Common Law of Landlord and Tenant Part I and Part II - Essay Example

? Common Law of Landlord and Tenant Part I and Part II and PART I Question Under Australia common law, a lease that is in perpetuity like in the present case is void because Amos has not fixed the duration of the lease with certainty. Amos should fix the duration of the lease term with certainty; it is not adequate to set the duration by reference to a future event. The common law and statutory covenants apply in case various matters arise. The guidance is found in the stated terms in the agreement, statute, and the common law when attempting to solve a problem amid the two parties. The general expressed terms include provisions, such as the tenant will give up possession to the landlord when the lease expires, the landlord is entitled to re-entry in case a tenant does not give rental fee and the tenant has to renovate and ensure the property in good condition. The common law terms apply in case such express terms and statutory restrains are absent. In case an issue arises between the two parties, the court generally looks at the leasing agreement express terms. It is usually up to the common law to fill the gaps about the indirect provisions of a completed lease outside the legislative requirements, which govern the two parties. The Landlord has to include responsibilities within a leasing agreement and the terms are implied the property satisfies the business efficacy test (Liverpool City Council v Irwin 1977) Question 2 David has a license. The Residential Tenancies Act WA (1987) protects anyone who has a residential tenancy agreement and David would have had tenancy if he had not agreed to the written agreement of “license to occupy” from Gerald. The Act describes a “residential tenancy agreement” as an implied or express (verbal or written) agreement, under which an individual (a property’s owner) offers another personal for important consideration (for instance rental fee) the right to occupy, entirely or not or any part of the residential property, or any residential property, for residence purposes. Nonetheless, this act is not applicable in residential circumstances whereby a resident has signed a “license to occupy.” In cases where residents sign a license to occupy the property, it is not essentially similar to a tenancy agreement under the Residential Tenancies Act. The main variation between a tenant and a licensee lies in the fact that a tenant is exclusively entitled to reside in a premise whereas the licensee lacks. For instance, in the present case, David does not have exclusive rights to occupy the premises. Gerald has the right to move David’s business, he does not even have to give notice, and he can even evict him with a short period notice. Tenants have the rights as stipulated by the Residential Tenancies Act and from the Act tenants have greater legal rights than licensees. Question 3 Harold holds a tenancy of the unit. A tenancy is an implied or express (verbal or written) agreement, in which an individual (a property owner) grants to another personal for important consideration (for instance rent) the occupation right, whether absolutely or not or any part of the residential premises, or any residential premises, for the intention of residence. Ivan has granted Harold the right to occupy his property for a valuable consideration –a license fee of ?100 a month. The Residential Tenancies Act section 6 on landlord duties in condition of premises allow Ivan to enter the unit to maintain the premises before it’s occupied by Harold. Nonetheless, the fact that Ivan’s employees enter the unit at any time to maintain equipment interferes with Harold enjoyment of the premises. The Residential Tenancies Act clearly states that a tenant has a right to undisturbed satisfaction of the property without the landlord’s or another person working for the landlord obstruction. The landlord should not cause any obstruction with the practical privacy or peace of the tenant while the tenant is using the premises. Ivan is supposed to give proper notice to Harold before entering the property. If a landlord enters the residential premises without authority or proper notice under Residential Tenancies Act, a tenant can ask that is doesn’t happen again, serve the landlord with a notice for not keeping to the agreement or seek an order from the magistrate court about acceptable entry. Question 4 The “option to renew” clause in the tenancy entitles Gertrude a right to renew the tenancy. The tenancy document provides an option for Freddie to renew Gertrude existing tenancy. For this option to come into effect, there have to be acceptance on the tenant’s part. Gertrude is required to give Freddie a written notice before the date specified in the contract. It is stated that Gertrude will be granted tenancy under identical conditions and this means that the same terms will remain in case she chooses to renew her current tenancy. There should be a well-written option to the renew clauses (Miwa Pty Ltd v Siantan Properties Pte Ltd 2011). It is not unusual for option for renewing clauses to specify that the renewed lease should the similar terms like in the present case, however excluding various clauses or adjusting various stipulations, for instance the next available. Gertrude should have paid all the monies and rent and she should have observed the terms and conditions on her part in the tenancy up to the expiration of the existing term. Freddie is required by allow Gertrude to renew her lease because there is an effective option in the lease. This option for renewal is an irrevocable offer and normally contained as a covenant in the lease and it is enforceable against Freddy. Question 5 Bertha has a fixed term lease. A fixed term lease is usually written and its duration for a fixed term must be certain or tied to definite events so that its duration is certain. In Lace v Chandley (1944), the court held the lease for the duration of war void because its maximum duration would not be certain. However, the legislature decided that it was problematic for leases ending after the period of the war to invalid. The parliament passed an act, which asserted that a tenancy at times of war would be effective as if provided or