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Lease Start here with the question: ‘ Is the agreement oral or written’? Oral Agreement Is the total term 3 years or less? If NO ( ie: longer than 3 years) unenforceable  See s11 PLA  See s59 PLA If YES ( less than 3 years) Does the tenant have possession of the premises? If YES ( tenant in possession) It’s enforceable as a short lease. See s12(2) PLA If no possession Is there evidence of part performance? see: s6(d) PLA  Moore v Dimond  Regent v Millett  One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Development Pty Ltd  South Coast Oils ( Qld and NSW) Ltd v Look Enterprises Pty Ltd If YES (ie: part performance)  s6(d) PLA, exception to s59 PLA  may be enforceable in equity o Walsh v Lonsdale o Chan v Cresdon Is specific performance available? o South Coast Oils ( Qld and NSW) Ltd v Look Enterprises Pty Ltd o Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd If YES ( possibility of specific performance)  Enforceable in equity to create legal lease  May also be tenancy at will 1. Entry into possession ( no rent) o Tenancy at will o S137 PLA reasonable notice 2. Possession + Payment of rent o CL yearly tenancy o Moore v Dimond o s129 PLA CL tenancy at will determinable on one month’s notice

If no possibility of specific performance - unenforceable So, back to the initial question….. Is the agreement oral or written? WRITTEN AGREEMENT If in writing Is it registered?  If yes enforceable at law  If no Is it for 3 years or less? if yes - short lease s185(1)(b) LTA - enforceable at law If no = lease not valid at law - possible damages for breach of contract BUT may have life in equity as an equitable lease - Walsh v Lonsdale- potential to apply for Specific Performance to create legal lease. 1. Entry into possession ( no rent) o Tenancy at will o s137 PLA reasonable notice 2. Possession + Payment of rent o CL yearly tenancy o Moore v Dimond o s129 PLA- CL tenancy at will, determinable on one month’s notice

COVENANTS ( contract clauses, enforceable promises) can be either  express or  implied - Lessor Covenants - Lessee Covenants

Implied Lessor Covenants - Quiet Enjoyment  peaceful occupation  free from interruption - Not to derogate from grant ( e.g the tenant runs a manufacture business, don’t shut the power off, it shut down his business)  not to act inconsistently with purpose for which premises leased Implied Lessee Covenants  Pay rent s105PLA

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Not to commit waste s104 PLA Allow lessor to enter and view s107(a) and (b) PLA Yield up possession ss138 and 139 PLA Right to take emblements ( crops) Kirby v Caruso Use premises in a tenant-like manner Warren v Keen Keep property in repair o long leases – s 105(1)(b) PLA can be contract out of o short leases- s106(1)(b) PLA o consider meaning of ‘repair’

Assignment ( simply, transfer) o If assignment permitted and consent required then s121 PLA applies o assignment to be in writing and signed to the effective (s11PLA) o if registered lease, assignment to be registered (ss60-62 LTA) o consider implications of assignment effected in breach

Termination o expire of term - Automatic - No notice required o notice to terminate -ss129-137 PLA -used to end periodic tenancies only o surrender -express -operation of law  based on doctrine of estoppel  question of fact  lessee bears onus of proving lessor accepted surrender  lessor can apply to have surrendered lease removed from title (s69 LTA) o merger ( buy the premise from the landlord) -requires intention -lessee buys freehold reversion -third party buys both freehold and leasehold interests o frustration - based pm contractual principles - rarely occurs only where land disappears - historically didn’t apply to leases o forfeiture and re-entry - breach of fundamental term s107(d) PLA  rent in arrears for one month

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 breach of other covenant for two months lessor can either  ignore breach  waive right to re-enter and sue lessee for damages  re-enter and forfeit lease

Waiver ( not kicking out, just want what you should have done) o breach itself not waived o s119 PLA- only right to re-enter and forfeit for that breach waived o lessee to prove  lessor actually knew about breach  lessor has done some ‘ unequivocal act recognising the continued existence of the lease’  McDrury v Luporini Forfeiture and Re-entry s124 PLA  Notice in approved form  must specify particulars of breach  remedy of breach required  particulars of any monetary compensation claimed  give reasonable time What if Notice is invalid? Incorrect or incomplete:  Ex Parte Taylor  Suga Pty Ltd v Trust Co of Australia Ltd  Mckay v Blumson “ Reasonable time”  Suga Pty Ltd v Trust Co of Australia Ltd  Mckay v Blumson  BBF Toowoomba Pty Ltd v Nebrean Pty Ltd Then what?  Lessor has to start again!  If Lessor proceeds with forfeiture, Lessee can seek relief against forfeiture  s123(2) PLA  Equitable jurisdiction  Court will consider - the proceedings - conduct of parties - “ all other circumstance” Forfeiture and Re-entry  How? -physical -constructive unequivocal verbal or written demand for possession -Ex Parte Whelan  What then?

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Forfeit and sue for damages  rent outstanding  physical damage caused by tenant  perhaps future rent Shevill clause or repudiation by tenant remove lease from title (s68 LTA)

RETAIL SHOP LEASES ( Retail Shop Leases Act 1994) Five step process - General application of the Act  s12- Qld retail shp leases  s16- can’t contract out  s17- Act prevails over inconsistent leases - What is a retail shop lease?  s5A - What is a retail shop?  s5B ( either/ or test) - What is a retail business?  s5C- see Regulations- Schedule - What is a retail shopping centre?  s5D Protecting them against big shopping centre landlord Before 1994, there is no protection.

So, the RSLA applies. What does this mean? Disclosure  s21B- Lessor to Lessee  s21E – Lessor to Renewing Lessee  s21F- if invalid or no Disclosure, Lessee can terminate lease within 6 months after entering into lease and can claim damages  BUT- there are restrictions on termination  s22A – Lessee to Lessor  ss22B(1)-22C (3) – All parties to an assignment  s22D(1),(2) – Legal and Financial Advice Certificates required What else? ss24 – 50B - Minimum lease standards – Payments permitted (if stated in lease = rent, outgoings, damages for breach, interest on arrears, indemnity for lessor’s loss or damage, lessor’s reasonable legal fees on variation of lease, consent to sublease) – Turnover rent – Rent review. ( no ratchet clauses) • Ratchet clauses now void – Outgoings - Key money and goodwill

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Renewing lease  with option o lessor to remind lessee when to renew lease  without option o lessee can request renewal o lessor not obliged to grant extra term o BUT if lessor doesn’t reply, lessee gets benefit of 6 month holding over period on same terms as lease  release of assignor on assignment ss55-83 Disputes - Mediation - QCAT...