development: old term for leases demise, historically, leases were classified as personalty rather than realty not recognised as an estate in land at all. Some circumstances where the lease was classified as realty, e. g. intestacy realty dealt with by the royal courts which employed feudal principles: personalty dealt with by manorial courts. If the lessee were evicted, there were only contractual remedies available against the lessor for breach of contract: developments in the law: Leaseholder protected from third parties action of ejectment. Leases no longer seen as inferior to freehold estates. Distinction: freehold interests fee simple, fee tail, life estate. No fixed term: leasehold specific term, leaseholds originally considered a contract, not part of the system of estates and tenures. Originally a form of personal property (chattels real) Now a lease is both a contractual relationship and an interest in property. Person who owns the land/granting interest leaseholder/lessor/landlord.
