Leases and Licenses

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Leases and Licenses
Sophia Lynch
Flashcards by Sophia Lynch, updated more than 1 year ago
Sophia Lynch
Created by Sophia Lynch over 1 year ago
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Question Answer
What is a lease? A lease is an "interest in land" and gives "possession". A license does not.
1 Is it a...? Is it a lease or a license?
1.1 What...? What type of lease?
1.1 a Legal lease Legal lease = s 24 of the Property Law Act (PLA) states it must be in writing and signed.
1.1 b Short-term lease Short-term lease: 1. Made orally or in writing. 2. It is a "legal interest" as per s 209 of the PLA.
1.1 c Equitable lease/Unregistered Walsh Equitable lease/Unregistered: Walsh: 1. Are unregistered. They cannot be registered but they can be enforced. 2. Will be treated in equity as a lease if written or partly performed because unconscionable not to.
2 Test for... Test for if something is a lease.
2.1 Fatac Fatac: 1. Grants exclusive possession.
2.2 Fatac Fatac: 2. The possession is for a finite term or period.
2.3 Fatac Fatac: 3. Rent is usual but not essential, however it is a factor that shows they are contractually bound.
3 (Element 1) Finite Term: Factors to consider.
3.1 Time of leases? They can be periodic or dependent on an event as stated in s212.
3.2 What can leases be? Leases can be discontinuous if certain.
4 (Element 2) Exclusive possession: Factors to consider.
4.1 NZ Fish Look to construction of contract: 1. Can they exclude people? 2. Does landlord need permission to act on their land?
4.1 a NZ Fish If cannot exclude people - NO LEASE. If landlord doesn't need permission - NO LEASE.
What is not relevant when it comes to leases? The parties' intent. This is an objective matter.
4.2 Sealink (Exclusive possession test) Sealink 1. Physical control and intention. (requisite degree of custody and exclusive physical control).
4.3 Sealink (Exclusive possession test) Sealink 2. The parties intend the person leasing shall exercise custody and control for their own benefit. (Objective assessment).
Why do you not automatically have a lease if you have these things? You also need it to be for a finite term.
4.4 Moncrief Moncrief Just because the amount of land reserved for the owner may be small this does not mean there is no possession. (Garage for example).
5 (Element 3) Rent: Fatac: Rent is an important indicator of an intention to be legally bound but its absence does not negate tenancy.
6 Has there been...? Has there been a wrongful cancellation?
7 There must be...? There must be a breach.
7.1 If there is a lease... 1. If there is a lease, both the vendor and the tenant have the right to cancel.
7.2 Have they breached? 2. Have they breached the covenants of the lease.
7.2 a How do they breach a covenant? If rent not paid for a covenant is breached for 15 working days this is a breach of s 244 of PLA.
7.2 b Do licenses and leases have the same covenants? They may not but if it is not expressly stated that they are different, assume they are the same.
6 What should you consider? Have the procedures been followed?
6.1 Why can't you vary s243 onwards? You cannot vary this section because it sets out how a lease may be cancelled. It is statute and therefore cannot be undermined.
6.2 How long should you wait? And what should the owner make sure they do? 1. You need to give the leasee 14 days to remedy before it becomes a breach. 2. The owner must serve formal notice.
7 Is ____ available? Is relief available?
7.1 What does the court have? The court has full discretion (the freedom to decide).
7.2 Mullholland Mullholland: 1. If rent is missing, pay. 2. There is a presumption there will be a relief.
7.3 Sibrad, Strong If other breach... 1. Consider how easy to remedy. 2. Note relief can be subject to conditions not being met.
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