offered for tenancy grant for a period of decade. It is thus subject to a right that the tenant or landlord can exercise to determine the tenancy, in case the war comes to end before the term expires, by at least a 30 day notice in writing presented after the war has come to an end. In case Bertha wishes to vacate the premises before the end of a fixed term, she can come to an agreement with Arnold. Under the Residential Tenancies Act 1995 (s. 85), a tenant cannot give notice to end a fixed term lease, apart from cases where the landlord breaches an agreement. Nevertheless, the lease is not terminated if the notice is not valid, if it is improperly served, or if the landlord remedies for the breach. Question 6 Henry is entitled to end the tenancy using the notice to quit clause. The notice to quit by Henry of a periodic tenancy ends the tenancy at the expiry date of the notice. The lease agreement between Henry and Martha is periodical. Notices to quit are only used to end a periodical tenancy and not a fixed term. The notice does not amount to breach under Property Law Act because the tenancy is not fixed term-it is quarterly thus periodical. Henry is entitled to end the periodic tenancy without giving Martha any explanation; Martha does not have to be in breach of her lease and the motive of the landlord in not relevant under Property Law Act. Under the notice to quit has to be clear and qualified and it should show that tenancy will be terminated at a specified date. Henry can appoint a manager to sign the notice to quit on his behalf. Henry notice should correctly address the notice of the tenant, the premises, as well as the expiry date. The best method of serving the notice is personal service although the common law service by ordinary post is also valid. The common law requires Henry to give realistic notice. At common law reasonable notice it required to determine a periodical tenancy, however the parties can change the length of the notice required by the express provisions in the lease. Question 7 The notice to quit by Celia is valid. There is a condition clause in lease/tenancy agreement, which gives Celia the right to serve a notice to quit on David only if she required the kiosk for the purpose of her chocolate sales business. Celia has served a notice to quit on David requiring him to leave although though she runs no chocolate business: this constitutes a breach of the agreement. Celia has served the notice to quit yet she does not intend to start a chocolate business in the kiosk as greed. The conditional of tenancy in this case is also conditional upon the occurrence of certain events i.e. Celia starting her chocolate business. The non-occurrence of such events entitles the lessor to terminate the tenancy. Furthermore, the tenancy is periodical and this means that the lessor entitled to end the periodic tenancy without giving Celia any explanation under the Property Law Act. Section 129 (1) of the Property Act on ‘abolition of yearly tenancies’ states that payment of rent from year to year does not imply tenancy. In case there is a tenancy and no agreement on its duration, the tenancy is taken as a tenancy determinable at the will of both parties and either of them can give one-month notice in writing expiring at any time. Celia can use this clause to justify her actions. PART B Question 1 The lease or agreement sets out the way a covenant is enforced. The landlord has the power to enforce the covenants within the lease. This means that Nellie will generally need to instruct Martha to enforce the covenant against Oswald and Petra and when required by the lease indemnifies the landlord against the costs involved. Under the Residential Tenancy Act, it is the right of a tenant to enforce of quiet enjoyment. The covenant with the landlord assures that the tenant shall have the legal quiet as well as the peaceable possession and enjoyment of the leased property. It is therefore the duty of the landlord to protect a tenant peaceful possession of the property. Nellie can also take legal action directly against Oswald and Petra for breach of covenant. Whether or not Nellie can obtain a decree of specific performance to enforce the registration of a lease to protect options to renew and full terms depends upon whether has complied in all respects with the lease. A lessee who is in breach of an obligation can be denied performance. Balanced against this is the landlord obligation to the landlord to grant a full term, including the benefits of the options. If Oswald and Petra are held liable to pay the rent arrears in question to Nellie, they will pay all the arrears and compensate for any damage that Nellie has gone through because of the breach. Under a contract to assign or grant a term of years whether resulting from leasehold or freehold, the intended lessee, or assign is not entitles to call for the title to freehold. Oswald and Petra have contravened the residential agreement and thus a magistrate court has jurisdiction to determine the prescribed dispute. Such disputes cannot be justified by another tribunal or court. An application made under Residential Tenancies Act normally involves a claim of some amount of money over the prescribed amount by the Landlord or Nellie. The enforcement clause in this Act stipulates that a person should not fail to comply with an order in to restrain breach of the agreement. The court may order the two parties to pay a penalty of $2,000. An order than it made under the Residential Tenancies Act can be enforced as if it were the court’s judgment. If Martha had granted the lease to Oswald for 21 years in 1993, with the lease being assigned in 2008 and 2009, the Residential Tenancies Act would not have applied in breach of contract by Oswald and Petra and the conditions for paying the rent arrears might have been different. This act is only applicable to any residential tenant agreement that parties got into, extended, renewed, assigned, or else transferred after commencing this Act. About Repair Obligations Under the Residential Tenancies Act, Sec 68 it is up to the landlord to ensure that the premises as well as the subsidiary property are in a good state of repair while commencing tenancy with a tenant. The landlord is supposed to keep