Law Notes Property and Equity 2 Notes
UNSW Property and Equity 2 notes. Includes detailed case and materials notes and super summaries ideal to take into an open book exam. Structure of cases and materials notes:
Class 1: The Torrens System and Indefeasibility
Class 2: Indefeasibility of What?
Class 3 - The in personam exception
Class 4 - Other exceptions and overriding statutes
Class 5 - The register, equitable interests and caveats
Class 6 - Competing equitable interests
Class 7 - Co-ownership
Class 8 - Rights of enjoymen...
The following is a more accessible plain text extract of the PDF sample above, taken from our Property and Equity 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
The landlord’s primary remedy lies in his/her capacity to bring the lease to an end prior to expiry – forfeiture of the lease
Because of the drastic nature of this remedy (especially in long term leases) – strict procedural requirements must be met before this right can be exercised:
An express right to forfeit in the lease or implied by statute must be present
The tenant must have breached the lease
The landlord must serve notice unless the lease/breach comes within an exception to this
The breach must be current at the expiry of the notice period
The landlord must effectively forfeit the lease
The tenant must not have been granted RAF
At common law a landlord had no implied right to bring the lease to an end and had to wait for effluxion of time – but leases would generally confer an express power on the landlord to terminate in the event of a breach. Due to this remedies extreme nature, equity and now statute regulated it tightly:
Unless a formal demand was made for rent, failure to pay would not entitle forfeiture – unless the landlord was entitled to by express stipulation by the lease (which was then often done)
S 8 of the Landlord and Tenant Act provides that where one-half year’s rent is in arrears, re-entry may be effected without formal demand
S 85(1)(d) provides re-entry for breach of a covenant for a month, after two months if it has not been remedied
Where a tenant breaches a covenant other than rent, legislation provides some protection for the tenant by requiring notice. S 129 (1) of the CA provides:
A right of re-entry for breach of a covenant, condition or agreement in the lease is not enforceable unless and until the lessor serves on the lessee a notice:
Specifying the particular breach complained of; and
IF the breach is capable of remedy, requiring the lessee remedy it; and
If the lessor claims compensation, requiring the lessee to pay it
and the lessee fails within a reasonable time to remedy the breach, if it is capable of being remedied, and compensation is required to pay reasonable compensation to the lessor for it
Exceptions are provided for in the Act (for example in the case of leases of one year or less (s 129(6)(a))but the section has effect notwithstanding any stipulation to the contrary (s129(10)). Furthermore the act doesn’t affect the law relating to re-entry in the case of non-payment of rent (s129(8))
The purpose of this is to allow tenants to remedy breaches before the matter reaches court
This procedure has to be followed even if the breach is irremediable (in which case the notice needn’t require the breach to be remedies – Horsey Estate v Steiger)
The requirement of demanding compensation isn’t mandatory – the landlord does not have to if he does not want to (Rugby School v Tannahill)
The breach must be specified – mere identification of breach of a particular covenant without detailing the particular damage will be ineffective (Gerraty v McGavin)
In the cases of breaches incapable of remedy:
Notice operates to give the tenant an opportunity to consider his or her position
In the case of assignment without consent the notice must be directed to the assignee since the assignment is effective notwithstanding the breach (Chelfield v Goldsea)
A test was posited by Slade LJ in Expert Clothing Service v Hillgate House for cases of positive ‘once and for all ‘ covenants
The only instance in which failure of the s 146 notice to require a remedy of a breach would be justifiable is IF “compliance with the notice, coupled with the payment of any appropriate monetary compensation” would not have effectively remedied the breach
This test was applied for a negative covenant (Savva v Houssein – tenant breached covenant not to display and not to make alterations without consent)
Scala House and Distrct v Forbes asid that breach of a covenant to sublet is never capable of remedy; this is questionable in light of the above tests
Tenants must be given a ‘reasonable time to remedy the breach’ (s 129(1)) which will usually be three months (Penton v Barnett) but it depends on the circumstances:
Billson v Residential Apartments – 14 days enough since the tenants disregarded all prior warnings and indicated no intention to remedy it
For irremediable breaches a shorter time is allowed
Civil Service Co-op Society v McGrigor’s Trustee – 14 days reasonable between service and re-entry
Courts generally resist attempts to circumvent legislation for notice a prelude to forfeiture:
Plymouth Corp v Harvey
Facts: Tenant required by landlord to execute deed of surrender of the lease in escrow – this was to become effective if the tenant breached a covenant in the lease
Held: The deed of surrender provided for forfeiture under the guise of surrender and since the landlord didn’t comply with statutory requirements the purported surrender was void
Holden v Blaiklock
Facts: Residential lease in standard form provided that on breach, the tenancy should, at the landlord’s option, become a tenancy from week to week terminable on a week’s notice
Held: This comes within s 129 and hence the notice provisions must be complied with
If the landlord elects to treat the lease as still in force the landlord is said to waive the breach – this can be express or implied
It is implied if the landlord is aware of the tenant’s breach and performs some act clearly recognizing its continuance (e.g. accepting rent).
But once the landlord has finally and unequivocally elected to treat the lease as forfeited, no subsequent act can amount to waiver
NGL Properties v Harlington – the issue and service of a writ by the landlord claiming possession on the ground of the tenant’s breach was effective to terminate the lease regardless of subsequent discontinuation of the action
Lidsdale Nominees v Elkhardly – landlord’...
Buy the full version of these notes or essay plans and more in our Property and Equity 2 Notes.
UNSW Property and Equity 2 notes. Includes detailed case and materials notes and super summaries ideal to take into an open book exam. Structure of cases and materials notes:
Class 1: The Torrens System and Indefeasibility
Class 2: Indefeasibility of What?
Class 3 - The in personam exception
Class 4 - Other exceptions and overriding statutes
Class 5 - The register, equitable interests and caveats
Class 6 - Competing equitable interests
Class 7 - Co-ownership
Class 8 - Rights of enjoymen...
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