the premises in a realistic state of repair taking into account their age, character as well as their prospective life. The landlord is also supposed to comply with the statutory requirements that affect the premises. These obligations apply although the tenant has been issued with a notice of the property state of disrepair. Nonetheless, the landlord is not held as being in violation of duty to repair except if he has notice of the defect requiring repair or if he does not act with realistic attentiveness to ensure the defect is repaired. In case the landlord is a registered housing co-operative, the regulations usually lessen the imposed duty, as above. In case the property is subject to a housing upgrading notice fixing the utmost rental fee for the property, the landlord’s responsibility to refurbish the premises is irrelevant. The law also stipulates that in case the property or subsidiary property is in a state of disorder, which does not come about from contravening residential tenancy accord by the tenant, the landlord is responsible for repair. The state of property disrepair is possibly to cause personal injuries, undue inconvenience, as well as cause damage to property if it is not remedied. The tenant should notify the landlord of the disrepair condition or make a rational effort to act in that manner. The tenant might incur expenses in having the property disrepair repaired and he or she is allowed to recover the costs incurred when undertaking the repairs. Nonetheless, the tenant cannot recover the repairing costs in case the property is set for a housing upgrading notice, which has fixed the utmost rent being paid for the premises. This approach to the law is fair. The roof of the building is leaking, the building’s under-floor heating system has broken down, it is beginning to subside because of defects in the foundations, and the main outside walls are in danger of collapse. All these can be termed as urgent repairs. According to the Residential Tenancies Act, urgent repairs in relations to residential premises refers to repairs to the property that are important for the supply or restoration is a service approved in the regulation as an important service to avoid exposing the tenant to risk of injury, exposing property to damages or causing the tenant undue inconveniences’ or hardships. Tabitha can carry out necessary remedial works, as the repairs are urgent. It is the term of every residential tenancy contract that in case of need of urgent repairs, which have not resulted from a tenant’s breach, he or she should inform the landlord of the need for the repair as soon as need arises. Tabitha may arrange for the repair to be undertaken by a good repairer to the minimum extent required to undertake the urgent repairs. Saul should reimburse Tabitha any reasonable expense incurred. Question 3 In terminating the Paul’s sub-lease because of non-payment of rent, James can ask the Cynthia to take proper action to evict Paul A sublease does not free the landlord-Cynthia- from her obligations. If rent is not paid, the landlord can pursue collection from James, Cynthia or both parties, regardless of who is accountable. For this reason, a sublease agreement should have an indemnification clause, which states that the sublessor will pay rent as required. The Property Law Act stipulates a sub lease agreement should have a provision, which states that during the term of the covenant, the lessee will pay the rent stipulated in the agreement. Cynthia has the option of terminating the sublease by sending to Paul a notice stating and specifying the date from which the termination is effective. After receiving the notice about Paul’s failure to pay rent, Cynthia can send Paul a notice within thirty days and not more than ninety days after the date from which the tenant sends the notice. Cynthia may, at her option lease the space recaptured to another tenant. Cynthia can terminate the head lease of James as soon as she lawfully can. Cynthia can end the head lease by exercise of a break clause. By doing this, any under lease also ends. This means that the sublease to Paul and Cynthia would also end. This usually applies in cases where the tenant or landlord exercised the break. The Residential Tenancies Act applies to the under lease, a statutory tenancy will come about after the underlease termination. The under tenants can then request a renewal tenancy from the head lease under this Act. Cynthia has to ensure that the correct provisions are incorporated with a break clause to make sure that she can obtain vacant possession. Cynthia can obtain restraining order from a tribunal against Maggie who was a professional nurse but has turned to prostitution. In case a tribunal is satisfied that a risk exists and a tenant can result into severe harm to property or individual injury, the tribunal makes an order which restrains the tenant or sub tenant on the property from engaging in behaviour that is described in an order. Cynthia may also apply to a tenancy dispute by the sub lessor to the tribunal. The tribunal can restrain an action breaching the residential property act, rooming house agreement or a residential tenancy agreement. The lease by Cynthia prohibits the erection of any external signs on the external walls and the carrying on of any immoral activity or trade on the premises and this means that all the actions of the sub-tenants are in contravention of what is stated in the lease. The tribunal may restrain all these actions because they are in breach of the residential tenancy agreement. Cynthia may forfeit James lease on the account that he recently fixed a plaque to the outside wall advertising his surgery times. The residential tenancy agreement stipulates that the tenant should not carry out trade on the premises. The tribunal can order James to make a recompense, which may comprise the compensation under the Residential Tenancies Act Reference List Bradbook, McCallum and Moore, 1983, Residential Tenancy Law and Practice – Victoria and South Australia, Ch. 4) Lace v Chandler {1944} KB 368 Liverpool City Council v Irwin [1977] AC 239. Miwa Pty Ltd v Siantan Properties Pte Ltd. Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 Residential Tenancies Act WA (1987) Read More